Ferrier v. State

• Decision Date: 31 March 1977
• Docket Number: No. 1175S350,1175S350
• Citation: 361 N.E.2d 150,266 Ind. 117
• Parties: Hubert FERRIER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 150

361 N.E.2d 150

266 Ind. 117

Hubert FERRIER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1175S350.

Supreme Court of Indiana.

March 31, 1977.

Harriette Bailey Conn, Public Defender, David P. Freund, Bobby Jay Small, Deputy Public Defenders, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with murder in the first degree. He was convicted of that offense in a trial by jury and was sentenced to life imprisonment. His appeal to this Court presents three issues:

(1) Alleged error in the giving of the State's tendered instruction number 6 to the effect that voluntary drunkenness or intoxication does not excuse crime and that a defendant cannot escape punishment for a crime on the ground that he did an alleged unlawful act while drunk.

(2) Alleged error in the admission of State's photographs (Exhibits 21, 27 and 28) over objections that they were prejudicial, inflammatory, immaterial and irrelevant.

(3) Alleged error in the admission of hearsay evidence.

The evidence revealed that following a verbal confrontation in a bar with the deceased, the defendant left, went to his home and picked up a shotgun and shells, returned to the bar approximately twenty minutes later, renewed the confrontation, and shot and killed his adversary. The defense included a showing that the defendant had been drinking heavily for several hours immediately preceding the argument.

ISSUE I

Over the defendant's objection that the instruction was proper only with respect to a crime involving general intent and was not applicable to the case at bar because it required proof of a specific intent, the Court gave the State's tendered instruction number 6, as follows:

'The Court further instructs you that the condition of mind which usually and immediately follows the excessive use of alcoholic liquors is not, in and of itself, the unsoundness of mind meant by our law. Mere voluntary drunkeness or intoxication does not excuse crime and a defendant cannot escape punishment for a crime on the ground that he did an alleged unlawful act while drunk; and such drunkenness and/or intoxication does not lessen or abate the severity of punishment prescribed by law. In other words, mere voluntary drunkenness or intoxication is no excuse for crime, nor does it mitigate or excuse an offense actually committed.'

The court also gave the defendant's tendered instruction number 2, as follows:

'It is for you to determine the extent of the defendant's intoxication, and whether it operated to prevent his forming the intent necessary to constitute the crime.

'Whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute a particular type or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. Any intoxication, not necessarily total, may be considered on the question of intent.

'The term 'intoxication' means a condition resulting from the drinking of alcoholic beverages which impair a person's normal faculties--either of perception or will or judgment--so that he or she no longer has the capacity to know the nature of the act he is committing, or the capacity to form an intent to commit such an act.'

Citing O'Neil v. State (1939) 216 Ind. 21, 22 N.E.2d 825, the defendant charges that the instruction objected to removed, in effect, the question of intoxication from the It was held under similar circumstances in O'Neil, as pointed out by the defendant, that an instruction incorrectly stating a proposition of law and not withdrawn is not cured by another instruction correctly stating the proposition. However, the O'Neil case can be readily distinguished from the one at bar. In that case the instruction complained of was as follows:

jury and that the giving of his tendered instruction number 2 did not cure the error.

"I further instruct you that voluntary drunkeness cannot justify, excuse or mitigate the commission of a crime, and the fact, if it be a fact, that the defendant may have been drunk to any degree at the time of the killing cannot be taken into consideration by the jury in making up their verdict." (Emphasis added). 216 Ind. 24, 22 N.E.2d 827.

We there said:

'The instruction now under consideration is subject to the same infirmities as the one condemned in the Booher case, supra, if, indeed, it is not even more objectionable because in the case at bar the jury was directly told that the drunkenness of the defendant to any degree, if shown, could not be taken into consideration in arriving at a verdict. * * *.' (Emphasis added). 216 Ind. 26, 22 N.E.2d 828.

In Booher v. State (1901) 156 Ind. 435, 60 N.E. 156, we held an instruction substantially like the one before us to be erroneous in a case where the appellant was charged with assault and battery with intent to commit murder and with conspiracy to commit murder and the defense was predicated upon intoxication. In that case, however, the general instruction that intoxication is not a defense was not followed by the exception covered by the defendant's tendered instruction number 2. The Booher court specifically said, 'The court, on its own motion, gave to the jury, upon the question of appellant's intoxication, the following instruction, which was the only one given upon that feature of the case: * * *.' (Emphasis added).

The instruction complained of in the case before us was not an erroneous statement of a proposition of law. It was incomplete, in view of the requirement of a specific intent embodied in this case. However, the deficiency was supplied by the defendant's tendered instruction number 2.

Instructions are to be considered with reference to each other, and as an entirety, and error in a particular instruction will not justify a reversal unless it is of such a nature that the whole charge of which it forms a part is thereby vitiated so as to mislead the jury as to the law of the case. Anderson v. State (1933) 205 Ind. 607, 186 N.E. 316.

ISSUE II

State's Exhibits Nos. 21, 27 and 28 were admitted into evidence over the defendant's objections. The objection to No. 21 was that it was 'repetitive,' 'prejudicial' and not 'material.' The objection to No. 27 was that it was 'unnecessarily repetitive' and 'prejudicial;' and the objection to No. 28 was that it was 'repetitive' and not 'relevant.'

The defendant's motion to correct errors specifies grounds of objection somewhat different from those interposed at trial, in that 'unnecessarily inflammatory' was added as an additional basis for the objections. The in-trial objections standing alone, appear to be of dubious specificity, and the failure to object on specific grounds is generally considered to be a waiver of the right to rely upon such grounds on appeal. Jethroe v. State (1974) 262 Ind. 505, 319 N.E.2d 133, 137; Tyler v. State (1968) 250 Ind. 419, 421, 236 N.E.2d 815; Jones v. State (1973) 260 Ind. 463, 467, 296 N.E.2d 407. It is unnecessary for us to decide such question, however.

It is the defendant's argument on appeal, relying in the main upon Kiefer v. State (1958) 239 Ind. 103, 153 N.E.2d 899, that Exhibits 21, 27 and 28 were repetitive and gruesome and either devoid of materiality or so lacking thereof that their only effect was to incite indignation and sympathy and thereby subvert the judicial objectives of In Kiefer, Exhibits 9, 10, 11 and 12 were accepted into evidence. They were photographs of the murder victim's nude body taken from different angles at the scene of the crime. Admittedly these photographs were somewhat repetitive and were gruesome, but they were nevertheless relevant to a material issue in controversy. In addition, however, Exhibits 13 and 14 were admitted over proper objection. These photographs showed the victim's nude body, not as it appeared immediately following the crime but rather as it lay on a slab in the mortuary at the time an autopsy was performed. The first of these photographs, being State's Exhibit No. 13, shows the hands of a doctor and nurse with instruments, inside the deceased's chest. The other, State's Exhibit No. 14, is a photograph of deceased's nude body, lying face up on a slab and showing all of the knife wounds, plus additional incisions made in the body by the doctor in performing the autopsy. This photograph showed the body as it appeared after the doctor had finished with the autopsy and not as it appeared in the photographs taken at the scene of the crime.

logic and reason. Each case of a claim of error in the admission of gruesome graphic evidence must be determined in context, however, and we find no similarity in the circumstances of Kiefer and the case at bar.

In holding that the trial court 'abused its discretion' in admitting Exhibits 13 and 14 in the Kefer case, this Court said:

'State's Exhibits Nos. 13 and 14 show nothing and establish no facts not shown by State's Exhibits Nos. 9, 10, 1u and 12. State's Exhibit No. 13, as above...