Bush v. State

• Decision Date: 31 March 1980
• Docket Number: No. 1-1279A348,1-1279A348
• Citation: 401 N.E.2d 796
• Parties: Percy BUSH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 796

401 N.E.2d 796

Percy BUSH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-1279A348.

Court of Appeals of Indiana, First District.

March 31, 1980.

Dennis Brinkmeyer, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Percy Bush was convicted of the offense of burglary, a class C felony, ¹ and sentenced to a fixed term of six years. He appeals from said conviction. We affirm.

STATEMENT OF THE FACTS

The facts as gleaned from the evidence most favorable to the State reveal that the Jesse Stock Insurance Company building in Evansville was protected by a Sonitrol alarm system. About 11:30 p. m. on March 24, 1979, the Sonitrol central office called one P. V. Smith, an employee of Stock, and in response to such call, Smith proceeded to the office of Stock. Evansville city police were also dispatched to that location. When Smith arrived, he noticed that a small window in the back door had been broken and that the lights were on in the office. Smith also testified that there were stains on the curtains in the employees' lunch room and lounge. Smith further identified as his chair a chair which apparently had been thrown through a large window in his office. Photographs of the chair, the broken window, and the stained drapes were admitted in evidence.

Officer Schnacke and Weaver proceeded to the scene pursuant to radio dispatch. The building and window were illuminated by floodlights outside the building. As they approached the Stock building Weaver observed a black male take the curtains, pull them back, and look directly at Weaver. Weaver observed that the black male was wearing a dark three-piece suit and a sock hat. Weaver further stated that he had a good look at the black man's face and that the person was Percy Bush. At the time of this identification the window was not broken. The officers left their car, went to the west side of the building, other officers arrived, and the officers heard glass break. As Officer Weaver ran around the building and ran down the block, he saw a black male running between some houses toward an automobile parked under a carport at 420 South Kentucky Avenue and observed this man open the car door and slide into the front seat and lie down. Officer Schnacke also had seen a person run up the driveway and get into the car under the carport. Schnacke identified this person as Bush. Bush was apprehended by the officers as he was lying on the front seat of the car, which car was jacked up on a bumper jack. Bush was dressed in a dark three-piece suit but without a sock cap. A sock cap was found on the floor of the Stock office building. When he was apprehended by the police, there was a tear on Bush's right trouser leg just above the knee, and there were several slashes on the left sleeve and back of his jacket. When Officer Schnacke took Bush into custody, Schnacke observed a cut on Bush's left wrist and cuts on Bush's coat sleeve and pants leg. Bush was taken to the hospital where photographs were taken showing a cut on his leg above the knee and a cut or slash on his left coat sleeve. The photographs (State's Exhibits 9, 10, and 11) also show Bush wearing a three-piece suit.

The evidence further showed that the stain on the curtains was blood and that there was a blood stain on the back of the chair which apparently had been thrown through the large window.

Witness Smith testified that upon examination of the office he found nothing missing. However, Officer Schnacke testified that the office appeared to have been completely ransacked.

ISSUES

1. Whether the court erred in admitting over objection State's Exhibits 9, 10, and 11 (the photographs of Bush taken at the hospital).

2. Whether the evidence was insufficient to support the verdict.

DECISION

Issue One

Bush contends that it was prejudicial error for the trial court to admit the photographs taken of him while in custody, which photographs displayed the cut on his leg and the cut on his jacket sleeve (State's Exhibits 9, 10, and 11). Bush relies on Blue v. State, (1968) 250 Ind. 249, 235 N.E.2d 471, and Vaughn v. State, (1939) 215 Ind. 142, 19 N.E.2d 239, ² contending that State's Exhibits 9, 10, and 11 were "mug shots," and thus inadmissible under the cases cited. We do not agree.

It is true that Blue v. State, supra, and Vaughn v. State, supra, held that the admission of "mug shots" of the defendant was improper. However, in this case, Bush's reliance on Blue and Vaughn is misplaced, because, in the first place, the photographs in question were not "mug shots." A careful reading of Blue and Vaughn discloses the true definition of a "mug shot" and the grounds of inadmissibility of such photographs. A "mug shot" as defined by those cases is the typical police photography exhibiting both front and profile views of the person with case numbers and police department identification thereon. In the Blue case, at 250 Ind. 251, at 235 N.E.2d at 472, the court said:

"The photographs in question were the typical police pictures depicting the subject in three (3) classic poses: a full-length standing view, a sitting close-up facial view, and a sitting side-profile view. In the photographs, the subjects were wearing signs which had inscribed on them: Gary Indiana Police Department, the subject's number, and the date the photograph was taken. * * * "

The foregoing quoted portion of Blue v. State, supra, describes the type of police photograph which is generally denominated a "mug shot."

The reason given by the cases for denying admission into evidence of such "mug shots" is that the admission of photographs of the general type which are within the classification of "mug shots" would reveal to the jury that the defendant had a prior criminal record. Blue v. State, supra, at 250 Ind. 253, at 235 N.E.2d 473, quoted from Barnes v. United States, (1966) 124 U.S.App.D.C. 318, 365 F.2d 509, as follows:

" * * * The double-shot picture, with front and profile shots alongside each other, is so familiar, from 'wanted' posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic. * * * "

The rule excluding such photographs was succinctly stated by Judge Lowdermilk in Shindler v. State, (1975) 166 Ind.App. 258, 275-76, 335 N.E.2d 638, 648:

"Numerous cases in this State have established that, generally, when a defendant does not take the stand or otherwise place his character in issue, 'mug shots' are not properly admissible when they tend to prove or imply that the defendant has a criminal record." (Citations omitted.)

State's Exhibits 9, 10, and 11 are clearly not "mug shots" as that term is generally understood. These photographs were taken at a hospital and depict Bush lying on a cart in an examining room. There is nothing whatever about these photographs which in any manner would tend to convey an impression that Bush had a prior criminal record or had been in trouble with the police previously. It is true that a police officer appears in Exhibit 9, and that a close inspection of Exhibits 9 and 11 reveals that Bush is handcuffed. However, the testimony already had disclosed that Bush had been arrested and taken to the hospital in custody of the police. No prior criminal or arrest record is implied in the photographs or could be inferred from them. The evil of the "mug shot" the connotation of prior criminal activity by the person portrayed is not present here. Bush's "mug shot" objection to the admission of Exhibits 9, 10, and 11 is unavailing.

The exhibits were relevant. Evidence which has even a slight tendency to prove a material fact in issue is relevant. Jones v. State, (1979) Ind., 385 N.E.2d 426. In view of the evidence of blood stains on the curtains and on the chair in question, the jury could have inferred from the evidence of cuts on Bush, that the blood stains came from contact with him. Also, the jury could have inferred from the cuts and tears on Bush's clothing, as testified to and as shown in the photographs, that Bush cut or tore his clothing while departing the building through the broken window. Photographs generally are admissible as evidence of anything to which a witness might testify. Merritt v. State, (1978) Ind., 371 N.E.2d 382. Further, the admission of photographs is within the sound discretion of the court and will not be disturbed unless there is an abuse of discretion. Rogers v. State, (1979) Ind., 383 N.E.2d 1035. There was no abuse of discretion here, and there was no error in the admission of the photographs.

Issue Two

Bush next contends that the evidence is insufficient to support the conviction. He...