King v. State

• Decision Date: 20 December 1988
• Docket Number: No. 71S00-8705-CR-484,71S00-8705-CR-484
• Citation: 531 N.E.2d 1154
• Parties: Timothy Earl KING, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1154

531 N.E.2d 1154

Timothy Earl KING, Appellant, v. STATE of Indiana, Appellee.

No. 71S00-8705-CR-484.

Supreme Court of Indiana.

Dec. 20, 1988.

Anthony V. Luber, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

On the evening of April 20, 1986, Betty Rink was found critically injured on the floor of her South Bend apartment. She died later in the hospital of numerous wounds to her head and upper body, caused by a hammer found at the scene. Appellant was seen leaving Rink's home on a bicycle with the left pedal missing shortly before Rink was discovered.

A tinted eyeglass lens, blood splattered on one side, was found in the room where Rink was attacked and the tint and prescription of the lens matched that of glasses made recently for appellant. A bicycle with a pedal missing was identified as one having been loaned to appellant and a gray hair from a caucasian was found on the handle grip of that bicycle.

Appellant was convicted of the murder of Rink and sentenced to fifty years. That sentence was additionally enhanced by thirty years due to a finding appellant was an habitual offender. There are twenty-two issues raised for review.

I.

Betty Rink was murdered on April 20, 1986. The State filed an information charging appellant with that murder on April 24, 1986. Trial was scheduled for July 22, 1986. On July 9, 1986 the State filed a motion for continuance, alleging it did not yet have test results back from the F.B.I. and had been informed that the results would not be available in time for the July 22, 1986 trial date. The court granted the continuance and rescheduled the trial for September 16, 1986.

The granting of a non-statutory continuance lies within the discretion of the trial judge and his ruling is reversible only upon an abuse of that discretion. Glenn v. State (1986), Ind., 493 N.E.2d 463. Hoy v. State (1983), Ind., 448 N.E.2d 31. Appellant points to a black eye and psychological stress he suffered as a result of the delayed trial. The potential of a delay to cause such stress was not presented to the trial judge at the time he made his decision and therefore these items are not relevant to whether or not he erred in granting the continuance. Appellant also states that the court did not fairly and impartially consider the request for continuance. In support he alleges that the State offered to submit its April 24, 1986 letter to the F.B.I. on the items submitted for testing, but the judge said it was unnecessary, and the fact the judge refused to condition the granting of the continuance upon the State's disclosing the ultimate test results. Neither of these allegations are of such magnitude as to demonstrate either error or abuse of discretion on the part of the trial judge.

II.

State's witness Joseph Herrera, an F.B.I. forensic serologist, was permitted to identify blood splatters depicted in photographs of the crime scene over appellant's objection that such identification was beyond the scope of Herrera's expertise. He asserts that the jury was as qualified as Herrara to make that determination and that it was error to permit Herrera's "lay" opinion. In qualifying Herrera as an expert, the State elicited that he examined 3000-4000 items of physical evidence a year and had expertise in differentiating between blood contacting surfaces by drops, splatters or smears. He testified the blood on an eyeglass lens found at the crime scene was smeared onto the glass. He described the differences between smears, droplets and splatters. The witness had extensive experience working with blood and was extremely knowledgeable concerning blood patterns and differentiating between them. It can be assumed that the average juror does not come into contact with 3000-4000 bloodied items a year and would not have the same experience as Herrera in distinguishing the method by which the item became bloodied. Herrera's expert qualifications extended to include his vast experience with blood covered objects and it was not error to permit his opinion that the photographs depicted blood in a splatter pattern on the walls.

III.

State's exhibits 7, 8, 15 and 16 were photographs of the body of the victim and the bloody walls of the apartment. Appellant urges it was error to admit these photographs because their relevance was minimal and their inflammatory nature extreme.

"To be admitted, it must first be established that the photographs are a true and accurate representation of the things they are intended to portray. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photograph depicts. Murphy v. State (1977), Ind. , 369 N.E.2d 411. Although the photographs may depict gory, revolting or inflammatory details of the crime when presented to the jury, this is not a sufficient basis for excluding such evidence Sotelo v. State (1976), 264 Ind. 298, 342 N.E.2d 844; Meredith v. State (1966), 247 Ind. 233, 214 N.E.2d 385."

Wilson v. State (1978), 268 Ind. 112, 374 N.E.2d 45.

The photographs of the body and the walls were relevant to depict what occurred during the crime. The position of the body and the splattering of the walls were used to support the State's theory that a struggle occurred prior to death. Further, the son who discovered the body and the investigating personnel arriving at the scene testified and described both the appearance of the body and the walls. The pictures were clearly relevant and admissible despite the shocking nature of their contents.

IV.

State's exhibits 34, 35, 36, 37 and 38 were photographs of the wounds on Betty Rink. Dr. Kristen Jacobs was a pathologist who performed an autopsy on Betty Rink. Dr. Jacobs referred to the photographs when testifying as to the cause of death, which wounds she believed to have resulted from defensive actions, and the cause of the injuries. The autopsy photographs focused on close ups of the wounds and were beneficial to the jury in understanding the testimony of the pathologist. Their admission was not error.

V.

On the handlebars of the bicycle appellant had been riding, a hair was discovered. State's witness Podolak was qualified as a hair and fiber expert. He testified that the hair was a gray head hair from a caucasion human being, that "could have" come from the victim, who was caucasion and had gray and brown head hair. He also testified that because the hair was gray it lacked characteristics from which comparisons can be made to determine its source.

Appellant objected to the admission of Podolak's testimony asserting it was nothing more than a "pseudo-scientific red flag being waved in front of the jury" and that the effect was to allow speculation to be introduced to the jury under the guise of expert testimony. It was clearly brought out to the jury that Podolak could do no more than observe the hair was caucasion, gray, not dissimilar to the victim's, and "could have" come from her. He did not rule out the possibility it could have come from any other caucasion person who had some gray hair. Apparently, the fact the hair was gray precluded a more definitive analysis. The hair was merely circumstantial evidence linking appellant to the crime. Podolak did no more than identify the type of hair. The inability to positively tie the hair to the victim goes to the weight of the evidence and not its admissibility. Bivins v. State (1982), Ind., 433 N.E.2d 387.

VI.

Dr. Jacobs was permitted to testify concerning her opinion as to the cause of bruising on the victim. She testified that some of the bruises were consistent with ones inflicted by squeezing from fingertips, and that others were shapeless, less clearly defined, and that she was uncertain as to the cause but they could have come from a fist or blunt instrument. Appellant objected to this testimony based upon Jacobs' uncertainty as to the cause of the bruises and urges it was error to permit her to speculate.

Jacobs demonstrated familiarity with bruising patterns and causation and her expertise in this area was not challenged. Once again, the lack of specificity goes to the weight and not the admissibility. Her testimony reflected her opinion of the causation and the jury could give it whatever weight it chose. It was not error to permit her testimony.

VII.

Appellant filed a motion in limine asking that the State only be allowed to establish that he had been convicted of one of the infamous crimes as referred to in Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210. In doing so he was attempting to prevent the jury from learning that he had a prior rape conviction. He contends the testimony of three State's witnesses who used the word "rape" in reference to this case was extremely prejudicial when coupled with his prior rape conviction. He offers no convincing rationale why we should alter the present rule and this court will continue to permit revelation of the specific impeaching offense.

VIII.

State's exhibits 49, 50 and 51 were court documents admitted during the habitual offender phase of the trial. Appellant asserts that these documents were facially defective since the judge's certification read "I, William C. Whitman, sole and presiding Judge of the County of St. Joseph ..." and there is in fact more than one superior court judge in St. Joseph County. The certificate was a pre-printed form with the judge's name and the court typed in. The fact there is more than one superior court judge has no relevance to the authenticity of the records and appellant's argument that the records should not have been admitted is not persuasive.

IX.

Appellant tendered his preliminary Instruction # 1 which reads as follows:

"Under the law, you must presume that the defendant is innocent, and must continue to do so throughout the trial, unless the State proves every essential...