Hall v. State, No. 779S185

Docket NºNo. 779S185
Citation273 Ind. 507, 405 N.E.2d 530
Case DateJune 14, 1980
CourtSupreme Court of Indiana

Page 530

405 N.E.2d 530
273 Ind. 507
Merle Lee HALL, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 779S185.
Supreme Court of Indiana.
June 14, 1980.
Rehearing Denied Aug. 25, 1980.

[273 Ind. 508]

Page 532

Michael E. Hunt, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Merle Lee Hall, was convicted by a jury of involuntary manslaughter, Ind.Code § 35-42-1-4 (Burns 1979 Repl.) and being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.). He was sentenced to eight and thirty years respectively and now appeals raising the following issues:

1. Whether the trial court erred in denying defendant's motion for change of venue from the county;

2. Whether the trial court erred in admitting into evidence certain exhibits which were color slide photographs showing the body of the deceased;

3. Whether the trial court erred in refusing to give certain of defendant's proposed final instructions and in giving the court's own final instruction No. 9 over defendant's objection;

[273 Ind. 509] 4. Whether the verdict of the jury was supported by sufficient evidence;

5. Whether the trial court erred in denying defendant's motion to dismiss Count II of the amended information, the habitual criminal charge, and in denying defendant's request to strike the allegation of a third felony conviction from this count; and

6. Whether the trial court erred in sentencing the defendant with an allegedly incomplete presentence investigation report.

A summary of the facts from the record most favorable to the state reveals that defendant had been living with the victim Joanne Carline for about four years. (Joanne used the name Joanne Hall although she was not legally married to defendant.) The couple lived at times in a trailer park in Bloomington, Indiana, and at other times in an apartment. In June, 1978, defendant returned to Bloomington after an extended absence in prison. Joanne had been working as a waitress at the Holiday Inn during his absence. Shortly after his return, her co-workers testified that her behavior changed; she started missing work and then appearing at work with bruises all over her body; and that she appeared one time with a large knot on her forehead. Neighbors testified about observing defendant's physical and verbal assaults upon Joanne during this period. Around the middle of July, Joanne was admitted to a Bloomington hospital emergency room with multiple bruises and injuries to her body. She stated at that time that she had been attacked and beaten while walking through a park.

On the night of July 31, 1978, defendant and Joanne were camping at Bean Bloosom Lake with some friends. During the night, the friends testified they heard loud banging noises and Joanne screaming and crying. The next morning, defendant was seen slapping Joanne and she was crying. A few minutes later, Joanne gave a long scream and was seen falling down a long, hilly path. She was taken to the hospital unconscious and died late on August 3, 1978.

Page 533

When defendant learned of her death, he left town with a girlfriend and was later apprehended in the state of Washington. The evidence indicated that Joanne's death was the result of multiple blunt-force injuries to the head and body resulting in subdural hematoma with [273 Ind. 510] acute hemorrhage superimposed upon a chronic subdural hematoma. There was testimony that death as a result of a fall was unlikely, given the nature and location of her bruises and the injury to her head.

I.

Defendant first alleges that the trial court erred in denying his motion for change of venue from the county based upon two arguments. He first claims that he was statutorily entitled to a change of venue as a matter of right because his case was a case where the punishment might have been death. Ind.R.Crim.P. 12. While it is true he was charged with murder, Ind.Code § 35-50-2-3 (Burns 1979 Repl.), the penalty of death only applies to that crime when certain aggravating circumstances are alleged and proved. None of these aggravating circumstances was alleged or shown in defendant's case so the death penalty was not applicable to him. He was not erroneously denied a mandatory change of venue.

Defendant also claims that the trial court erred in denying the motion for change of venue based upon the prejudicial effect of pretrial publicity in local newspapers. A trial court's denial of a motion for change of venue under these circumstances will be reversed only for an abuse of discretion. Williams v. State, (1979) Ind., 386 N.E.2d 670. However, defendant has not presented this Court with a sufficient record to permit review of the publicity. He has not included in the record any of the newspaper articles, or copies of them, alleged to have prejudiced the jury. Since it is the duty of defendant to make a proper record, this failure bars this Court's consideration of them. Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323; Pulliam v. State, (1976) 264 Ind. 381, 345 N.E.2d 229. Defendant claims that these exhibits are too bulky to be incorporated in the transcript and that he has properly named and identified each of them following their exhibit number as is required by Ind.R.App.P. 7.2(A)(3)(b). However, this rule specifically excludes "papers, maps, pictures and like materials." Therefore, defendant was not in compliance with our appellate rules and has waived any further consideration of this issue. An error alleged but not disclosed by the record is not a proper subject for review. Mendez v. State, supra.

[273 Ind. 511] II.

Defendant next contends that it was reversible error to allow into evidence certain photographic slides showing the body of the deceased. He argues that since the exhibits were photographic slides rather than prints and since courtroom lights had to be dimmed and large pictures projected, this prejudicially focused the attention of the jury on the nude body of the victim in an inflammatory manner. However, defendant made no objection to this procedure during the trial and so has waived this ground for appeal. Beasley v. State, (1977) 267 Ind. 396, 370 N.E.2d 360. Furthermore, defendant has not included any of the slides, or prints of them, in the record. As discussed under Issue I above, it is the duty of defendant to present a proper record and this failure also bars any consideration of this issue.

III.

Defendant next contends that the trial court erroneously refused his proposed instructions 1, 2, 3, 4, 5, and 9. We first note that it is well settled that the refusal of a trial court to give a tendered instruction is not reversible error if the instruction incorrectly states the law or if the substance of the instruction was adequately covered by other instructions given by the court. Toliver v. State, (1978) 267 Ind. 575, 372 N.E.2d 452; Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352.

Page 534

Defendant's proposed instruction No. 1 concerned the principle that evidence of other crimes can only be used to judge defendant's credibility as a witness and not as a fact in determining whether or not defendant committed the instant crime with which he was charged. This principle was fully and adequately covered in the court's final instruction No. 7:

"Evidence has been introduced in this case that the defendant has been heretofore convicted of a crime. You have the right to consider such evidence for whatever bearing it has on his credibility as a witness, but you may not consider such evidence for any other purpose, nor can you draw from it the inference that, because he has been previously convicted of a crime, it is therefore more likely that he is guilty of the crime with which he is now charged."

[273 Ind. 512] Defendant's proposed instruction No. 2 was also refused by the court. That instruction first covered the state's burden of proving guilt beyond a reasonable doubt and this burden was fully and adequately covered by the court's final instruction No. 3. Defendant's instruction No. 2 also contained the following language:

"It is not sufficient if the State has enveloped the death of JoAnn Hall in mystery. Before you can find the Defendant guilty, the State is...

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95 practice notes
  • Cuppett v. Duckworth, No. 89-1896
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 8, 1993
    ...was not adequately represented by counsel or knowingly and intelligently waived such representation at the time of the prior conviction." 273 Ind. 507, 405 N.E.2d 530, 536 (1980) (citing, among other state cases, Burgett ). See also Morgan v. State, 440 N.E.2d 1087, 1088 (Ind.1982) (habitua......
  • Johnson v. State, No. 3-680A165
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1981
    ...substance of the refused instruction was covered adequately by other instructions given by the trial court. Hall v. State (1980), Ind., 405 N.E.2d 530, 533. There is no doubt that the substance of the criminal recklessness instructions tendered by Johnson was not covered by other instructio......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Hall v. State, (1980) Ind., 405 N.E.2d 530; Spears v. State, (1980) Ind., 401 N.E.2d 331; Parks v. State, (1979) Ind., 389 N.E.2d 286. This basic standard of review has clearly been held as ......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...offense. This precise issue has been considered and has been decided adversely to the defendant's position. Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d Defendant also argues that even though this is......
  • Request a trial to view additional results
95 cases
  • Cuppett v. Duckworth, No. 89-1896
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 8, 1993
    ...was not adequately represented by counsel or knowingly and intelligently waived such representation at the time of the prior conviction." 273 Ind. 507, 405 N.E.2d 530, 536 (1980) (citing, among other state cases, Burgett ). See also Morgan v. State, 440 N.E.2d 1087, 1088 (Ind.1982) (habitua......
  • Johnson v. State, No. 3-680A165
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1981
    ...substance of the refused instruction was covered adequately by other instructions given by the trial court. Hall v. State (1980), Ind., 405 N.E.2d 530, 533. There is no doubt that the substance of the criminal recklessness instructions tendered by Johnson was not covered by other instructio......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Hall v. State, (1980) Ind., 405 N.E.2d 530; Spears v. State, (1980) Ind., 401 N.E.2d 331; Parks v. State, (1979) Ind., 389 N.E.2d 286. This basic standard of review has clearly been held as ......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...offense. This precise issue has been considered and has been decided adversely to the defendant's position. Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d Defendant also argues that even though this is......
  • Request a trial to view additional results

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