*1 County City Commission, Plan Howard v. Kokomo standing parties these also lack 330 N.E.2d challenge question. constitutionality the statute judgment denying Accordingly, of the trial court sought hereby solely relief affirmed such basis. All concur. Justices Reported at 338 N.E.2d 257.
Note. — Lee Indiana. Herman Carroll State 10, 1975.] 674S127.Filed December [No. *2 George Power, Ponton,
Samuel H. G. Power, Ponton & Nichols, appellant. Monon, for Sendak, Attorney
Theodore L. General, Lockhart, Walter F. Deputy Attorney General, appellee. for Lee charged J. Herman Carroll was indicted and
Hunter, degree Hayes. with first murder the death of Anna Lee pleaded guilty by He not reason of self-defense. After trial by jury, degree he was convicted of murder second sen- and tenced to not than fifteen twenty-five less more than nor eight years. appeal, In presented. issues are
I. Article Section 13 of the Indiana Constitution Ind. and (a), (1974 (a) 35-1.1-2-1 Supp.), provide Code Burns 9-201 § § county that an accused shall be tried in the where the offense establishing proof venue, committed. was state on examination County re-direct its witness, asked the Pulaski Surveyor, Hayes whether house which Anna Lee was County. Pulaski killed was located stated that he if asked this witness defendant On re-cross it was. boundary Pulaski northern legally established had ever scope objected County, outside to which the state as objection, and The trial court sustained of re-direct. assignment urges ruling of error. his first surveyor the house examination the stated On direct County it was the south because on side in Pulaski County part Pulaski northern divides the Road County. cross-examina- part of On the southern Starke from brought neither a licensed out that witness was tion it was based surveyor engineer, nor that his survey. posed question inspection, not a a visual might have re-direct was redundant and the state on Allen, Hudspeth ground. objected excluded on object, attempted but did 165. re-emphasize points on cross-examina- made in re-cross beyond question Although redundant tion. urged by state, the witness scope re-direct as *3 ruling the permitted answer. The to have should extensively Appellant court, however, is not reversible. appellant Moreover, did witness. cross-examined the crime occurred that the object other stated when witnesses County. in Pulaski
II. killing the evening appellant struck the of the On knocking fist, her in the with his face mother decedent’s testimony, introduced the state During out. the mother’s evening by the mother, taken that photographs two showing swollen Beckton’s purpose Mrs. police, for photo- these objected the introduction of to face. to not relevant properly authenticated graphs as not objection trial court overruled guilt or innocence. photographs. admitted anything a that evidence Photographs are admissible to to, if identified testify might permitted himself witness State, and verified witness. Hawkins v.
219 Ind. 37 N.E.2d to introduction 79. Prior testified, photographs question, in of the the witness eye for objection, her without that she couldn’t see out of clearly about three Exhibits such two weeks. A and B show right Although swelling eye. witness’s pictures taken, testified could not recall when the were she photographs “just looked I that like it did when looked got I home.” That is sufficient the mirror when statement representations identify photographs that true they purport portray, and hold that the exhibits we properly were authenticated. B probable
Exhibits A and were to render offered more appellant the inference that struck Mrs. Beckton. For purpose photographs such were relevant. fact of however, determining was, such assault not an issue in appellant Hayes. whether Anna Thus, killed Lee tra- under analysis, evidentiary say photo- ditional we would that relevant, graphs material, were but not they tend to prove Nevertheless, enjoy a fact in issue. trial courts determining wide latitude in what evidence shall be admitted. say cannot the trial its We court abused discretion in admitting B, support Exhibits A and exhibits leading testimony describing of Mrs. events Beckton’s up to the murder.
III. Ollie Mae and her Wakefield Emerson husband in the were Hayes shooting house with Anna Lee when the occurred. testimony placed Mrs. Wakefield’s outside get pounding door, trying house on the in. point At this the record reads: *4 QUESTIONS
DIRECT BY PROSECU- EXAMINATION — TOR TANKERSLEY Q Emerson seated?” “Was still
A “Yes.”
700 anything
Q you say ?” “Did either of ” says Lee, ‘Don’t the doors.’ unlock “Yes, A he to Anna Hearsay un- this is Now “OBJECTION! PONTON: MR. con- Defendant hear the could less it is shown uh, going inside of the that were on versations house— him, Hearsay inadmissible as to they would evidence.” her objection, and let “I’ll overrule that
THE COURT: go on.” testify what did toas the truth offered court for statements Out-of-court hearsay. 261 Brooks, (1973) Blue v. are therein matter underlying policy 269. The N.E.2d rights party protect the hearsay rule is to giving by against the statement is offered whom making person it. U.S. opportunity to confront him 1961), Supp. Corp. F. 370. (N.D. Ind. Homes National asserter in Ollie Wakefield, the out-of-court Here, Emerson subject cross- testimony, in court and Mae Wakefield’s testified, without fact, Emerson Wakefield In examination. go Anna Lee not Mae warned objection, that Ollie overruling objection. appellant’s error There no door. appel particular answer set out above which It not the objection, have virtue excluded lant now seeks exclusion of a statement the same He seeks however. questions forty later, witness, appearing some answers said, Lee shot she “That son-of-a-bitch Anna that after support of his contention shot me.” me, hit done Roush, (1949) App. 481, 119 Ind. 85 N.E.2d Neuwelt v. cites following rule from 53 506, quoting the AM JUR. § (1945) : objection generally that when an has once “It held repeated to overruled, not be it need distinctly made and evidence, since be assumed that
the the court will class of same throughout ruling trial.” adhere to objection may be deciding appellant’s Assuming without lines continued, nevertheless, we find the to have deemed *5 quotation in Neuwelt following but not the above set out decision, are relevant: testimony object continuously character
“To after same approaches proper it the trial has said was court ruling But it disrespect the court. for the objected questions are once that where been held to and not answered repeated and later and are objection is objection, the waived.” answered without answered question previously was asked Here, same objection. The Wakefield, without similarly Emerson statement, admitting any, in Mrs. error, Wakefield’s if waived.
IV. examination, Mae an direct On Ollie Wakefield described exchange gunfire Hayes appel- Lee between Anna prior to the fired— Ollie Mae stated that first lant. shot opened the came from outside the house —Anna Lee leaving door, only Lee the outside kitchen door between Anna cross-examination, appellant. read and the On defense counsel deposition, in Mae from her wherein she stated essence Ollie opened first shot fired. that the kitchen door was after examination, al- state, objection, On re-direct over depo- questions additional and answers from lowed read its witness. to rehabilitate sition using precluded the state was from asserts that complied deposition it until with IND. RULES OF CIVIL governing
PROCEDURE, deposi- Ind. R. Tr. use of P. ap- procedure civil proceedings. in The rules of are tions court proceedings they in plicable criminal insofar are criminal rules. IND. CRIMINAL conflict RULES OF with 32(A) PROCEDURE, R. Tr. Ind. R. Crim. P. 21. Ind. P. part: provides pertinent hearing of a depositions. At the trial or “Use of proceeding, any interlocutory part or all of or an
motion evidence under the rules far as admissible deposition, so though present testi- then the witness were applied as party fying, represented any one [1] party whose favor was who be used at the following provisions: had taking against reasonable notice any given party deposition, by in accordance who was thereof or present or with by any against any or “(1) Any deposition may by any party be used for purpose contradicting impeaching or deponent aas witness. “(2) deposition party, agent person or or party testify authorized furnish such evidence anyone or of taking who at the deposition time of *6 officer, managing an of a director, agent, or officer executive designated person 30(B) (6) Rule 31(A) under or to testify govern- organization, including on behalf of an a partnership mental organization, or party may which is a any party by purpose. an for used adverse “ (3) deposition witness, of a party, whether or a not may by any party any be used purpose for if the court finds:
“(a) dead; That the is or witness “(b) that the state, witness the is outside unless it appears that the by absence of the procured witness was party offering deposition; the the or “ (c) the that witness is unable attend testify to or be- age, sickness, infirmity, cause imprisonment; of or or “(d) party offering deposition that the the procure the unable attendance of the sub- poena ; or “(e) upon application notice, exceptional that and such desirable, as to it circumstances exist est make inter- regard justice importance and with due to the of of presenting orally open court, witnesses used; deposition to be or allow “ agreement parties. (f) of the only part deposition “(4) If is offered in evidence by all party, party require an a adverse him to introduce part any is relevant introduced, of which any parts.” party may introduce other deposition his use Appellant sanctions of the under R. Ind. (1). attempting the state 32(A) Tr. P. Since to rehabili- impeach witness, appellant argues tate —not that —its usage remaining justify pro- one its under of the state must 32(A) clearly P. (2) rule. Ind. R. is in- of the Tr. visions
703 applies only depositions provision that applicable since organiza- spokesperson parties agents, or the their argues that state failed to demonstrate tion. grounds P. any out in R. Tr. presence set Ind. brief, replied 32(A) (3) ; not in its state has allegation. R. Tr. P. Finally, appellant that Ind. maintains requires 32(A) rule that (4) inapplicable is because the party” deposition be “offered in evidence a deposition evidence. formally offer the into did not any deposition, 32(A) permits Tr. use of P. R. non-party witness, impeachment party for whether purposes. case, questions and answers hope trier that are to the testifier read testimony of the in-court of fact conclude will uniformly worthy It understood the witness is belief. deposi deposition is collateral and that such use of a proof disputed as substantive tion introduced (4th Transp., Refrigrtd. Inc. Cir. issue. Proctor v. Colonial 89; Rogers (10th 1973), 477 1974), Roth 494 v. Cir. F.2d 273; 1939), 1154; (3d F.2d Cir. F.2d Townsend v. U.S. 1939), Corp. Transp. (D. Air Lewis United Lines Conn. Wigmore, EVI F.Supp. ON 946. See also WIGMORE *7 Willis, 1972) ; (Chadbourn and Pike DENCE Rev. 1132 § II, Deposition-Discovery Procedure: 38 The New Federal (1938). L. 1436 COLUM. REV. time, 32(A) (3) R. Tr. severely
At Ind. P. limits the same depositions non-party of the use at trial of witnesses sub as Generally, deposition may a not be evidence.1 stantive unavailable. The introduced unless the witness is reason for cogently expressed (10th in Salsman v. Witt Cir. the rule 1972), F.2d 76, 466 79: virtually depositions party 1. Contrast unlimited use of the of
witnesses, 32(A) (2), Tr. as substantive evidence under Ind. R. P. irre- spective Fey presence Co., (7th & of their in court. v. Walston Inc. Cir. Serv., 1036; Community 1974), Counslng. (4th Reilly 493 F. 2d Inc. v. Lines, (E.D. 1963), 239; 1973), Cir. 317 Va. F. 2d Lassiter v. Inc. U.S. 427, F. 370 Supp. “The imposed 32(a) various (3) upon restrictions Rule depositions the use of at trial make it clear that there has change long-established been no in principle testi- mony by deposition should is less than oral desirable ordinarily only be a substitute used as if the witness Wright testify person. Miller, be unavailable to in Or, Federal Procedure, Practice and as was Civil: 2142. § Judge Hand, Napier Bossard, Learned stated F.2d 467 and still used suggests v. been, to itself (2d 1939) deposition always Cir. : ‘The substitute, is, second-best, be treated not as original Indeed, hand.’ when the is at the rule importance presenting testimony of of ‘the ” orally open court.’ witnesses present Here, ap- in court the witness it does pear exceptional either that there were circumstances R. [Ind. 32(A) (3) agreement (e)] parties or Tr. P. R. [Ind. 32(A) (f)] deposition. Tr. P. to admit the We conclude deposition justified, all, use of the state’s if at (A) (1) (A) (4). Ind. R. Tr. P. 32 under or Ind. R. Tr. P. 32 impeachment tactic by prior inconsistent state- multi-staged. First, ment is necessary foundation must be Secondly,
laid. impeaching statement is read to Finally, the witness. at point some further in the proceedings, may explain the statement or, alternative, present prior evidence of consistent Thompson State, (1944) statements. 223 Ind. 58 N.E.2d explanation prior Where the witness’s 112. or consistent part deposition is a statement of the same from which the adduced, inconsistent statement place does undue “contradicting impeaching” strain the words 32(A) P. R. Tr. to hold that such words embrace the entire process impeachment, and so sustain the state’s use deposition (A). under Ind. R. Tr. P. 32
Alternatively, reject appellant’s reading we narrow 32(A) (4) applicable only Tr. Ind. R. P. where deposition is itself offered as substantive evidence. Rogers (10th 1973), v. Roth F.2d Cir. Appeals 1159, the Tenth Circuit Court held that *8 deposition “. . error admit . much of the reversible to so it was subsequent inconsistent state- properly a used show was as in the ment, complete the declarant answer of because incomplete only part. This deposition used, but was purposes, impeachment misleading. When, . .” for . deposition 32(A) (1), a read to Tr. P. under Ind. R. contemplates “offering” jury, is all which law 32(A) (4) evidence, Tr. becomes Ind. R. P. for such presentation. operative to insure a balanced and undistorted 75; Indianapolis Wagon Works, (1874) 48 Ind. Scott v. See Brown, App. 6, Mc- (1900) 25 Ind. 56 N.E. Gemmill EVIDENCE, 41 and Cormick, n. §56, McCORMICK ON therefore, (2d 1972). We, accompanying hold text ed. pursuant proper introduce to allow state to
it was deposition relevant (A) (4) portions Tr. P. those of the R. impeaching statement. V. Appellant objects to the admission into evidence of state’s square, photograph is a exhibit G-l. G-l color decedent, lying autopsy on table. The chest has decedent’s open. appears pair been laid Over the chest decedent’s surgical gloves. organ left holds hands hand which right appears probe heart. The hand be the contains a organ. pointed portion toward darkened during photograph This introduced present autopsy officer took law who was at the and who charge of corpse during the bullets removed from post-mortem. Subsequently, Dr. P. Thomas de Graffenreid appearing hands testified that the in G-l were He made his. photograph during testimony, other no reference but did state that cause of death “a massive hemor- rhage pleural cavity gunshot left into the due to a wound which lacerated aorta.”
Appellant objected photograph to the admission value, inflammatory, probative prejudicial and devoid *9 State, Pierce 650, 557, 253 Ind. 256 we N.E.2d stated: might “The of photograph fact that the passions arouse the jury ground justify is not sufficient a itself to its is photograph exclusion from the evidence if the (1958), material and 239 relevant. v. State Kiefer (1966), 899; Ind. 153 N.E.2d Wilson v. State photo relevancy 221 247 graph N.E.2d 347. The inquiry or or is to be determined whether as objects permitted
not a witness be to describe the would photographed.” scenes Generally, inquiry per- a as to whether witness would be object photographed describe the mitted to focuses through particular Ap- whom the exhibit is offered. plying through photo- such a to the test law officer whom the graph difficulty. introduced is not was without The state urges, present its brief “In case the Sheriff was at autopsy photograph saw, a of what he re- bullets body, clearly moved from the relevant The and admissible.” problem with such rationalization that G-l does show any subsequent bullets. Nor does that a indicate heart, merely bullet was removed from the but states that However, objection bullet there lacerated aorta. no was photograph The itself sheriff’s authentication of G-l. conditionally relevant the cause When to show of death. subsequently that de testified Dr. Graffenreid cause by gunshot any wound, death laceration of the aorta was the cured, proof there no defect in the order of error in the admission of G-l.
VI. refusing trial erred in that court contends give appellant’s instruction No. on self-defense. error, any, by if waived the asserts that state part comply INDIANA OF RULES failure to with 8.3(A)(7), Ap. PROCEDURE, P. Ind. R. APPELLATE set requires “the shall verbatim instruction be out argument objec- in the section of the brief with the verbatim tions, any, Appellant’s if made thereto.” brief out sets verbatim, objection. instruction but does not set out How- ever, requirement, clearly this latter the rule states any.” page “if brief at state’s states “In the record objections proceedings any there is no trace of to the court’s refusal of tendered instruction.” If there defendant’s objection, appellant satisfy no be trace of an has not failed to requirements Ap. (A) (7). Ind. R. P. 8.3 principle that It is a familiar a trial court’s refusal grant only if, instruction tendered will reversed con
sidering case, the evidence substance required given instruction was to be and was *10 by adequately actually covered other instructions State, given. 692, Hash 258 Ind. N.E.2d 770. given by instructions No. 21 No. We hold that jury plea court, adequately appellant’s instructed the on of refusing appellant’s There no error in in self-defense. struction No. 4.
VII.
assigns
overruling
as error the
for
motion
at
a directed verdict made
the close
evidence
state’s
at
and renewed
the close of all the
di
evidence. A
acquittal
only
given
rected verdict of
can
where
there is a total
lack of
on
evidence
some essential
issue, or
susceptible
where the evidence is
only
in
one
ference,
in favor of the accused. Nelson v.
State, (1972)
Here,
259 Ind.
As one convicted (although necessarily included offense the least serious offense) may greater not be included sentenced to a term provided than minimum sentence for conviction of included the least offense. to reach Were we the merits legislature appellant’s why claim, we would ask if suggests, intended the statute read as did phrase any the last read “for included amend lesser *11 adding “any (thus and “s” offenses” words of” However, “offense”). unnecessary we find the word suggested legislative interpretation. The appellant’s reach greater applicable only statute, face, on its when the clear is Ap- and maximum a minimum sentence. carries both a offense degree charged murder, first and it carries pellant with was imprisonment. upon con- Therefore, only sentence —life one degree murder, appellant correctly was sen- of second viction twenty-five years. of fifteen to a term tenced to foregoing judgment trial reasons, of For all court is affirmed. udgment
J affirmed. Arterburn, concur; J., J., Prentice, concurs Givan, C.J. and J., opinion. opinion; DeBruler, with dissents with Opinion Concurring opinion majority in so J. I concur but do Prentice, reluctantly respect the trial I with to Issue IV. Had been which, judge, I would have excluded the Exhibit State’s G-l unquestionably, inflaming, distorting, preju- horrifying, was, opinion, part my in dicial for the irrelevant and most and jury’s deliberately improperly inflame the calculated to slight emotions. The its relevance the exhibit but of necessity apparently Unfortunately, nonexistent. Pierce under by majority, cited, V. State cited such the cases there photographic circumstances evi- do not mandate exclusion of dence, it can be that there relevance —no matter how if said slight.
Although tendency photo- we said of such have passion jury graphs arouse of not a sufficient ground excluding evidence, justify itself to am aware I of such case where there has a reversal reason no exclusion, tendency rele- where the substantial and the slight. wording I, therefore, that the of such vance but believe believing judges into decision misled a number which, of relevance, they have no discretion where there is course, is case. weighing concept photographic the relevance evi- against likely prejudicial valid. availa-
dence effects is stipulations equally bility persuasive of other evidence which, my judgment, may as the exhibit are factors judge determining questions the trial considered admissibility. However, the determination merit of relative province judge and, the trial clear lies within absent error, not be decision should overridden. *12 difficulty the separate with Pierce rule is its failure to grain
the from chaff. It was said in that case photograph inquiry by relevance be to determined permitted to whether or not will be describe to objects photographed. However, or scenes there can be justification permitting no prejudicial in irrelevant and evi- appended thereby to dence be to and in that which slide with Admittedly, permitted a witness been would have relevant. to describe the and deceased’s heart the location and manner penetrated in which it affected had the bullet that and lodged However, it. within that witness not have been would permitted corpse open to describe the slit from neck to the side, abdomen and from side to exposed vivid colors fatty dangling tissue marbleized and blood or the breast that had been but all severed from the torso. Yet this is what portrayed by question, effectively been in exhibit far more fact, bizarre, than the location of the fatal In wound. shocking appendage and irrelevant rele- has obfuscated the permitting photographic things vant. rule evidence permitted thusly be witness would to describe need perverted permit photographic things to evidence of he permitted would not be to describe. genuine offering
If purpose State’s Exhibit G-l had enlighten prejudice, been rather than to. the decedent’s heart, relevant, photo- which was could much better have been graphed against background. a neutral The failure of the steps objection- taken State have reasonable to eliminate the judge irrelevant able and would have warranted the trial rejecting the exhibit.
So, hampered we are presence case of rele- vance, objected although in the to, evidence relevance slight; although was but there was a substantial imbalance between the prejudice, relevance and I think we judgment. reverse, court’s override I would vote objection however, grounded had the upon defendant’s unnecessary deliberate imbalance and unreasonable prejudicial relevance irrelevance. imbalance of would have alternative, the defendant also been entitled crop prejudicial portion irrelevant require the State only portion and to had relevant photograph have thereof into evidence. admitted *13 Opinion
Dissenting of the verdict J. I dissent and would reverse DeBruler, of court, the admission the because of evidence of into lying autopsy on table. photograph of decedent the color the subject the opinion the majority has described matter of The photograph relevant, not material nor photograph. The is or disprove any prove in issue. to or material fact does tend 903, State, (1958) N.E.2d Kiefer cases therein. cited open chest has no decedent’s laid remote relevance
any
in a
case. The heart held
issue
this
hand is not instruc-
photograph
jury.
alone,
tive to the
clear
While
of the heart
point
entry
bullet,
of
focused on
of
would have some
death,
of
photograph,
cause
this
unexplained,
relevance to
dis-
it includes much
tracts
so
the viewer because
is
irrelevant
point
entry clearly.
possible
not show
does
It is
anything
determine
about
circumstances
or
cause
body
death,
the victim’s
the condition
the wounds of the
photograph.
hand,
On
from this
the other
victim
such a
unquestionably
photograph
anyone
shocks
distorted
looks
who
Although
jury may intellectually
at it.
know that
nothing
with the
the body
do
wounds to
had
made
emphasizes
photograph
scalpel,
the horror
the death
Seeing
pieces
victim
tends
victim.
to make it
impossible
first,
that she could have shot
appel-
before
seem
though wounded,
very
much alive.
who,
lant
question
case,
where
self-defense
close
was a
appellant,
at
decedent fired shots
one, since the
the error
photograph,
admitting
showing
irrelevant
in a
victim
than
physical
far worse
the condition
condition
caused
very-
bullet,
not be harmless error.
effect
could
weighed against
prejudicial photograph
jury
on a
must be
relevancy,
its
and where
minimal
relevance is
prejudice
particular theory
great,
admit
defense is
photograph
error.
reversible
Reported at
Note. —