Brandon v. State
| Decision Date | 12 April 1978 |
| Docket Number | No. 876S241,876S241 |
| Citation | 374 N.E.2d 504,268 Ind. 150 |
| Parties | Phillip Morris BRANDON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged with first degree murder, found guilty of second degree murder in a trial by jury and sentenced to life imprisonment. He presents the following issues on appeal:
(1) Whether the trial court erred in allowing the introduction into evidence of State's exhibit "P", a pair of bloodstained shoes worn by Defendant on the night the crime was committed.
(2) Whether the trial court erred in giving State's tendered instruction No. 1 on aiding and abetting, over objection by the defendant.
(3) Whether the trial court erred in allowing the State to introduce six photographs of the deceased victim into evidence, over objection by the defendant.
(4) Whether the trial court erred in refusing to give the defendant's tendered instructions Nos. 3 and 4.
(5) Whether there was sufficient evidence presented to sustain the verdict of the jury.
(6) Whether the trial court erred in overruling the defendant's motion to produce and inspect evidence.
Prior to the start of the trial, the defendant filed a motion to suppress a pair of green suede shoes which were taken from his home by investigating police officers. The trial court overruled his motion and the shoes were admitted into evidence over his in-trial objection that the shoes were not properly identified and were also the product of an unlawful search.
With regard to the defendant's contention that the shoes were not properly identified, error, if any, was not preserved for appeal, since the issue was not included in the defendant's motion to correct errors. Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227. We note, however, that although the identification made prior to the admission of the exhibit may not have been adequate, the exhibit was subsequently identified and made relevant by the unequivocal testimony of Officer Brosius.
The motion to suppress the evidence, alleged that the shoes were taken by investigating police officers in an unlawful search of his home. Defendant's argument is that a warrantless search was made without justification, there being in existence none of the factors which would authorize it. However, our decision does not require a determination of whether circumstances authorizing a warrantless search were present. At the suppression hearing the evidence was conflicting. Defendant's witnesses presented testimony indicative of an unauthorized search, however, the testimony of the State adequately supported the trial court's ruling. Officer Brosius testified that while he was questioning the defendant at his home, he asked if he could see the shoes that the defendant had worn on the night in question, and the defendant produced them. Observing what he believed to be blood stains upon the shoes, the officer asked the defendant and his mother if he could take them to the crime laboratory for analysis, and both consented.
The admissibility of evidence, when subjected to a motion to suppress, is determined by the evidence submitted at the hearing. When the evidence is conflicting, the conflicts are resolved by the trial judge conducting the hearing; and as in other sufficiency reviews, we look to the evidence and reasonable inferences supportive of his determination. Riggs v. State (1976), Ind., 342 N.E.2d 838; Cowell v. State (1975), 263 Ind. 344, 331 N.E.2d 21; Rogers v. State (1974), 262 Ind. 315, 315 N.E.2d 707.
The evidence adduced at the suppression hearing was sufficient to support a finding by the trial judge that the shoes had not been obtained by search and seizure but by voluntary delivery and consent. Boys v. State (1973), 261 Ind. 413, 304 N.E.2d 789; McCoy v. State (1960), 241 Ind. 104, 170 N.E.2d 43. It should be noted that Defendant did not challenge the evidence as a product of a custodial interrogation conducted without prior rendition of required warnings, and we have, therefore, not considered the applicability of Justice Hunter's concurring opinion filed in Boys v. State, supra.
Appellate Rule 8.3 requires an appellant predicating error upon the giving of an instruction, to set out in the argument section of his brief the verbatim objection made thereto, as well as the verbatim instruction. Defendant has failed to comply with this rule, and the error, if any, is deemed waived. Notwithstanding Appellate Rule 8.3, we have searched the record and find that it discloses a mere naked objection to the giving of such instruction without stating the grounds therefor. Trial Rule 51(C) provides: "No party may claim as error the giving of an instruction unless Additionally, we fail to see how the giving of such instruction could have prejudiced the defendant. The evidence of his guilt as a principal was substantial, and the defendant himself asserts that there was no evidence of his being an accessory. We fail to perceive how the jury could have acquitted him as a principal in the face of convincing evidence, only to convict him as an accessory upon mere conjecture and speculation.
he objects thereto * * *, stating distinctly the matter to which he objects and the grounds of his objection." (Emphasis ours).
Two of the photographs were admitted without objection, and error, if any, relative thereto was, therefore, waived. Ortiz v. State (1976), Ind., 356 N.E.2d 1188. Of the remaining four, three depict various angles of the victim's seminude body, taken at the scene of the murder. The fourth photograph was taken at the autopsy and shows the upper portion of the decedent's body and head.
Trial courts may exercise wide discretion in determining the admissibility of photographic evidence. The test to be applied is whether or not the photographs are relevant to any material issue in the case, with the issue of relevancy determined by whether or not the photographs evidence anything that a witness would be permitted to testify to if identified and verified by the witness. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482; Birkla v. State (1975), 263 Ind. 37, 323 N.E.2d 645.
In the case at bar the photographs were relevant for the purpose of depicting the decedent as she was found shortly after her death and for depicting the nature and extent of the wounds which she received. Although exhibits K, L, and M are somewhat gruesome and repetitious, they are not rendered inadmissible on that basis alone. Without a clear showing of prejudicial imbalance between relevance on the one hand and the tendency to appeal to passion and prejudice on the other, the trial court's determination will not be disturbed. Patterson, supra.
The refused instructions related to the presumption of innocence and to reasonable doubt. We need not determine whether such instructions were correct statements inasmuch as the subject matters of the refused instructions were adequately covered by other instructions given by the court.
Preliminary instruction No. 3 was as follows:
"Under the law it is your duty to presume the defendant in this case to be innocent of the crime charged against him and this presumption remains with him step by step throughout this trial, and will go with you into your jury room and during deliberations along with all other competent evidence and it is your duty, if it can be consistently done, to reconcile all of the evidence in this case upon the theory that he is innocent, and, so long as you or any one of you have, from the evidence or lack of evidence in this case, a reasonable doubt as to his guilt, he should not be convicted."
Final instruction No. 7 contained the following statement:
"Evidence is sufficient to remove reasonable doubt when it is sufficient to convince the judgment of ordinarily prudent men of the truth of a proposition with such force that they would act upon that conviction without hesitation, in their own most important affairs, under circumstances where there was no compulsion or coercion upon them to act at all, then if; you are so convinced in this case; you will have attained such degree of certainty as excludes reasonable doubt and authorizes conviction."
And final instruction No. 8 concluded with the following statement:
To continue reading
Request your trial
-
Rowan v. State
... ... Page 817 ... subject of the photographs. Gee v. State, (1979) Ind., 389 N.E.2d 303; Rogers v. State, (1979) Ind., 383 N.E.2d 1035; Brandon v. State, (1978) 268 Ind. 150, 374 N.E.2d 504. In the instant case, the photographs were relevant to show the nature of the victim's wounds and were not unduly prejudicial. There was no abuse of discretion here ... Defendant next contends that the trial court erred in ruling ... ...
-
WTHR-TV, In re
...within [the State's] exclusive possession" was properly denied because it was overly broad and non-specific. Brandon v. State, 268 Ind. 150, 158-59, 374 N.E.2d 504, 508-09 (1978) (internal quotation marks omitted). The requirement of particularity has embraced other considerations as well. ......
-
Vaughan v. State
... ... 3 A court does not err in refusing a tendered instruction if other instructions adequately state the law. Gilmore v. State, (1981) Ind., 415 N.E.2d 70, 74; Brandon v. State, (1978) Ind., 268 Ind. 150, 374 N.E.2d 504, 507. Therefore, the question presented by Vaughan is whether it is reversible error to omit an explicit reference to the presumption remaining with the defendant throughout the trial, step by step ... Indiana has long required ... ...
-
Smith v. State
... ... Rowan v. State, (1982) Ind., 431 N.E.2d 805; Rogers v. State, (1979) 270 Ind. 189, 383 N.E.2d 1035; Brandon v. State, (1978) 268 Ind. 150, 374 N.E.2d 504 ... Here, the police officer testified that the photographs accurately represented the scene of the crime, the victim, and the victim's wounds as he observed them upon his arrival on the scene. Three of the photographs show the ... ...