Doerner v. State

• Decision Date: 03 December 1986
• Docket Number: No. 385S128,385S128
• Citation: 500 N.E.2d 1178
• Parties: Larry E. DOERNER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1178

500 N.E.2d 1178

Larry E. DOERNER, Appellant, v. STATE of Indiana, Appellee.

No. 385S128.

Supreme Court of Indiana.

Dec. 3, 1986.

John F. Davis, Mary Jane Humphrey, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction of murder, I.C. Sec. 35-42-1-1. A jury tried the case. Appellant Doerner received a sentence of sixty years.

Appellant raises seven issues on appeal: (1) whether the trial court erred in admitting into evidence his inculpatory written and taped statements and his signed Miranda waiver form; (2) whether the trial court erred in admitting into evidence an allegedly inflammatory and prejudicial photograph of the victim; (3) whether the trial court erred in sustaining an objection on hearsay grounds to a question posed to witness Frields; (4) whether the trial court erred in permitting the State to ask a leading question to State's witness Hawley; (5) whether the trial court erred in permitting the State's expert witness to testify about the cause of the victim's injuries; (6) whether there was sufficient evidence to support his murder conviction; and, (7) whether the trial court erred in imposing an aggravated sentence.

These are the facts from the record which support the determination of guilt. The victim, Walda Daniels, was a thirteen month old baby girl. On February 4, 1984, appellant brought her to the emergency room of Deaconess Hospital in Evansville. She had a pulse, but she was not breathing. An X-ray revealed a skull fracture and an examination of her eyes indicated severe brain damage. She languished in the hospital for two days until brain death occurred. Thereafter, the life support systems were disconnected.

She died from multiple blows to the head, abdomen, and buttocks. These blows induced internal hemorrhaging in each of these areas of her body.

Appellant admitted to police and at trial that he had shaken the victim, and in the process, her head hit a door jamb. In addition, he admitted to beating her on the buttocks in the midst of a rage.

I

Appellant argues that the trial court erred in admitting into evidence his inculpatory written and taped statements and his signed Miranda waiver form because the police obtained them after he asserted his right to counsel.

On July 18, 1984, appellant moved to suppress the written and taped statements and the signed Miranda waiver form. On July 24, 1984, the trial court held a hearing on the motion to suppress, and it entered its findings of fact and conclusions of law. Appellant made timely objection at trial to the admission of the exhibits containing the challenged evidence. He also included the issue in his Motion to Correct Errors.

The Fifth and Fourteenth Amendments to the United States Constitution secure to each citizen the right to the presence and advice of counsel during custodial interrogation by the police. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. A confession of guilt procured from a subject during custodial interrogation is not admissible in a trial of criminal charges in the absence of proof beyond a reasonable doubt that counsel was present or the right thereto was voluntarily and knowingly relinquished prior to the commencement of the interrogation. Moore v. State (1984), Ind, 467 N.E.2d 710; Ortiz v. State (1976), 265 Ind. 549, 356 N.E.2d 1188. When the right of counsel is asserted during questioning that process must cease, and a confession procured by interrogators thereafter is per se inadmissible in the absence of a new waiver of counsel evidenced by proof that the suspect initiated the resumption of questioning. Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. The accused's initiation of a dialogue with the police does not suffice ex propio vigore to show a waiver of the right to counsel. A separate inquiry to determine whether the accused knowingly and intelligently waived his right is required. Oregon v. Bradshaw (1983), 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405.

The evidence that supports the trial court's ruling is as follows. On February 22, 1984, at 12:30 p.m., the police arrested appellant and his wife at their home. The police advised them of their rights. Appellant requested an attorney; consequently, the interrogation ceased. Subsequently, appellant was subjected to the booking process. During the booking process, appellant and his wife requested to talk to each other. The police allowed them to do so for about fifteen minutes. Thereafter, Officer Brown attempted to take appellant back to resume the booking process. Appellant resisted and began to ask questions. Officer Brown informed him that he could not answer his questions because he had asserted his right to an attorney. At that point, Officer Brown read a waiver of rights form to appellant, and appellant signed it. Then, appellant gave the statements which he sought to suppress.

The trial court did not err in its ruling because it is clear that appellant initiated the questioning and that he knowingly and voluntarily waived his right to counsel.

II

Appellant argues that the trial court erred in admitting into evidence State's Exhibit # 4, a photograph of the victim, because it was inflammatory and prejudicial. He timely objected at trial. He also included the issue in his Motion to Correct Errors.

"When photographs are demonstrative of testimony being presented by a witness, they are generally admissible. 'Although the photographs may depict gory, revolting or inflammatory details of the crime when presented to the jury, this is not a sufficient basis for excluding such evidence.' Wilson v. State (1978), 268 Ind. 112, 116, 374 N.E.2d 45, 48. The relevancy of the photographs may be determined by inquiry as to whether a witness would be permitted to describe verbally the objects photographed."

Drollinger v. State (1980), 274 Ind. 5, 408 N.E.2d 1228, 1237.

Here, the pathologist, who conducted the autopsy, testified that the photographs were necessary to demonstrate the nature and the extent of the victim's injuries. Consequently, the trial court did not err in admitting into evidence State's Exhibit # 4.

II

Appellant argues that the trial court erred in sustaining an objection to a question he posed to witness Frields. He claims the answer sought falls under an exception to the hearsay rule. The pertinent part of the record is set forth here:

Q. Did she ever tell you that she seen Walda throw herself down in the bed when she would get mad and wouldn't want to go to bed?

Mr. Zoss: I am going to OBJECT. That is hearsay and also calls for a conclusion as to her truthfulness.

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By The Court: I will sustain the objection.

"Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." McCormick, Evidence, Sec. 225 (1954).

Indianapolis Newspapers, Inc. v. Fields (1970), 254 Ind. 219, 259 N.E.2d. 651, 673. The rule applies to written as well as oral statements, and relates to the competency of matter and not its relevance. It ".. excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to the truth of the matter asserted." 6 Wigmore, Evidence Sec. 1766 (3d. ed. 1940). Indianapolis Newspapers, Inc. v. Fields, Inc, supra [259 N.E.2d] at 674. The rule applies to statements of fact which can be considered true or false. If the questioned utterance is offered to prove the fact of the utterance and not offered to prove the truth of the facts asserted, then there is no hearsay. The fact of the utterance may safely rest for its evidentiary value upon the credibility of any witness who may have heard or read it and testifies to it in court. The rule guards against fact asserted in an utterance because it rests for its evidentiary value, not upon the credibility of any witness who may have heard it, but upon the actual asserter who is absent from the trial. Hearsay evidence may nevertheless be admissible at trial under exceptions, the basis for which relates to the existence of adequate substitutes for cross-examination of the asserter.

Connell v. State (1984), Ind., 470 N.E.2d 701, 705-706; See also Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759.

Here, the statement was made out of court. The statement was offered as an assertion to prove the truth of the matters asserted therein; consequently, it was hearsay. However, in spite of the statement's hearsay character, appellant argues that the statement should have been allowed under the hearsay exception enunciated in Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482. There, the Court held that the hearsay rule does not prevent the admission of evidence of an out-of-court assertion of fact when the declarant is present in court and subject to cross-examination concerning the assertion. See Patterson, supra, 324 N.E.2d at 484; and Miller, Indiana Evidence Sec. 801.401 p. 109. Although there is some debate, the Patterson rule is best characterized as a hearsay exception by reasoning that the actual opportunity for cross-examination and the adequate substitute for cross-examination are equivalent. Here, the statement could have been admitted into evidence because the out-of-court declarant was present in the court and subject to cross-examination.

However,

"Although we have held that it is not error to permit hearsay evidence to be considered as substantive evidence if the requirements of Patterson were met, it does not follow that hearsay not yet admitted is rendered admissible as substantive evidence simply because those requirements can be met. If the out-of-court declarant is available when the evidence is offered, there is no need...