The defendant (appellant) was convicted in a jury trial of Attempted Murder, a Class A Felony, Ind.Code §§ 35-41-5-1, 35-42-1-1 (Burns 1979), and Kidnapping, also a Class A Felony, Ind.Code § 35-42-3-2 (Burns 1979). Upon each verdict, the defendant was sentenced to a term of fifty (50) years imprisonment, the terms to run concurrently. This direct appeal presents the following issues:
*79 (1) Whether the trial court erred in denying the defendant’s motion for leave to reserve making opening statement, until the close of the State’s case.
(2) Whether the victim’s in-court identification of the defendant was improper.
(3) Whether the trial court erred in admitting certain exhibits into evidence.
(4) Whether the trial court erred in denying the defendant’s motion for a mistrial, predicated upon a witness’ volunteered statement of his reason for telephoning the police.
(5) Whether the verdicts were supported by sufficient evidence.
(6) Whether the trial court erred in placing thе verdict forms in separate envelopes.
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ISSUE I
At the inception of the trial, the defendant moved for leave to reserve making his opening stаtement until after the State had presented its case. The trial court denied the motion, and error is assigned to that ruling.
In
Buise v. State,
(1972)
ISSUE II
The defendant next contends that the in-court identification of him by the victim of the instant crimes was improper. The victim had been unable to identify the defendant from a pre-trial photographic display, but at trial, he clearly and unequivocally identified him as his assailant. The defendant submits that, under the cirсumstances, the in-court identification was unduly suggestive and, therefore, violative of due process. We disagree.
We have in the past recоgnized a certain suggestiveness inherent in all in-court identifications.
See Emerson v. State,
(1970)
The defendant’s citation of
Gaddis v. State,
(1969)
ISSUE III
The defеndant contends that the trial court erred in admitting three (3) items into evidence: a photograph, a gun and the bullets taken from that gun. With reference to the photograph, the defendant asserted at trial that it was irrelevant because it depicted the scene of the attempted murder as that scene appeared some two (2) weeks after the commission of the crime, rather than at the moment of the occurrence. A further basis for the objection was that the photograph had been taken during the daylight hours, whereas the *80 crime occurred at night. We hold that therе was no error in admitting the photograph into evidence.
The photograph was offered and admitted for a limited purpose: to allow the witnesses and the jury to orient themselves to the physical characteristics of the scene of the crime. It was neither offered, nor admitted аs a representation of the scene as it existed at the time the crime occurred. As such, the photograph was relevant and therefоre, admissible. Furthermore, the defendant can demonstrate no prejudice flowing from the admission of the photograph, in light of the admission of other photographs depicting the scene of the crime as it existed at night.
With reference to the gun and the bullets, the defendant again asserts that thе items were irrelevant, because they were insufficiently connected to him and because the State had not established that the gun was the one fired at the victim. The trial court properly admitted these items into evidence.
An item is relevant if it has a logical tendency to prove a mаterial fact.
Minton v. State,
(1978) Ind.,
ISSUE IV
The defendant next contends that the trial court erred in denying his motion for a mistrial. The motion was made during the testimony of Everett Orebaugh, the owner оf the barn within which the defendant and his accomplice had been captured. On direct examination, Orebaugh recited that he had come uрon the two (2) men-had heard voices emanating from the barn and “I assumed it was the two men that had been looked for.” At this point, the defendant objeсted upon the ground that the witness was stating an assumption. The objection was sustained and the witness was admonished not to state assumptions. The witness was then asked to relate what he had done after hearing the voices. Orebaugh responded that “If I hadn’t assumed it was those people, I wouldn’t havе called the police.” The defendant immediately moved for a mistrial, which was denied.
The statement of the witness, although reflecting a conсlusion held by the witness, was merely an explanation of why he called the police. It had no clear potential to prejudice the defеndant’s interests and certainly did not place him in a position of
grave peril,
requiring the declaration of a mistrial under the guidelines of
White v. State,
(1971)
ISSUE V
The defendant’s contentiоn that the evidence was insufficient to sustain the verdict is predicated upon the hypothesis that the in court identification of him by the victim was improper. Having determined that the identification was permissible, however, we need not further consider this issue.
ISSUE VI
The defendant’s final contention is that the trial court erred in placing the various verdict forms in two (2) envelopes. One (1) envelope contained all possible verdicts under Count I, Attempted Murder, while the other contained all possible verdicts under Count II, Kidnapping. He argues that, by placing the putative verdicts in two (2) envelopes, one (1) count was unduly emphasized to the exclusion of the other. We can not grasp how the trial court’s action unduly emphasized either count, or hоw the defendant was prejudiced. In fact, the method employed appears to be a salutary means of avoiding confusion.
We find no error. The judgment is affirmed.