Harrison v. State

• Decision Date: 24 August 1998
• Docket Number: No. 18S00-9712-CR-687,18S00-9712-CR-687
• Citation: 699 N.E.2d 645
• Parties: Kia George HARRISON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 645

699 N.E.2d 645

Kia George HARRISON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 18S00-9712-CR-687.

Supreme Court of Indiana.

Aug. 24, 1998.

Geoffrey A. Rivers, Muncie, for Appellant.

Jeffrey A. Modisett, Attorney General, Randi E. Froug, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Justice.

A jury convicted defendant, Kia George Harrison, of murder. The trial court sentenced him to sixty years.

In this direct appeal, defendant raises the following issues: 1) Did the trial court err in admitting certain photographs of the victim? 2) Did the trial court err in admitting a prior inconsistent statement of a State's witness? 3) Did the trial court err in refusing certain instructions on self-defense? 4) Was the evidence insufficient to support the judgment? and 5) Did the trial court err in sentencing defendant to sixty years? We answer these questions "no" and affirm.

FACTS

Defendant, then seventeen years old, had given $20 to the victim, forty-one year old Raymond Pierce, so that Pierce would purchase a pack of cigarettes for defendant. On October 1, 1996, defendant and Pierce met in a parking lot, and defendant asked Pierce to return the change. Pierce replied that he did not have the money. Defendant testified that Pierce then hit him, which scared him, so defendant pulled out a .22 automatic pistol and shot Pierce. Then, defendant testified, Pierce verbally threatened him and ran away. The evidence showed that defendant chased Pierce for a short distance while shooting at him, and, when Pierce fell to the ground wounded, defendant shot him again. Defendant then fled the scene and did not report the shooting to police. The victim was unarmed. He died of five gun shot wounds, including one to the back of the neck and one to the heart, which were consistent with having been shot from behind and while on the ground. At trial, defendant admitting shooting Pierce, but claimed self-defense.

DISCUSSION

I. Admission of Photographs of the Victim.

Several photographs of the victim taken after the murder were admitted at trial. Defendant objected to their admission on grounds that their gruesome nature outweighed their probative value and that they were cumulative. The trial court overruled the objections and the photographs were shown to the jury.

Defendant concedes that relevant evidence will not be rejected merely because it is gruesome and cumulative. Photographs depicting the victim's injuries or demonstrating a witness's testimony are generally relevant, and, therefore admissible. Allen v. State, 686 N.E.2d 760, 776 (Ind.1997), reh'g denied; see also Ind. Evidence Rules 401 & 402. To exclude photographs from evidence on relevancy grounds, the defendant must show that their improper influence on the jury would outweigh their probative value to the extent that they are unduly prejudicial.

Bellmore v. State, 602 N.E.2d 111, 118 (Ind.1992); Evid. R. 403. To exclude them from evidence because they are cumulative, the defendant must show that the probative value is substantially outweighed by the needless presentation of cumulative evidence. Evid. R. 403. We review the trial court's ruling for an abuse of discretion. See Ealy v. State, 685 N.E.2d 1047, 1049-50 (Ind.1997).

One photograph was a view of the victim lying on the ground where police found him. This photograph showed his position after the shooting and some wounds, and illustrated the testimony of the police, the coroner, eyewitnesses and defendant. The matters depicted in the photograph were highly probative of defendant's self-defense claim and the State's contention that defendant shot the victim as he lay on the ground. The photograph is not particularly gruesome as it shows little blood; the primary impact on the viewer is of a man lying dead on the ground. Defendant relies on Kiefer v. State, 239 Ind. 103, 117, 153 N.E.2d 899, 905 (1958), in which we held that the trial court committed reversible error by admitting photographs which showed broad autopsy incisions and the hands of medical personnel inside the decedent's body. The photograph at issue here, however, is qualitatively different in its impact from the photographs described in Kiefer. Although the jury viewed a videotape of the scene and a police officer described it, this was the only still photograph showing the victim's body. To the extent that this photograph is cumulative at all, it is only marginally so. See Gant v. State, 694 N.E.2d 1125 (Ind. 1998). Under these circumstances, any prejudice from the photograph was outweighed by its probative value, and the trial court did not abuse its discretion in admitting it. See Bellmore, 602 N.E.2d at 118.

The other photographs were taken during the autopsy and depicted each gunshot wound. These photographs illustrated the coroner's testimony that the victim had nine bullet wounds that likely came from being shot five times, from behind and from above. The coroner was certain that the bullet wound to the victim's chest had been inflicted from above while the victim lay on the ground. Given this testimony, these photographs were highly probative of defendant's self-defense claim and of his testimony that he did not remember shooting the victim after he lay on the ground. See Isaacs v. State, 659 N.E.2d 1036, 1043 (Ind.1995), cert. denied --- U.S. ----, 117 S.Ct. 205, 136 L.Ed.2d 140 (1996). These photographs are not particularly gruesome and show the wounds as the coroner found them without any alteration. Cf. Butler v. State, 647 N.E.2d 631, 634-35 (Ind.1995) (autopsy photographs suspect if they show the body in altered condition). These photographs were not needlessly cumulative of the coroner's testimony, and helped the jury in understanding that testimony. The trial court did not abuse its discretion by admitting the autopsy photographs.

II. Admission of Witness's Prior Inconsistent Statement

Defendant argues that the trial court erred in admitting into evidence a witness's pre-trial statement to police. The State subpoenaed Tamelia Moore as a witness. On direct examination, she testified that on the night of the murder, she heard five gunshots, saw bursts of sparks or fire coming from the direction of the noise, and saw a group of people in that area run away. She claimed not to know whether defendant was one of those people.

The State impeached her on this last point when Moore admitted having previously told police that she had seen the sparks come from in front of defendant and had seen him among the people who ran after the shooting. Moore admitted having given this information to police in a written statement she signed on the night of the shooting. On redirect examination, the pre-trial statement itself was admitted over defendant's objection that the State could not impeach its own witness and that the statement was "cumulative as to her testimony." (R. at 311-15.) There was no hearsay objection and no request for a limiting instruction or admonition.

The trial court's overruling of these contemporaneous trial objections is not reversible error. First, it was not error for the

State to impeach its own witness. Evid. R. 607. Second, even if the statement itself was cumulative of the witness' testimony about the statement, we cannot say that the trial court abused its discretion in concluding that this was not a needless presentation of cumulative evidence. See Evid. R. 403. In any event, admission of the statement was harmless because the incriminating information in it was already before the jury either from the witness or defendant. See Evid. R. 103(a). To the extent that defendant objects to the admission of the statement on different grounds on appeal, those arguments are waived for failing to lodge a contemporaneous and specific objection at trial. Evid. R. 103(a)(1).

III. Defendant's Tendered Instructions on Self-Defense.

Defendant next claims the trial court erred in refusing defendant's three tendered instructions on self-defense. A trial court's decision to instruct the jury is within its sound discretion, and we review that decision for an abuse of discretion. Fields v. State, 679 N.E.2d 1315, 1322 (Ind.1997). We consider (1) whether the instruction correctly states the law, (2) whether there is evidence in the record to support the giving of the instruction, and (3) whether the substance of the tendered instruction is covered by other instructions. Id.

The trial court gave four instructions on self-defense, which collectively informed the jury that defendant had the right to defend himself against the imminent use of unlawful force, that he could use deadly force if he subjectively, but reasonably, believed that such force was necessary to prevent serious bodily injury, and that the State has the burden of disproving the defense beyond a reasonable doubt. See IND. CODE § 35-41-3-2 (1998).

Defendant argues that the trial court erred in not giving what he describes as his "more specific" tendered instructions, but our review of those tendered instructions shows that, to the extent they correctly stated the law of self-defense in Indiana, they were covered by the substance of the trial court's instruction and for that reason, the trial court did not err in refusing them.

IV. Sufficiency of the Evidence.

Defendant contends that the State did not carry its burden of rebutting his claim of self-defense. To establish a valid claim, as relevant to the evidence in this case, defendant had to show that he reasonably believed that deadly force was necessary to prevent serious bodily injury to himself. IND. CODE § 35-41-3-2 (1998); Birdsong v. State, 685 N.E.2d 42, 45 (Ind.1997). Then the burden shifted to the State, which was required to rebut the claim by showing, beyond a reasonable doubt, that defendant's use of force was not justified. Id. The State can show this, for example, with evidence that the defendant used excessive force, was committing a...