Bacher v. State, 48S00-9503-CR-285
| Decision Date | 09 October 1997 |
| Docket Number | No. 48S00-9503-CR-285,48S00-9503-CR-285 |
| Citation | 686 N.E.2d 791 |
| Parties | John R. BACHER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
John M. Eisele, Anderson, for Appellant.
Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee.
On May 26, 1994, defendant John Bacher was charged with one count of Murder pursuant to Ind. Code § 35-42-1-1. On October 5, 1994, the jury found the defendant guilty of Murder. Sentencing defendant to a total executed term of sixty years, the trial judge imposed the presumptive forty year sentence plus a twenty year enhancement for aggravating circumstances. Defendant appeals his conviction and sentence. We affirm the conviction and remand the case to the trial court for a new sentencing hearing.
On May 13, 1994, John R. Bacher (defendant) and Janet Odle (victim) were married. On May 20, 1994, victim filed a petition to annul her marriage and defendant signed an acknowledgment of service of petition. Early on the morning of May 21, 1994, defendant shot and killed victim. In a statement to the Anderson City Police, defendant stated that he and victim were arguing in the bedroom. According to defendant, victim grabbed a gun from the headboard of the bed and defendant struggled with victim for control of the weapon. Defendant asserted that he lost
his balance and the gun discharged. Evidence at trial would show, inter alia, that one bullet had been fired and that defendant had called the police immediately after the shooting. Defendant was charged with murder. The jury found defendant guilty and the trial court judge entered judgment of conviction.
Defendant presents the following issues on review: (1) whether it was improper for the trial court to admit testimony and evidence in three respects; (2) whether it was improper for the trial court to admit evidence in the form of a paramedic's opinion as to the time of death; (3) whether it was improper for the trial court to fail to allow defendant's expert witness to testify regarding the characteristics of one afflicted by a traumatic or shocking event after the state placed defendant's demeanor at issue; and (4) whether the trial court abused its discretion by sentencing defendant to the maximum term of sixty years.
Defendant contends that the trial court improperly admitted testimony or evidence in three respects: (a) evidence involving an incident between defendant and an ex-boyfriend of the victim; (b) testimony of two witnesses to the effect that they feared for the safety of the victim before her death; and (c) evidence contained in a police report involving a handgun by which the victim was killed. The decision to admit evidence is within the sound discretion of the trial court and is afforded a great deal of deference on appeal. Tynes v. State, 650 N.E.2d 685, 687 (Ind.1995). Here we find ourselves particularly predisposed to defer to that discretion because of the obvious care with which the trial court considered defendant's objections to the admission of this and related testimony and evidence. Nevertheless, because the testimony and evidence was important and vigorously contested at trial, we give it careful review.
A
Defendant asserts that the trial court committed reversible error by admitting the testimony of Anderson police officer Dennis Adams that on May 19, 1994, he took a report of a missing handgun belonging to the victim. Defendant argues that such testimony was inadmissible hearsay.
The record indicates that on May 19, the victim reported to Officer Adams that her handgun was missing and that she thought defendant had taken it. The next day, the victim borrowed another gun from a co-worker, Albert Shuck. On May 21, the victim was killed by the gun she had reported missing two days earlier.
From the outset of the trial, defense counsel argued tenaciously and effectively against the admission of the report of the missing handgun. Arguing that the report was being offered by the state to prove that the victim's gun was missing and that defendant had taken it, defense counsel contended the report was inadmissible hearsay. Ind.Evidence Rule 801(c). 1 defense counsel argued. (R. at 280.)
Jury selection took the entire first day of the trial. At the outset of the second day, the trial court agreed with defense counsel and granted defendant's motion in limine restricting the state from offering evidence of the report of the missing gun. But that was not the end of the matter. Later that day, with the victim's daughter on the stand, the state sought relief from the motion in limine to ask the witness about the missing gun. The trial court denied the request on grounds that the testimony would be inadmissible hearsay. Still later the same day, the state attempted to call Officer Adams. Defense counsel and the prosecutor argued the admissibility of the report at length and responded to the court's questions concerning the applicability of Craig v. State, 630 N.E.2d 207 (Ind.1994). 2 Again the trial court The next witness was Mr. Shuck, the co-worker who had loaned the victim his handgun the day before her death. The following colloquy occurred (prosecutor questioning):
sustained the hearsay objection and the officer was not called.
...
(R. at 422.) The judge excused the jury and heard lengthy arguments on the motion for mistrial. While the judge denied the motion, he did admonish the jury to disregard the prosecutor's "last remark and/or question." However, Mr. Shuck was permitted to testify that he loaned the victim his gun.
At the start of the fourth day of the trial, the prosecutor began by asking for relief from the motion in limine. He advanced the following arguments. First, he argued that the report should be admissible under the business records exception to the hearsay rule. Second, he argued that the report was not being offered to prove the truth of the matter being asserted but instead to explain the victim's state of mind in borrowing the gun from Mr. Shuck. 3 The prosecutor advanced case law in support of both theories. Defense counsel easily distinguished the business records cases cited by the prosecutor. 4 She then turned to the argument and, after addressing the cases advanced by the state, concluded that the state wanted the report admitted "for one thing and one thing only and that is to prove the fact that [the victim] was not in possession of that gun on the evening of her death." (R. at 618.) After some discussion of whether the defendant's assertion that the shooting was an accident put the victim's state of mind at issue, the trial court took the issue under advisement.
The trial court began the fifth day of trial by announcing that it would admit Officer Adams's testimony that the victim's gun was missing. Over continued vigorous objection from defense counsel, the court indicated that the evidence was admissible "[t]o show the reason ... [the victim's] state of mind as to why she borrowed the gun from Mr. Shuck." (R. at 731) (ellipsis in original). However, Officer Adams was only permitted to testify that he had taken a report that the victim's handgun was missing. He did not testify that the victim had made the report or that she suspected that defendant had the gun. The entire extent of the testimony was as follows (prosecutor questioning):
Q: On ... Thursday, May the 19th, 1994, did you have occasion to take a report A: Yes, sir.
of a missing handgun belong to Janet E. Odle, specifically a thirty-eight caliber Colt Cobra, serial or model number 80 ... 80489R?
As noted above, we accord the trial court broad discretion in determining the admissibility of evidence and will not reverse its determination absent an abuse of that discretion. And even where we find error in the admission of evidence, we disregard it as harmless error unless it affects the substantial rights of a party. Ind.Trial Rule 61; Hardin v. State, 611 N.E.2d 123, 131 (Ind.1993). An error will be found harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of a party. Fleener v. State, 656 N.E.2d 1140, 1142 (Ind.1995).
Here defense counsel was entirely successful in keeping from the jury the potentially most damaging aspect of the missing gun report, to wit, the victim's belief that defendant was responsible for the gun...
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