Burns v. State, 27A02–1510–CR–1785.
| Decision Date | 08 September 2016 |
| Docket Number | No. 27A02–1510–CR–1785.,27A02–1510–CR–1785. |
| Citation | 59 N.E.3d 323 |
| Parties | Donald J. BURNS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Joseph P. Hunter, Muncie, IN, Attorneys for Appellee.
Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorney for Appellant.
[1] Donald Burns appeals his convictions for murder, a felony,1 two counts of forgery, as Class C felonies,2 theft as a Class D felony,3 and two counts of receiving stolen property, as Class D felonies.4 He also was found to be an habitual offender.5 He alleges the trial court abused its discretion when it admitted certain photographs at trial, and that there is insufficient evidence of his intent to kill the victim to support a conviction of murder. We affirm.
[2] Burns raises the following restated issues for our review:
[3] The facts most favorable to the verdict are as follows. Burns was in financial straits in June of 2011. He had been served an eviction notice for failure to pay fees associated with his trailer and lot rental, and a disconnect warning for failure to pay his utility bills. He no longer was engaged in full-time employment, and instead worked sporadically performing menial labor.
[4] At some point on the day of June 13, 2011, Burns made contact with his seventy-four-year-old aunt, Dorothy Hurd. Hurd left her home with Burns, leaving a note for Robert “Bob” King, a friend of hers, stating: Tr. p. 181. The cemetery was located in Noblesville, Indiana, and was where her late husband as well as Burns' deceased father (Hurd's brother) were buried. Burns murdered Hurd and left her body in a thicket just off an access road near the Mississinewa River in Grant County in an area where Burns had fished in the past.
[5] Later that evening, Burns used Hurd's credit card to purchase three gold necklaces from the jewelry department at Walmart (located in Marion, Indiana) and attempted a second purchase from the jewelry counter which was rejected by the card service. At 5:20 p.m. on that day, Burns pawned Hurd's wedding ring set at the EZ Pawn located in Marion, Indiana. He drove to his wife Janel Bishir's home in Sweetser, Indiana, and left for her an envelope containing (among other things) a greeting card, a ring belonging to Hurd that had been given to Hurd by Bob King, and one of the gold necklaces that had been purchased by Burns using Hurd's credit card.
[6] On June 14, 2011, when members of Hurd's family could not reach her by telephone, they went to her home and found the note Hurd had left taped to the side door window. They checked the voicemail on her phone and heard a message from Hurd's bank that some suspicious transactions had been made and attempted with her credit card. They called the police.
[7] A police officer drove to Burns' trailer and attempted to speak with him about Hurd's disappearance. At the time, Burns was on parole for a prior conviction. When the officer spotted Burns and called to him, Burns jumped into his vehicle and drove away. The officer pursued Burns and Burns soon stopped his vehicle and surrendered. Burns was taken into custody. That evening, a resident of the trailer park where Burns lived found a plastic bag on the premises containing Hurd's VISA credit card that had been used by Burns at Walmart, a JC Penney credit card in Hurd's name, a blank check from Hurd's checking account, and two gold necklaces.
[8] While being held in jail, Burns wrote to his wife Janel Bishir urging her to “take those two things I gave you ... and flush them down the toilet;” and, “get rid of them” so that “no one will ever know.” Tr. p. 594. Burns sent the letter sometime during the last week of June, 2011.
[9] The police investigation of Hurd's disappearance led to evidence of the above stated facts and that Burns' cell phone, which Burns had told the police was always with him, had been used in the vicinity of Mississinewa River at 1:05 p.m. on June 13, 2011, the day of Hurd's disappearance. A search eventually led to the discovery of Hurd's remains on February 9, 2012. A forensic investigation showed that Hurd had been struck multiple times, causing several factures to her skull and jaw prior to her death. Evidence was presented that her death, most likely, was due to that trauma, and that such trauma could not have been accidentally inflicted or inflicted by Hurd herself.
[10] The remains were a skeletal torso and upper legs, scattered other bones, and a skull separated from the torso. It was concluded that Hurd's body had been subjected to scavenging animals, causing the separation of the body and skeleton into pieces.
[11] Burns was charged with Hurd's murder, one count of theft, two counts of forgery, and two counts of receiving stolen property. At the conclusion of the trial, the jury found Burns guilty as charged and also found him to be an habitual offender. Burns received a total sentence of 103 years. He now appeals.
[12] Burns contends that the trial court erred in admitting photographs of the site where Hurd's bodily remains were discovered, photographs of Hurd's bodily remains, and autopsy photographs. Burns argues the prejudice attributable to the photographs' gruesomeness substantially outweighed their probative value, that some photographs were cumulative and duplicative, and that some photographs were taken after medical intervention or after the autopsy was completed. The State maintains the photographs were properly admitted “because they were probative, relevant, accurate representations of the crime.” Appellee's Br. p. 18.
[13] The admission and exclusion of evidence falls within the sound discretion of the trial court. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). This Court reviews the admission of photographic evidence only for an abuse of discretion. Pruitt v. State, 834 N.E.2d 90, 117 (Ind.2005), cert. denied; Ealy v. State, 685 N.E.2d 1047, 1049–50 (Ind.1997). Photographs may be excluded only if their probative value is substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403 ; see also, Byers v. State, 709 N.E.2d 1024, 1028 (Ind.1999). No claimed error in admitting photographs will prevail “unless a substantial right of the party is affected.” Ind. Evidence Rule 103(a) ; see also, Pruitt, 834 N.E.2d at 117 ; Corbett v. State, 764 N.E.2d 622, 628 (Ind.2002). “Whether an appellant's substantial rights are affected is determined by examining the ‘probable impact of that evidence upon the jury.’ ” Pruitt, 834 N.E.2d at 117 (quoting Corbett, 764 N.E.2d at 628 ).
[14] Generally, photographs that depict a victim's injuries or demonstrate the testimony of a witness are admissible. Corbett, 764 N.E.2d at 627 (citing Fentress v. State, 702 N.E.2d 721 (Ind.1998) ); Ind. Evidence Rules 401, 402. Photographs that may be gruesome in nature are admissible if they act as interpretive aids for the jury and have strong probative value. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind.1999). Though autopsy photographs have been found to be inadmissible to avoid the risk that the finder of fact could mistakenly infer that the defendant inflicted the autopsy incision, Allen v. State, 686 N.E.2d 760, 776 (Ind.1997), cert. denied, exclusion of such photographs is not necessary if they are accompanied by testimony to explain what had been done to the body, thus minimizing the potential for confusion and showing that the probative value outweighed the prejudicial effect. Corbett, 764 N.E.2d at 627 (citing Fentress, 702 N.E.2d at 722 ).
[15] Burns challenges the admission of twenty-eight photographs, over his objections at trial, which included eleven photographs of Hurd's skull, six photographs of her torso, two photographs of her hand, seven photographs depicting either the site where Hurd's remains were found or the remains themselves in the condition in which they were discovered, and two photographs showing Hurd's torso at the time the autopsy was performed.6 The admission of these photographs was not error.
[16] No incisions were made to Hurd's remains during the autopsy. The forensic pathologist testified that the autopsy performed on Hurd's remains was not “a full autopsy,” and that “[t]he coroner requested that I don't do any kind of incision or invasive testing.” Tr. p. 841. The remainder of the photographs show Hurd's remains as they were on the day they were found and on the following day when the remains were recovered.
[17] The Indiana State Police crime scene investigator who was present when Hurd's remains were found and recovered testified that the other twenty-six pictures, admitted over objection, depicted the site where Hurd's remains were found, the actual remains as they were found, and that Hurd's skull was found some distance from her torso and from where other remains were found. See, e.g., Amburgey v. State, 696 N.E.2d 44, 45 (Ind.1998) ().
[18] Burns does not put forth an argument that his substantial rights were affected by the admission of the photographs and does not argue how the admission of the photographs might have prejudiced the jury. Furthermore, evaluating whether the photographs' probative value was substantially outweighed by the danger of unfair prejudice is a discretionary task best performed by the trial court. See Dunlap v. State, 761 N.E.2d 837, 842 (Ind.2002). The photographs, although unpleasant,...
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