Bledsoe v. State

• Decision Date: 09 October 1980
• Docket Number: No. 1178S252,1178S252
• Citation: 274 Ind. 286,410 N.E.2d 1310
• Parties: Falandra BLEDSOE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1310

410 N.E.2d 1310

274 Ind. 286

Falandra BLEDSOE, Appellant, v. STATE of Indiana, Appellee.

No. 1178S252.

Supreme Court of Indiana.

Oct. 9, 1980.

Walter E. Bravard, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Falandra Bledsoe was charged in Marion Criminal Court with drawing a deadly weapon on a police officer (Count I), Ind. Code § 35-21-4-2 (Burns 1975); and two counts of committing a felony while armed, to-wit: rape (Counts II and III), § 35-12-1-1. Appellant was tried to a jury and convicted of one of the armed felony charges (Count II). The jury acquitted him on Counts I and III. This appeal followed. Bledsoe presents four issues for our consideration, concerning: (1) whether the trial court erroneously admitted certain photographs into evidence; (2) whether the trial court denied appellant due process and the presumption of innocence by allegedly compelling him to stand trial in jail clothing; (3) whether the trial court erred in refusing appellant's tendered instructions on the presumption of innocence; and (4) whether the evidence is sufficient to sustain the conviction.

I.

Appellant claims the trial court erred when it admitted into evidence three photographs. State's Exhibit Two is a photograph of the front of the victim's mother's home. State's Exhibit Three portrays an empty bed with disheveled bed linens laying on it. This bed was identified as that of one of the alleged victims. Appellant makes no discernible argument on appeal as to why these photographs should not have been admitted. Therefore, he has waived any alleged error pertaining to them. Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1369; Ashbaugh v. State, (1980) Ind., 400 N.E.2d 767, 773; Guardiola v. State, (1978) 268 Ind. 404, 406, 375 N.E.2d 1105, 1107. Appellant contends that State's Exhibit Four is gruesome and was deceptive and irrelevant to any of the issues of this case. This exhibit is a photograph of the other victim's bed, and reveals two or three large dark red stains or marks on the sheet and mattress. Testimony established that the photograph accurately depicted the bed of Y.W., one of the victims, as it appeared after the crime had been committed. No testimony was adduced, however, concerning the cause of the red spot on the sheet. He contends the jury might have concluded that the spot was actually the victim's blood, when, in fact, subsequent medical testimony established that the victim bled only slightly as a result of the sexual attack. Thus, he asserts, the photograph was deceptive and tended to inflame the jury.

We find no error in the admission of this photograph. The subject matter of the picture was relevant to the case, for it depicted the scene of the rape of which appellant was convicted. Moreover, we do not believe this photograph is overly gruesome. Even if we were to conclude that it is revolting or gory, these characteristics would not render the picture inadmissible. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Wilson v. State, (1978) 268 Ind. 112, 117, 374 N.E.2d 45, 48. A photograph is admissible, despite its gruesome nature, if it accurately depicts a scene or object which a witness could describe. Porter v. State, (1979) Ind., 391 N.E.2d 801, 812; Wilson v. State, supra. State's Exhibit Four clearly meets this test. See Drollinger v. State, supra.

As to appellant's claim that the photograph could have deceived the jury, we note that earlier testimony had established that appellant was in close proximity to the bed when he was shot in the shoulder by one of the investigating police officers. Thus, if the jury believed the spot was blood, they reasonably could have concluded that it was appellant Bledsoe's blood, not the victim's. Moreover, appellant did not cross-examine any witness concerning the nature or origin of the spot. While the prosecutor might have been well-advised to establish this fact on direct examination of the victim's mother, through whom the photograph was introduced and admitted, we do not believe his failure to do so created a prejudicially deceptive impression for the jury, especially not one which defense counsel could not have cleared up on cross-examination. There is no error here.

II.

Appellant next argues he was denied the presumption of innocence throughout the trial. He bases this contention on the fact that he wore identifiable jail clothing during trial. He now claims that he was compelled to wear the jail garb, in contravention of Estelle v. Williams, (1976) 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, and that he was thereby denied due process and the presumption of innocence.

In Estelle v. Williams, supra, the United States Supreme Court held that a state denies the accused due process if it forces him to be tried in identifiable jail or prison clothing. However, "the Court refused to establish a per se rule invalidating every conviction in which the defendant was dressed in jail attire." Carter v. Estelle, (5th Cir. 1976) 537 F.2d 197, 199. Instead, Estelle v. Williams and subsequent cases have clearly established that the central issue is whether the accused was compelled to appear before the jury in jail garb. See, e. g., Carter v. Estelle, supra; Gray v. Estelle, (5th Cir. 1976) 538 F.2d 1190. Further, the right to be tried in civilian clothing may be waived. The defendant must invoke this right by objecting to his appearance in jail garments. As the Court in Estelle v. Williams explained:

"We are not confronted with an alleged relinquishment of a fundamental right of the sort at issue in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). There, the Court understandably found it difficult to conceive of an accused making a knowing decision to forego the fundamental right to the assistance of counsel, absent a showing of conscious surrender of a known right. The Court has not, however, engaged in this exacting analysis with respect to strategic and tactical decisions, even those with constitutional implications, by a counseled accused. See, e. g., On Lee v. United States, 343 U.S. 747, 749 n.3, 72 S.Ct. 967, 969, 96 L.Ed. 1270, 1273 (1952). Cf. Fed.R.Crim.P. 11.

The Second Circuit has noted in a different context:

'Federal courts, including the Supreme Court, have declined to notice (alleged) errors not objected to below even though such errors involve a criminal defendant's constitutional rights.'

United States v. Indiviglio, 352 F.2d 276, 280 (1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation."

425 U.S. at 508 n.3, 96 S.Ct. at 1695, 48 L.Ed.2d at 133. Thus, the Court held: "(T)he failure to make an objection to the court as to being tried in such (prison) clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." Id. at 512-13, 96 S.Ct. at 1697, 48 L.Ed.2d at 135. See United States v. Spiegel, (5th Cir. 1979) 604 F.2d 961, 965 n.9; Camp v. United States, (8th Cir. 1978) 587 F.2d 397, 400.

It is clear, then, that in determining whether the accused was compelled to stand trial wearing jail clothing, we must focus upon what actions the accused and his attorney took to alleviate what they now see as a problem. As the Court explained in Estelle v. Williams, whether the accused will stand trial in identifiable prison garb is a decision which rests with the accused and his attorney. See Carter v. Estelle, supra; Gray v. United States, supra. In the case before us, the record reveals that counsel did not bring this matter to the trial court's attention until shortly before the jury selection process began. Appellant Bledsoe was confined in the Marion County Jail prior to trial. While counsel asserts his client was indigent, Bledsoe testified at the hearing on this issue that he had clothing at his home in Indianapolis; however, Bledsoe said nothing at any time to jail or court personnel concerning these clothes. Moreover, this cause had reached an even later stage in the proceedings some six weeks earlier, on April 24, and neither Bledsoe nor his attorney raised any question at that time concerning his clothing. The April 24, trial date had been set for approximately five weeks, and no mention was made of the clothing issue during that five-week period. The date on which this case was ultimately tried, June 6, was selected on April 24. Again, neither Bledsoe nor his attorney raised this issue to anyone during this period. The trial court thus did not become aware of appellant's desire to be tried in civilian clothes until moments before the trial began.

It is apparent, then, that defendant and his counsel did not consider this matter to be particularly important, and chose not to raise the question until very late in the proceedings. We are mindful of the Supreme Court's words in Estelle v. Williams :

"Nothing in this record, therefore, warrants a conclusion that respondent was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial. 9 Nor can the trial judge be faulted for not asking the respondent or his counsel whether he was deliberately going to trial in jail clothes. To impose this requirement suggests that the trial judge operates under the same burden here as he would in the situation in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), where the issue concerned whether the accused willingly stood trial without the benefit of counsel. Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before...