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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.

FILED
Jul 09 2009, 9:30 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: LISA M. JOHNSON Special Assistant Marion County Public Defender Agency Brownsburg, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JERRY EMERSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0809-CR-848

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton-Pratt, Judge Cause No. 49G01-0805-MR-107649

July 9, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Following a jury trial, Jerry Emerson was convicted of murder, attempted murder, criminal confinement, and carrying a handgun without a license. In this direct appeal, Emerson makes a number of fundamental error claims: the jury instructions failed to inform the jury that, to be guilty of attempted murder as an accomplice, Emerson had to have the specific intent to kill the attempted murder victim, the prosecution improperly commented upon his exercise of the right to a speedy trial and his failure to testify, and the trial court improperly admitted into evidence a handgun, evidence of prior bad acts, and evidence that a witness was reluctant to testify. Finding no reversible error, we affirm. Facts and Procedural History On July 30, 2007, Emerson and Samuel "Buddha" Fancher were driving in an Indianapolis neighborhood and spotted seventeen-year-old Leroy Moorman and sixteenyear-old Ryan Sampson. Emerson and Fancher recognized the teenagers as people who had previously broken into their house. The two men forced Moorman and Sampson into their car at gunpoint and drove them to a vacant residence. Once there, they took Moorman and Sampson to a bathroom and shot them. Sampson was shot multiple times, including in the head, and died at the scene. Moorman was shot in both arms and lay on the floor with his eyes closed until Emerson and Fancher left. He then went to a nearby residence for help. Moorman survived the shooting. Later, Emerson told Curtis Williams about the shooting. Williams testified at trial that Emerson described the shooting as follows: 2

As soon as I got to the mother f***ing house, I shot that mother f***er dead in the head. This little b**** [Fancher] was gonna do the same d*** thing, but he wanna give mother f***ers body shots. I told him that body shots dont work, and [Fancher] said, he thought he was dead, too. Tr. p. 206-07. After Williams subsequently learned that he was distantly related to Sampson,1 he told an uncle and later the police what he knew. The State charged Emerson with murder,2 attempted murder,3 Class B felony criminal confinement,4 and Class A misdemeanor carrying a handgun without a license.5 The case proceeded to a jury trial. At the conclusion of trial, Emerson was convicted as charged. Appellants App. p. 130-33. Emerson now appeals. Discussion and Decision On appeal, Emerson makes the following claims of error: (1) the jury instructions failed to inform the jury that, to be guilty of attempted murder as an accomplice, Emerson had to have the specific intent to kill the attempted murder victim, (2) the prosecution improperly commented upon Emersons exercise of his right to a speedy trial, (3) the prosecution improperly commented upon Emersons failure to testify, (4) the trial court improperly admitted into evidence a handgun, (5) the trial court improperly admitted

Williams and Sampson were not related by blood. However, Williamss uncle has two children with Sampsons mother. Tr. p. 32.
1 2

Ind. Code

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