Hall v. State

• Decision Date: 14 June 1980
• Docket Number: No. 779S185,779S185
• Citation: 273 Ind. 507,405 N.E.2d 530
• Parties: Merle Lee HALL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 530

405 N.E.2d 530

273 Ind. 507

Merle Lee HALL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 779S185.

Supreme Court of Indiana.

June 14, 1980.

Rehearing Denied Aug. 25, 1980.

Michael E. Hunt, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Merle Lee Hall, was convicted by a jury of involuntary manslaughter, Ind.Code § 35-42-1-4 (Burns 1979 Repl.) and being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.). He was sentenced to eight and thirty years respectively and now appeals raising the following issues:

1. Whether the trial court erred in denying defendant's motion for change of venue from the county;

2. Whether the trial court erred in admitting into evidence certain exhibits which were color slide photographs showing the body of the deceased;

3. Whether the trial court erred in refusing to give certain of defendant's proposed final instructions and in giving the court's own final instruction No. 9 over defendant's objection;

4. Whether the verdict of the jury was supported by sufficient evidence;

5. Whether the trial court erred in denying defendant's motion to dismiss Count II of the amended information, the habitual criminal charge, and in denying defendant's request to strike the allegation of a third felony conviction from this count; and

6. Whether the trial court erred in sentencing the defendant with an allegedly incomplete presentence investigation report.

A summary of the facts from the record most favorable to the state reveals that defendant had been living with the victim Joanne Carline for about four years. (Joanne used the name Joanne Hall although she was not legally married to defendant.) The couple lived at times in a trailer park in Bloomington, Indiana, and at other times in an apartment. In June, 1978, defendant returned to Bloomington after an extended absence in prison. Joanne had been working as a waitress at the Holiday Inn during his absence. Shortly after his return, her co-workers testified that her behavior changed; she started missing work and then appearing at work with bruises all over her body; and that she appeared one time with a large knot on her forehead. Neighbors testified about observing defendant's physical and verbal assaults upon Joanne during this period. Around the middle of July, Joanne was admitted to a Bloomington hospital emergency room with multiple bruises and injuries to her body. She stated at that time that she had been attacked and beaten while walking through a park.

On the night of July 31, 1978, defendant and Joanne were camping at Bean Bloosom Lake with some friends. During the night, the friends testified they heard loud banging noises and Joanne screaming and crying. The next morning, defendant was seen slapping Joanne and she was crying. A few minutes later, Joanne gave a long scream and was seen falling down a long, hilly path. She was taken to the hospital unconscious and died late on August 3, 1978.

When defendant learned of her death, he left town with a girlfriend and was later apprehended in the state of Washington. The evidence indicated that Joanne's death was the result of multiple blunt-force injuries to the head and body resulting in subdural hematoma with acute hemorrhage superimposed upon a chronic subdural hematoma. There was testimony that death as a result of a fall was unlikely, given the nature and location of her bruises and the injury to her head.

I.

Defendant first alleges that the trial court erred in denying his motion for change of venue from the county based upon two arguments. He first claims that he was statutorily entitled to a change of venue as a matter of right because his case was a case where the punishment might have been death. Ind.R.Crim.P. 12. While it is true he was charged with murder, Ind.Code § 35-50-2-3 (Burns 1979 Repl.), the penalty of death only applies to that crime when certain aggravating circumstances are alleged and proved. None of these aggravating circumstances was alleged or shown in defendant's case so the death penalty was not applicable to him. He was not erroneously denied a mandatory change of venue.

Defendant also claims that the trial court erred in denying the motion for change of venue based upon the prejudicial effect of pretrial publicity in local newspapers. A trial court's denial of a motion for change of venue under these circumstances will be reversed only for an abuse of discretion. Williams v. State, (1979) Ind., 386 N.E.2d 670. However, defendant has not presented this Court with a sufficient record to permit review of the publicity. He has not included in the record any of the newspaper articles, or copies of them, alleged to have prejudiced the jury. Since it is the duty of defendant to make a proper record, this failure bars this Court's consideration of them. Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323; Pulliam v. State, (1976) 264 Ind. 381, 345 N.E.2d 229. Defendant claims that these exhibits are too bulky to be incorporated in the transcript and that he has properly named and identified each of them following their exhibit number as is required by Ind.R.App.P. 7.2(A)(3)(b). However, this rule specifically excludes "papers, maps, pictures and like materials." Therefore, defendant was not in compliance with our appellate rules and has waived any further consideration of this issue. An error alleged but not disclosed by the record is not a proper subject for review. Mendez v. State, supra.

II.

Defendant next contends that it was reversible error to allow into evidence certain photographic slides showing the body of the deceased. He argues that since the exhibits were photographic slides rather than prints and since courtroom lights had to be dimmed and large pictures projected, this prejudicially focused the attention of the jury on the nude body of the victim in an inflammatory manner. However, defendant made no objection to this procedure during the trial and so has waived this ground for appeal. Beasley v. State, (1977) 267 Ind. 396, 370 N.E.2d 360. Furthermore, defendant has not included any of the slides, or prints of them, in the record. As discussed under Issue I above, it is the duty of defendant to present a proper record and this failure also bars any consideration of this issue.

III.

Defendant next contends that the trial court erroneously refused his proposed instructions 1, 2, 3, 4, 5, and 9. We first note that it is well settled that the refusal of a trial court to give a tendered instruction is not reversible error if the instruction incorrectly states the law or if the substance of the instruction was adequately covered by other instructions given by the court. Toliver v. State, (1978) 267 Ind. 575, 372 N.E.2d 452; Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352.

Defendant's proposed instruction No. 1 concerned the principle that evidence of other crimes can only be used to judge defendant's credibility as a witness and not as a fact in determining whether or not defendant committed the instant crime with which he was charged. This principle was fully and adequately covered in the court's final instruction No. 7:

"Evidence has been introduced in this case that the defendant has been heretofore convicted of a crime. You have the right to consider such evidence for whatever bearing it has on his credibility as a witness, but you may not consider such evidence for any other purpose, nor can you draw from it the inference that, because he has been previously convicted of a crime, it is therefore more likely that he is guilty of the crime with which he is now charged."

Defendant's proposed instruction No. 2 was also refused by the court. That instruction first covered the state's burden of proving guilt beyond a reasonable doubt and this burden was fully and adequately covered by the court's final instruction No. 3. Defendant's instruction No. 2 also contained the following language:

"It is not sufficient if the State has enveloped the death of JoAnn Hall in mystery. Before you can find the Defendant guilty, the State is required to explain all mystery and to remove all reasonable doubt."

This was properly refused since cloaking the crime in terms of a "mystery" was an incorrect statement of the law. The instruction also contained a statement about the use of circumstantial evidence to prove guilt but this was adequately covered by the court's instruction No. 12. There was no error in the refusal of this instruction.

Defendant's proposed instruction No. 3 commented upon one witness's testimony and the manner in which the jury was to evaluate this testimony. There was no error in refusing this instruction since it is not permissible for the court to single out a particular witness and comment upon his testimony. Dipert v. State, (1972) 259 Ind. 260, 286 N.E.2d 405.

Defendant's proposed instruction No. 4 covered the issue of the intent which must be shown in order to find a defendant guilty. This was more fully and accurately covered by the court's instructions No. 12 and No. 3 which covered the mens rea required for each of the relevant crimes. Defendant's proposed instruction No. 5 covered jury deliberations and this was adequately covered by the court's instruction No. 2.

Defendant's proposed instruction No. 9 stated the rule that circumstantial evidence must exclude every reasonable hypothesis of the innocence of the accused:

"Where reliance is placed on circumstantial evidence, that evidence must be so conclusive in character that it excludes every reasonable hypothesis of the innocence of the accused."

It is true that this is a correct statement of the law, Spears v. State, (1980) Ind., 401 N.E.2d 331. However, the court's instruction correctly covered this point although it was stated in slightly different words:

"Circumstantial evidence alone...