Gambill v. State
| Decision Date | 23 June 1982 |
| Docket Number | No. 981S240,981S240 |
| Citation | 436 N.E.2d 301 |
| Parties | John GAMBILL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
J. David Keckley, South Bend, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Voluntary Manslaughter, Ind.Code § 35-42-1-3 (Burns 1979) and was sentenced to a term of twenty (20) years imprisonment.
(1) Whether the trial court erred in denying Defendant's pre-trial motion to suppress identification testimony and in permitting the witness to identify him at trial.
(2) Whether the trial court erred in admitting autopsy photographs into evidence.
(3) Whether the trial court erred in denying Defendant's motion for a mis-trial following a witness' overly broad answer implying that Defendant had admitted committing other homicides.
(4) Whether the trial court erred in its sentencing of the Defendant.
On March 25, 1980, William Mull's body was found in the basement of his South Bend music store. The body had suffered multiple stab wounds to the torso and numerous slash wounds to the throat.
A witness sleeping in his apartment near the music store testified that he was awakened by a noise from the street in the early morning hours of March 25, and that he looked out of his window and saw a male enter the automobile of the deceased and drive away. This witness eventually identified the Defendant from photographic viewings. Defendant was arrested on a charge of Murder on April 16, 1980.
Defendant first contends that the trial court erred in its denial of Defendant's motion to suppress the identification testimony of witness William Hackett. He argues that the police photographic identification procedures were impermissibly suggestive and gave rise to a substantial likelihood of misidentification.
At the suppression hearing, witness William Hackett testified that he had been awakened by a noise during the early morning hours, and he looked out of his apartment window. In the street he saw the defendant, whom he did not know, entering the decedent's automobile. His period of observation was brief, but he observed defendant's face for from five to fifteen seconds. Hackett indicated that he could identify the person he saw if he were to see him again in person or from photographs. He gave a description of the defendant to the police who, in turn, told him that a murder had been committed. The police then had Hackett review approximately 100 police file photographs (mug-shots), but he was unable to identify any of them as a portrayal of the defendant. He then aided the police in developing a composite drawing of the defendant.
Subsequently, the defendant became a suspect independently of any assistance that Hackett had rendered; and five days following the murder, the police had him view an array of six photographs, two of which were of the defendant but were not of recent origin. Hackett made no identification from this array.
On the following day, Officer Kyle who had been in charge of the previously mentioned identification attempts, took another set of six photographs for Hackett to view. One photograph in this display had been utilized in the display of the previous day, and one was a photograph of the defendant. It was a more recent portrayal, however and not one that had been previously displayed to him. The remaining four were of persons other than those portrayed in the previous day's display. From this array, Hackett immediately selected the photograph of the defendant as portraying the person he had seen enter the decedent's automobile on the night of his murder.
Defendant argues that inasmuch as the police incorporated photographs of him in the third display, following Hackett's failure to make an identification of him in either the first or second display, had told him that they had some pretty good leads and had asked him if he could identify anybody and be positive about it, the procedures had been impermissibly suggestive. He further argues that the procedures gave rise to a substantial likelihood of misidentification and supports this claim with the observation that Hackett's view of him had been of brief duration; his description given to the police was general only and not entirely accurate; he had not requested an opportunity to view the defendant in person, had been unable to identify him from the previously displayed arrays and had made his selection only after officer Kyle had indicated that the photo of a suspect was in the array. He also points to Hackett's selection, from one array, of a photograph of a person other than himself as portraying characteristic's similar to his own, and argues that in their totality, such factors demonstrate Hackett's uncertainty, hence a likelihood of error, citing Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.
We do not agree with Defendant upon either his premise that the identification procedures were unnecessarily and impermissibly suggestive or his premise that Hackett's reactions were indicative of such a degree of uncertainty as to render the admission of his identification testimony a denial of due process. To the contrary, it appears that there was little, if any, suggestivity in the procedures and that, to the extent that there may have been aspects subject to question, they were unavoidable. It is inevitable that a witness may know that the police have a suspect when he is asked to view a "line up" or limited photographic array. The purpose of such identification procedures is to have such suspicions confirmed or refuted, and the procedures cannot be criticized so long as they are conducive to witness independence. We are of the opinion, also, that Hackett's responses were indicative of nothing more than caution and a recognition of the gravity of his decisions and gave no cause to suspect an impermissible risk of error.
Nine anatomical drawings of the decedent's wounds were admitted into evidence without objection. Five autopsy photographs were then admitted into evidence over objection that they were unduly inflammatory and repetitious.
The drawings depicted the location of the wounds, and the photographs evidenced the nature, extent, and number of the wounds that had been sustained by the decedent. There was a degree of both gruesomeness and repetition about the exhibits, however Defendant has failed to recognize another factor that weighs in the determination of admissibility.
* * *." Bates v. State, (1977) 267 Ind. 8, 10, 366 N.E.2d 659, 660.
Defendant has not addressed the relevance aspect of the exhibits which were utilized by a medical expert as an aid to his testimony concerning the cause of decedent's death.
The collective and individual viewpoints of the members of this Court upon the admissibility of autopsy photographs were set forth in the majority opinion, a concurring opinion and a dissenting opinion filed in Carroll v. State, (1975) 263 Ind. 696, 338 N.E.2d 264. The admission of the exhibits in issue was not error under any viewpoint therein expressed. The photographs were relevant and their admissibility was, therefore, a matter to be determined by the trial court by the balancing of consideration, and there is no basis for a claim of an abuse of discretion.
Prior to testifying at trial, State's witness Kenneth Springer, a friend of the defendant, was admonished to confine his testimony to matters relevant to the cause at trial. During his direct examination, the following colloquy occurred:
Defense counsel then moved for a mistrial upon the grounds that the...
To continue reading
Request your trial
-
Averhart v. State
...by the procedure. There is, therefore, no error in this issue. Ramos v. State, (1982) Ind., 433 N.E.2d 757 reh. denied; Gambill v. State, (1982) Ind., 436 N.E.2d 301; Hicks v. State, (1979) 272 Ind. 350, 397 N.E.2d Averhart also claims cross-examination by co-defendants of Mavis Reeves and ......
-
Boyd v. State
...the defendant must show that he was placed in a position of grave peril to which he should not have been subjected. Gambill v. State (1982), Ind., 436 N.E.2d 301, 304; Ramos, Ind., 433 N.E.2d at When the jury is admonished by the trial judge to disregard what has occurred, or if other reaso......
-
Willoughby v. State, 49S00-8705-CR-461
...the trial judge erroneously enhanced his sentences as punishment for the death of Terry Darlington. He argues that under Gambill v. State (1982), Ind., 436 N.E.2d 301, a trial judge may not enhance a sentence to compensate for a crime for which it perceives that the defendant eluded lawful ......
-
Romack v. State
...of a mistrial is an extreme action and is warranted only when no other action can be expected to remedy the situation." Gambill v. State, (1982) Ind., 436 N.E.2d 301, 304. Romack cites Stevens v. State, (1976) 265 Ind. 396, 354 N.E.2d 727, rehearing 265 Ind. 410, 357 N.E.2d 245, in arguing ......