Gambill v. State, 183

Docket NºNo. 183
Citation479 N.E.2d 523
Case DateJune 26, 1985
CourtSupreme Court of Indiana

Page 523

479 N.E.2d 523
John GAMBILL, Appellant,
STATE of Indiana, Appellee.
No. 183 S 11.
Supreme Court of Indiana.
June 26, 1985.

Page 525

Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury of Murder. He received a sixty (60) year sentence.

The facts are: The victim, Ricky Martinez, was virtually unconscious following several hours of alcohol consumption at a party. Some of Martinez's friends carried him to a pickup truck. The friends placed Martinez in the cab of the truck and left. The following morning they returned to the truck and found him on the ground beside

Page 526

the truck. His throat had been cut, several knife wounds were about the body and the head of the victim had been struck by an object with great force.

Appellant resided with a group of other men in a nearby home owned by Bruce Webber. On the day in question appellant threatened another resident, Walter Gordesky, into accompanying him on a walk. The pair walked in the direction of the home of appellant's mother. When they arrived, the appellant proceeded to break into her car and steal a citizens band radio. Appellant gave the radio to Gordesky to carry and they proceeded to the home of Lonnie Staples where appellant stole another radio.

The pair then began to walk toward their home. As they neared the home, appellant saw the victim in the cab of the truck. Appellant told Gordesky that he would remove Martinez from the truck. As appellant attempted to do that, the victim resisted and struck appellant. Appellant became angry and stabbed the victim with the knife. The victim was then pulled from the truck and his throat was cut. Appellant took the victim's wallet and started to leave.

As appellant walked behind a nearby building, he stopped and picked up a 2 X 4. He returned to the body and hit the victim in the head three times with the 2 X 4. The board was left at the scene and the knife was tossed onto the roof of a nearby building. After they returned to their home, appellant ordered Gordesky to return to the scene with a broom to remove all footprints which might have been left in the snow. Later appellant revealed his role in the activities to Webber and to one other resident of the home. Webber, Gordesky and the other resident, William Netherly, all testified at trial against appellant.

Gordesky testified pursuant to a plea agreement. Appellant raises several issues related to the relevancy of various portions of this testimony. Appellant did not set out either in the Motion to Correct Error or in his brief for this appeal the specific testimony and related objections upon which he now bases his argument. Under Ind.R.Tr.P. 59(D) the issue is waived. Nunn v. State (1983), Ind., 450 N.E.2d 495. However, we address the issues as follows.

Appellant contends the court erred when it permitted Gordesky to testify concerning his personal background over appellant's relevancy objection. The State inquired of Gordesky where and under what circumstances he was raised. The State also questioned the witness concerning his previous marriage. Appellant now contends this testimony was not relevant to the issue at trial. Appellant contends the only purpose served by this testimony was to elicit sympathy from the jury for this less than reliable witness.

Appellant did not raise a specific objection to the testimony at issue. He merely raised the general objection of relevancy. A general objection of this nature without further explanation or the giving of grounds for its lack of admissibility preserves no issue for appeal. Hare v. State (1984), Ind., 467 N.E.2d 7. We deem appellant's argument on this issue waived.

Appellant argues the trial court erred when it permitted Gordesky to testify concerning changes which occurred in the operation of the household after appellant became a resident. Gordesky testified the household had become a "mess" and that appellant dominated the household with his threats of bodily injury. Appellant offered no trial objection to this testimony. He has therefore preserved no error for appellate review. Tabor v. State (1984), Ind., 461 N.E.2d 118; Smith v. State (1983), Ind., 443 N.E.2d 1187.

Appellant maintains the court erred when it permitted Gordesky to answer the following question. "Mr. Gordesky, would you consider yourself as the defendant's goffer [sic]?" Following Gordesky's affirmative answer, appellant objected on the grounds the witness could not describe how he would characterize himself. This objection was after the answer and appellant did not request that the answer be stricken.

Page 527

For appellant's objection to have been timely, and thus preserved for appellate review, the objection must have been made before the answer was given. Harrington v. State (1984), Ind., 459 N.E.2d 369; Tinnin v. State (1981), 275 Ind. 203, 416 N.E.2d 116.

Appellant argues the court erred when it permitted Gordesky to testify as to specific acts of violence committed by appellant in and around the residence. Appellant did not object to this testimony at trial and thus he has waived this issue. Tabor, supra.

Appellant avers the court erred when it permitted Gordesky to testify concerning the thefts of the citizens band radios. Evidence of other crimes is generally not admissible to prove the guilt of the charged offense. McCormick v. State (1982), Ind., 437 N.E.2d 993. The State argues the testimony was admissible under the res gestae exception to the rule citing Cary v. State (1984), Ind., 469 N.E.2d 459. The admission of evidence under the res gestae exception is within the sound discretion of the trial court. Blankenship v. State (1984), Ind., 462 N.E.2d 1311.

We hold the court did not abuse its discretion in admitting this evidence. These thefts involved the same men in an act near in time and place to the incident at issue. These acts were closely connected as part of a crime binge culminating in the homicide at issue. Thus the evidence was properly admitted under the exception.

Appellant contends the court erred when it permitted Gordesky to testify concerning appellant's appearance on days other than the day of the incident. Gordesky testified that on the night in question appellant's eyes were real wide and that he "talked real wild like he was super scared or super mad at someone." The witness was then asked if he had ever observed appellant's eyes look like that in the past. Appellant's counsel then offered a general objection on the grounds of relevancy. This general objection does not preserve an issue for appellate review. Hare, supra.

Appellant next maintains the court erred when it admitted certain physical evidence. During the testimony of Gordesky the State asked the witness to identify Exhibits Nos. 23 and 23(A), two pieces of 2 X 4; Exhibits Nos. 21(A) and 21(B), a broom in two sections, and Exhibit No. 24(B), a knife. Appellant objected on the grounds that a sufficient foundation had not been laid to admit the exhibits.

Appellant challenges the in-court identification of each object. We find the testimony of Gordesky was sufficient to satisfy the requirement that the witness be able to identify the exhibit as one like the object associated with the crime. Appellant's argument goes to the weight of the exhibit and not to its admissibility. Jackson v. State (1984), Ind., 462 N.E.2d 63; Bullock v. State (1978), 178 Ind.App. 316, 382 N.E.2d 179.

Appellant submits the court erred when it permitted the doctor who performed the autopsy to testify that the wounds on the body of the victim were consistent with the use of the 2 X 4 and the knife discussed above. Appellant contends Dr. Dogracias was not sufficiently qualified to offer these opinions as this was the first pathological examination the doctor had performed involving a stab wound. Additionally, appellant contends the doctor's testimony was not consistent with the autopsy report prepared by the doctor.

In the autopsy report the doctor indicated he believed two knives had been used to commit the crime. At trial he indicated he now believed that only one knife was involved. Appellant argues that the change of opinion coupled with the lack of experience demonstrate a lack of qualification to offer expert testimony.

The determination of whether a witness is qualified to testify as an expert is in the sound discretion of the trial court. Forrester v. State (1982), Ind., 440 N.E.2d 475; Moody v. State (1983), Ind., 448 N.E.2d 660.

Dr. Dogracias was eminently qualified by training and experience in the field

Page 528

of pathology. Although this was his first case involving a stabbing, he was qualified to offer his expert testimony on the question at issue. The fact this was his first case of this nature goes to the weight of the testimony and not to its admissibility. See Niehaus v. State (1977), 265 Ind. 655, 359 N.E.2d 513, cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188.

Appellant maintains the court erred when it permitted Dr. Dogracias to testify concerning his review of an unpublished deposition given by another pathologist, Dr. Benz. Dr. Dogracias was unsure of the two-knife theory presented in the autopsy report. Thus he forwarded a copy of all relevant information to Dr. Benz for his evaluation. Based on this information, Dr. Benz gave a...

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