Hightower v. State, 879S208

• Citation: 422 N.E.2d 1194
• Decision Date: 08 July 1981
• Docket Number: No. 879S208,879S208
• Parties: Dennis HIGHTOWER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1194

422 N.E.2d 1194

Dennis HIGHTOWER, Appellant, v. STATE of Indiana, Appellee.

No. 879S208.

Supreme Court of Indiana.

July 8, 1981.

Harriette Bailey Conn, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with murder. He was convicted by a jury of voluntary manslaughter and sentenced to twenty years imprisonment.

The body of the victim, a fourteen year old female, was found in a rural cornfield. She had suffered a total of fifteen .22 calibre rifle gunshot wounds, slashes to her back inflicted with a knife or similar instrument and injuries that may have been sustained by being run over by a vehicle. The victim's anus and vagina were bruised. Laboratory examinations revealed the presence of sperm in the vagina. A chrome strip from a vehicle and paper napkins were found at the scene. Information from an auto repair shop indicated that the strip was from a green sports truck.

The appellant was stopped as he exited a local liquor store. His vehicle, a green Ranchero, had no chrome stripping. One strip was found in the bed of the truck. The strip retrieved from the scene fit appellant's vehicle. A napkin adhered to the back bumper of the truck. Blood and hair were discovered under the Ranchero. A .22 calibre rifle was found behind the front seat. Three witnesses testified that they had seen the defendant and the decedent together between the hours of 10:30 and 11:00 p.m.

The appellant first claims that the trial court erred by admitting into evidence over defense objections photographic slides of the decedent. He argues the pictures were gruesome in light of the manner of death, served to inflame the minds of the jurors, thereby prejudicing him.

The standard to determine the admissibility of photographs of a gruesome nature was set forth in Brandon v. State, (1978) 268 Ind. 150, 374 N.E.2d 504. In Brandon, this Court stated at 374 N.E.2d p. 507:

"Trial courts may exercise wide discretion in determining the admissibility of photographic evidence. The test to be applied is whether or not the photographs are relevant to any material issue in the case, with the issue of relevance determined by whether or not the photographs evidence any thing that a witness would be permitted to testify to if identified and verified by the witness. Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482; Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645.

"Without a clear showing of prejudicial imbalance between relevance on one hand and the tendency to appeal to passion and prejudice on the other, the trial court's determination will not be disturbed."

A pathologist testified as to the significance of each slide. The pathologist was rightfully permitted to testify about the results of the pre-autopsy examination. He verified the slides were taken under his auspices. The photographs aided in proof of the victim's identity, the fact and cause of death and the probable distance from which the shots had been fired. They further depicted the brutality of the killing. The photographs were, therefore, relevant to the considerations before the jury. Under the standard set forth in Brandon, supra, we hold the slides were relevant and properly admitted.

Appellant next claims the trial court erred in refusing to give defendant's tendered final instructions numbered 15 and 18.

Defendant's tendered instruction number 15 reads:

"You are instructed that in a criminal case, probabilities are not sufficient to warrant a conviction nor is it sufficient that the mere weight or preponderance of the evidence is in favor of the guilt of the Defendant nor is it sufficient that it is possible or probable that the Defendant is guilty of the crime charged, nor is it sufficient that upon the doctrine of chance it is more probable that the Defendant is guilty. To warrant a conviction the State must prove the case so clearly and so conclusively that each and every juror must be satisfied of the guilt of the Defendant beyond a reasonable doubt; otherwise, under the law, there can be no conviction of the Defendant in this case."

Defendant's tendered instruction number 18 reads:

"You are instructed that no amount of suspicion, no matter of the nature, will itself constitute evidence and consequently suspicion, no matter in what abundance, will not justify a verdict of guilty."

Appellant argues that...