Bray v. State
| Citation | 430 N.E.2d 1162 |
| Decision Date | 11 February 1982 |
| Docket Number | No. 581S130,581S130 |
| Parties | Robert BRAY and Clinton Davis, Appellants, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Kenneth L. Anderson, Griffith, for appellants.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendants-appellants Robert Bray and Clinton Davis were convicted of Burglary, Ind.Code § 35-43-2-1 (Burns Repl. 1979) in Lake Superior Court on January 28, 1981. The crime was a Class B felony because § 35-43-2-1 so provides when the offense "is committed while armed with a deadly weapon or if the building or structure is a dwelling, ...." Clinton Davis was given a sentence of twelve years imprisonment on February 5, 1981, and Robert Bray was given fourteen years imprisonment on February 6, 1981. Their sentences and convictions are the subjects of this appeal.
Defendants raise seven errors in the proceedings of their trial below, concerning: (1) whether the trial court erred in admitting photographs without proper authentication; (2) whether the trial court erred in admitting a duplicate of a property receipt; (3) whether the trial court erred in admitting a photograph without establishing the proper chain of custody; (4) whether the trial court erred in admitting a photograph without establishing its relevancy; (5) whether the trial court erred in admitting hearsay evidence; (6) whether the trial court erred in denying defendants' motion for judgment on the evidence and whether there was sufficient evidence to sustain the convictions; and (7) whether the sentences imposed by the trial court were cruel and unusual punishments and unreasonable.
The crime in question occurred on February 27, 1980, when the home of the victim, Mr. DeLoney, was broken into and a console television set was taken. Defendants were arrested that same evening with the missing television set in the trunk of the car they were occupying at the time.
State's exhibits 1-5 and 8 were admitted into evidence over defendants' objection that they were not properly authenticated. Exhibit 1 was a picture of the front of Mr. DeLoney's house; exhibits 2 and 3 showed the bent doorknob and the damaged door by which the defendants entered the house. Exhibits 4 and 5 were photographs of the back and front of the console television set, respectively. Finally, exhibit 8 showed the interior of the car defendants were driving when arrested. Defendants argue that the photographs were taken 5 or 6 days after the crime took place. Both men feel that in that time changes could have taken place and thus the photographs were not properly authenticated.
This Court has stated before that admission of photographs is within the sound discretion of the trial court and will not be disturbed unless the trial court abused its discretion. 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. Chambers v. State, (1979) Ind. 392 N.E.2d 1156, 1160; Gee v. State, (1979) Ind. 389 N.E.2d 303, 310; Wilson v. State (1978) 268 Ind. 112, 116-17, 374 N.E.2d 45, 48. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photographs depict. Murphy v. State, (1977) 267 Ind. 184, 195, 369 N.E.2d 411, 416.
Defendants argue that the five or six day wait before taking the photographs makes them inadmissible into evidence. However, Bray and Davis do not point to any changes that were made before the photographs were taken; they merely speculate that the lapse in time can possibly give rise to changes in the matter depicted. Their argument is without merit. The important consideration is that the photographs are a true and accurate representation of the things they are intended to portray. Mr. DeLoney stated that exhibits 1-3 accurately portray the front of his home and the damaged door as he found them on the night his house was burglarized. He also stated from the witness stand that exhibits 4 and 5 portrayed the stolen television set. Defendants do not argue that Mr. DeLoney would not be able to describe verbally the subjects depicted; therefore, exhibits 1-5 were properly admitted.
As to exhibit 8, there was a change in the subject depicted between the time the men were arrested and the picture was taken. Exhibit 8 shows the front interior of the car defendants were driving and also shows the location of a tire iron on the floor of the automobile. In addition, the photograph shows snow covering portions of the seat and floor. However, Officer Mitchell, the testifying witness, stated that, except for the snow, the photograph was an accurate portrayal of the interior of the car when the two men were arrested. The presence of the snow has not crippled the introduction of this exhibit nor has it prejudiced the defendants. In this situation, the time element and the presence of the snow would affect the weight to be given to the photographs, not their admissibility. Compare Sloan v. State, (1980) Ind., 408 N.E.2d 1264, 1266. There is no trial court error here.
Officer Mitchell removed the television set from the defendants' car and wrote up a departmental receipt for the console when he turned it in at the station. On the witness stand, Mitchell was shown a photograph of the property receipt. He identified State's exhibit 7 as the same property receipt he wrote for the television after he took it from the defendants. Defendant Bray's attorney raised an objection when the State sought to have the exhibit introduced into evidence. The following discussion was held outside the hearing of the jury.
BY MR. SCHNEIDER (Bray's attorney):
Mr. Troumouliaris has no objection to State's Exhibit Seven. My objection, I don't know if the Court would consider it proper, would be two things. Best evidence would be the actual sheet itself unless the State could explain at this time why the original is not here and the other point is, I think it is irrelevant to the case in chief.
BY MR. JACKSON:
Concerning the relevancy, I think it is necessary that it be established that the TV he found in the back seat or the trunk with that serial number is the same serial number that appears on Mr. DeLoney's sales receipt for the television set.
Okay, I think that the receipt has some probity value, what about the best evidence?
BY MR. JACKSON:
I have got the original, but the best evidence rule pertains to the actual existence of a document. If the question is Mr. Schneider doesn't believe the document really exists, I will get the original out of the file, but it's going to take us longer.
The trial court judge then allowed the exhibit to be introduced into evidence.
Defendant Davis cannot claim error on appeal for this issue because he has waived any error in its admission by failing to raise a timely and specific objection at trial. Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1367; Merrifield v. State, (1980) Ind., 400 N.E.2d 146, 149. Defendant Bray argues that admitting the photograph when the actual document is available violates the best evidence rule. We feel that defendant misconstrues the best evidence rule. We held recently in Brandon v. State, (1979) Ind., 396 N.E.2d 365:
"It has already been clearly established in this state that a duplicate of a document is admissible in evidence 'to the same extent as an original unless a genuine issue is raised as to the authenticity of the original, or under the circumstances existing it would be unfair to admit the duplicate as an original.' "
Id. at 396 N.E.2d at 370, quoting Wilson v. State, (1976) 169 Ind.App. 297, 304-05, 348 N.E.2d 90, 95.
The record shows that Mr. Jackson asked Mr. Schneider if he did not believe that the actual document existed. It appears that Mr. Schneider did believe it existed and did not contest the language or contents of the property receipt; rather, he felt that the original should have been introduced instead of the photograph. There was no error or prejudice to the defendant in allowing the introduction of the photograph.
Defendants also objected to the introduction of State's exhibit 8, a picture of the car's interior and position of a tire iron on the floor, because of a lack of evidence showing chain of custody. As noted above, snow had fallen into the car between the time of the arrest and the time the picture was taken. Defendants believe that there was a possibility that someone could have tampered with the car, although they do not point to any specific tampering.
We stated before in Gee v. State, (1979) Ind., 389 N.E.2d 303:
The above reasoning in Gee applies to the case at hand. The interior of the automobile had non-fungible characteristics and Officer Mitchell described the photograph as a true and accurate representation except for the snow, of the interior of the car on the night defendants were...
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