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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: MARCE GONZALEZ, JR. Dyer, Indiana

FILED
Dec 20 2010, 9:12 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RICHARD. C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
COREY J. SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff, ) ) ) ) ) ) ) ) )

No. 45A05-1004-CR-221

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas Stefaniak, Jr., Judge Cause No. 45G04-0712-MR-00014

December 20, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Corey Smith appeals his convictions, following a jury trial, of murder, a felony, two counts of attempted murder, Class A felonies, and two counts of aggravated battery, Class B felonies. He raises three issues for our review, which we restate as: 1) whether the trial court committed fundamental error in permitting the State to inquire about Smiths gang affiliation, 2) whether it was prosecutorial misconduct to ask a witness if he had been threatened with harm for testifying against Smith, and 3) whether the cumulative effect of improper questions by the State denied Smith a fair trial. Concluding in the negative as to all three issues, we affirm. Facts and Procedural History In the early morning hours of April 13, 2007, Tiara King, a teenager, snuck out of her home to meet Anthony Jolly, who was parked just outside. As she neared Jollys car, she saw another car nearby that she recognized as belonging to Brandon Hunter. King entered Jollys car, Jolly introduced her to the only other passenger, Nicholas Hall, and they drove away. As the trio arrived at their destination but while still in the car, King saw Hunters car again, this time approaching Jollys car. Hunter was driving and "a dark heavy set guy [with] gold teeth" was the only passenger. Transcript at 54. King saw the heavy-set male point a gun out the window and begin firing. King ducked. King survived seven gunshot wounds; Hall survived two gunshot wounds; and Jolly was killed by the gunfire. Smith was charged for the murder of Jolly, attempted murder of Hall, attempted murder of King, aggravated battery of Hall, and aggravated battery of King.
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At Smiths trial, Hunter testified that because of a deformity of his arms, he could not physically fire a gun and that Smith was the sole shooter. Smith called his own cousin, Matthew Smith, to impeach Hunter with testimony that Matthew had known Hunter for many years and had seen him fire a gun. Prior to Matthew testifying and outside the presence of the jury, the trial court and counsel for Smith and the State discussed the State possibly questioning Matthew as to his and Smiths gang affiliation. The trial court stated: [W]hile it is prejudicial against [Corey Smith] to bring in gang affiliation in a trial, it would be allowed for the purpose of establishing the extent of the relationship between Corey Smith and [Matthew Smith]. And any potential bias [Matthew] may then have to fabricate. It is not being admitted to show that in some way [Corey Smith] is a bad man or bad character because of his gang affiliation. And I would give the jury the admonishment, if you [(the State)] do, in fact, insist on questioning in that regard. Id. at 481. affiliation: Q: And how long have you known Corey? A: I have known Corey all of my life. Q: Would you guys say you had a good relationship with each other? A: Yeah. Q: He is like a big brother to you? A: Yes. Q: Always help you out? A: Yeah. Q: And you guys are both in the Vice Lords together, too, right? A: No, I dont know what you are talking about. Q: You dont know what I am talking about? A: No. Q: You have never heard the [sic] gang Vice Lords? A: I heard of lots of gangs. I heard the [sic] Vice Lords, but I am not a member of the Vice Lords. Q: What about Corey, is he a member of the Vice Lords? A: No, he isnt.
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The State questioned Matthew as follows about his and Smiths gang

Q: So if Corey was on

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