Ziebell v. State

• Decision Date: 27 May 2003
• Docket Number: No. 82A01-0206-CR-229.,82A01-0206-CR-229.
• Citation: 788 N.E.2d 902
• Parties: Rumero W. ZIEBELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

788 N.E.2d 902

Rumero W. ZIEBELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-0206-CR-229.

Court of Appeals of Indiana.

May 27, 2003.

John D. Clouse, Ivan A. Arnaez, Evansville, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Rumero W. Ziebell appeals his convictions for murder,¹ conspiracy to commit murder as a class A felony,² confinement as a class B felony,³ battery as a class C felony,⁴ and his status as an habitual offender.⁵ Ziebell raises eight issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion by admitting photographs of the crime scene and injuries to the victim;

II. Whether the trial court abused its discretion by admitting evidence of Ziebell's prior drug dealing;

III. Whether the trial court abused its discretion by denying Ziebell's motion for a mistrial regarding evidence of his prior drug dealing;

IV. Whether the habitual offender statute, Ind.Code § 35-50-2-8, is unconstitutional because it punishes Ziebell for his status and because it violates the prohibition against double jeopardy;

V. Whether the trial court abused its discretion by requiring Ziebell's presence during the habitual offender phase of the trial;

VI. Whether the trial court abused its discretion by permitting Ziebell's prior counsel to testify regarding Ziebell's identity during the habitual offender phase of the trial; and

VII. Whether the trial court committed fundamental error by commenting upon Ziebell's failure to testify.

We affirm.

The relevant facts follow. On March 19, 2001, the State charged Ziebell with three counts of dealing in methamphetamine and one count of dealing in marijuana. Ziebell thought that a "snitch" named Mackey was involved in the charges. Transcript at 116. In fact, Mackey was not the confidential informant. However, in late May of 2001, Ziebell told Al Gross and Dean Everett that he wanted to kill Mackey and offered Gross or Everett $1500 to do so. Everett agreed to kill Mackey.

On May 27, 2001, Everett and Ronald Mackey were driving in Mackey's van. The evidence at trial demonstrated that Ziebell, Everett, and Gross actually intended to kill Dallas Mackey, Ronald's brother, and mistook Ronald for Dallas. Ziebell and Gross followed the van. After stopping, Mackey was removed from the van and severely beaten. Mackey was then put back into the van, and Everett drove him to Kentucky. Everett then shot Mackey in the head with Ziebell's shotgun. Ziebell and Gross drove Everett back to Indiana. Ziebell admitted that he participated in Mackey's murder.

The State charged Ziebell with murder, conspiracy to commit murder, a class A felony, confinement, a class B felony, battery, a class C felony, and being an habitual offender. During the jury trial, the trial court admitted photographs of the crime scene and Mackey's injuries over Ziebell's objections. The trial court also admitted evidence of Ziebell's prior drug dealing over his objections and refused to grant a mistrial based upon the admission of the prior drug dealing evidence. However, the trial court admonished the jury to consider the evidence of Ziebell's drug dealing only as to motive. The jury found Ziebell guilty of murder, conspiracy to commit murder, confinement, and battery.

During the habitual offender phase of the trial, Ziebell argued that the habitual offender statute was unconstitutional because it punishes a defendant for his status and because it violates the prohibition against double jeopardy. The trial court overruled Ziebell's objections. Additionally, at the start of the habitual offender proceedings, Ziebell informed his counsel that he did not wish to be present during the proceedings. The trial court denied his request because his presence was necessary for identification purposes. The State then called Ziebell's former counsel as a witness to testify as to Ziebell's identity. Ziebell objected based upon the attorney-client privilege. However, the trial court overruled his objection. Furthermore, while discussing Ziebell's objections to his former attorney testifying during the habitual offender trial, the trial court stated "since the client is not testifying. Are you objecting to this witness['s] testimony on the grounds of your client's Fifth Amendment rights?" Transcript at 350. Ziebell's counsel responded that the trial court was correct, and the trial court overruled his objection. The jury found Ziebell guilty of being an habitual offender.

The trial court sentenced Ziebell to: (1) ninety-five years in the Indiana Department of Correction for the murder conviction enhanced by Ziebell's status as an habitual offender; (2) fifty years for the conspiracy to commit murder conviction to run concurrent with the sentence for the murder conviction; (3) twenty years for the confinement conviction to run consecutive to the sentence for the murder conviction; and (4) eight years for the battery conviction to run consecutive to the sentence for the confinement conviction. Thus, Ziebell received an aggregate sentence of 123 years in the Indiana Department of Correction.

I.

The first issue is whether the trial court abused its discretion by admitting photographs of the crime scene and injuries to the victim. Because the admission and exclusion of evidence falls within the sound discretion of the trial court, we review the admission of photographic evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith v. State, 754 N.E.2d 502, 504 (Ind.2001).

Ziebell argues that the trial court abused its discretion by admitting the following photographs into evidence over his objection: (1) Exhibit 5, a photograph of the inside of the van; (2) Exhibit 6, a photograph of the shotgun lying inside of the van; (3) Exhibit 7, a photograph of Mackey's body inside the van, (4) Exhibit 9, a photograph of Mackey's left hand and head; (5) Exhibit 10, a photograph of Mackey's jacket; (6) Exhibit 11, a photograph of damage to Mackey's jacket; (7) Exhibit 12, a photograph of damage to Mackey's shirt; (8) Exhibit 14, a photograph of injuries to Mackey's head; (9) Exhibit 15, a photograph of injuries to Mackey's head and neck; (10) Exhibit 16, a photograph of an injury to Mackey's arm; (11) Exhibit 17, a photograph of injuries to Mackey's back; (12) Exhibit 18, a photograph of injuries to Mackey's right hand; and (13) Exhibit 19, a photograph of injuries to Mackey's head. Ziebell argues that the probative value of the photographs is outweighed by the danger of unfair prejudice. Ziebell does not argue that the photographs show the body in an altered condition. See, e.g., Corbett v. State, 764 N.E.2d 622, 627 (Ind.2002) ("Autopsy photographs are generally inadmissible if they show the body in an altered condition.").

Our supreme court recently noted the following with respect to the admission of such photographs:

Relevant evidence, including photographs, may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice. "Even gory and revolting photographs may be admissible as long as they are relevant to some material issue or show scenes that a witness could describe orally." Photographs, even those gruesome in nature, are admissible if they act as interpretative aids for the jury and have strong probative value.

Wilson, 765 N.E.2d at 1272 (internal citations omitted). In Wilson, our supreme court held that while the photographs were "unpleasant," they "were relevant to material issues and to the testimony of the pathologist." Id. Thus, our supreme court "decline[d] to find abuse of discretion by the trial court in admitting them over the defendant's objections." Id. at 1272-1273. Likewise, here, while some of the photographs are unpleasant, the photographs depict the injuries to Mackey's body, damage to Mackey's clothing, and the condition of the crime scene where Mackey's body was discovered. The photographs were relevant to material issues in the case and to the testimonies of the pathologist and the officer who found Mackey's body. The probative value of the photographs is not substantially outweighed by the danger of unfair prejudice. Consequently, the trial court did not abuse its discretion by admitting the photographs over Ziebell's objection. See, e.g., id.

II.

The next issue is whether the trial court abused its discretion by admitting evidence of Ziebell's prior drug dealing activities. The trial court permitted several witnesses to testify regarding Ziebell's prior drug dealing. Ziebell argues the trial court abused its discretion by admitting this evidence over his objection because the evidence was inadmissible under Ind. Evidence Rule 404(b). The trial court has discretionary power on the admission of evidence, including the admission of evidence pursuant to Ind. Evidence Rule 404(b). Wilson, 765 N.E.2d at 1270. We review the trial court's decision only for an abuse of that discretion. Id. An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith, 754 N.E.2d at 504.

Ind. Evidence Rule 404(b) provides, in part, that:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...."

The rule is "designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities." Hicks v. State, 690 N.E.2d 215, 218-219 (Ind.1997). In determining whether to admit evidence under ...