Houser v. State, 57S00-0310-CR-433.

• Decision Date: 10 March 2005
• Docket Number: No. 57S00-0310-CR-433.,57S00-0310-CR-433.
• Citation: 823 N.E.2d 693
• Parties: Donald Earl HOUSER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

823 N.E.2d 693

Donald Earl HOUSER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 57S00-0310-CR-433.

Supreme Court of Indiana.

March 10, 2005.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SULLIVAN, Justice.

Defendant Donald Earl Houser was convicted of the murder of an elderly woman during the course of burglarizing her home. He challenges his convictions on grounds of trial court error in the admission of certain evidence, the constitutionality of the statute under which he was sentenced, and the severity of the sentence itself. We affirm the convictions and sentences. Any error in the admission of evidence was harmless given the evidence of Houser's guilt; we have previously addressed and rejected the constitutional claims; and the sentence here is appropriate given the relative weight of the charged aggravating circumstance and the mitigating circumstances.

Background

The evidence most favorable to the judgment indicates that in September, 1996, Defendant Donald Houser, and his girlfriend, Angela Stone, broke into the home of 86-year-old Julia Gaerte in rural Noble County. Before entering Gaerte's home, Houser had cut the phone line. He entered the home through a back window, which he had broken to gain entry. Houser went through the home taking a television, a VCR, and silverware, as well as various credit cards and checks. At some point during this episode, he suffocated Gaerte by placing a pillow over her face. Her body was found the next day by her daughter-in-law.

Houser eluded apprehension for these crimes for four years. On October 26, 2000, Angela Stone implicated Houser in the burglary and murder during police questioning with Indiana State Police Detective Mark R. Heffelfinger. The same day, police recovered silverware taken from Gaerte's home after executing a search warrant at Houser's mother's home in LaGrange County; Houser had given the silverware to his mother as a Christmas gift. The next day, Detective Heffelfinger questioned Houser who had been brought to Noble County from Otter Creek Correctional Facility in Kentucky where he was serving a sentence for burglary. During the interrogation, Houser confessed that he had burglarized Gaerte's home and killed her by suffocating her with a pillow. Additional factual information will be provided infra as necessary.¹ Houser was charged with the knowing or intentional murder of Gaerte² and burglary causing death.³ The State also sought a sentence of life imprisonment without possibility of parole. As the aggravating circumstance justifying life imprisonment without parole, the State charged that Houser had intentionally killed Gaerte while committing the crime of burglary.⁴

During Houser's jury trial, he took the stand in his own behalf. On November 12, 2002, the jury returned verdicts of guilty on both counts.

The next day, the jury reconvened for the penalty phase of the trial during which it received evidence with respect to the charged aggravating circumstance and mitigating circumstances. Its verdict utilized three forms: a unanimous finding that the State had proved the existence of the charged aggravating circumstance beyond a reasonable doubt; a unanimous finding that the charged aggravating circumstance outweighed any mitigating circumstances; and a unanimous recommendation that Houser be sentenced to life imprisonment without possibility of parole.

On February 4, 2003, the trial court sentenced Houser to life imprisonment without possibility of parole for murder and 20 years in prison for burglary.

Discussion

I

Houser contends that the trial court erroneously allowed the jury to hear testimony that he was incarcerated in Kentucky at the time he faced police questioning regarding Gaerte's death. He argues that this testimony's sole purpose "was to establish that Houser's character was bad, and that he was predisposed to committing burglaries" and, as such, violated Indiana Rule of Evidence 404(b).⁵

As mentioned supra, Houser took the stand in his own defense. In his brief to this Court, Houser tells us that during his direct examination, he testified that he was currently living with his mother in LaGrange County and that in October, 2000, he was living in Kentucky when he received word that Detective Heffelfinger wanted to question him concerning Gaerte's death; that when he learned this, he came back to Indiana to meet with Heffelfinger. Houser goes on to tell us that the State then successfully sought the trial court's permission to reveal to the jury that he had been incarcerated in Kentucky, contending that Houser had "opened the door" to presenting this information. Houser argues that his statement about residing in Kentucky was accurate and in no way left the jury with a false or misleading impression of the facts.

Were that all there was to it, we might be inclined to agree with Houser. But in addition to that part of Houser's testimony that he includes in his brief, Houser also testified on direct examination that he did not remember his interview with Heffelfinger in which he confessed to Gaerte's murder because he had ingested LSD prior to being questioned; that the LSD he took made him lethargic, confused, and unable to fully appreciate his actions; that it was common to be able to obtain illegal drugs while incarcerated; and that he wanted to call his mother prior to the interview to tell her he was no longer in Kentucky but was not allowed to make the call until the interview was completed. Once Houser himself volunteered that he had taken LSD while incarcerated a short time before his interview with Heffelfinger, the State was entitled to explore further the circumstances of Houser's admitted procurement of LSD and incarceration in Kentucky. We find no abuse of discretion in the trial court's allowing the State to pursue this line of questioning.

II

A

While on the witness stand, Detective Heffelfinger testified that "[d]uring his first interview with [Angela] Stone ... [he was told] that Houser listened frequently to the song "Night Prowler" by AC/DC."⁶ Appellant's App. 285. The State then moved to have the lyrics of the song admitted into evidence over Defendant's objection to their relevance. The State responded that the lyrics were relevant to the element of Houser's intent in committing burglary and murder. The trial court overruled Houser's objection and allowed the text of the song's lyrics into evidence as State's Exhibit No. 43.

"Night Prowler" describes an individual who sleeps during the day and prowls at night, who "break[s] down your door ... [and] make[s] a mess of you." State's Ex. No. 43. Angela Stone, when asked about the content of the lyrics of "Night Prowler," testified that the song was about "[s]neaking around and, you know, getting in people's stuff, being sneaky." Tr. at 439. No objection was raised to her testimony, which preceded the admission of the challenged song lyrics.

"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ind. Evidence Rule 401. Evidence that is not relevant is not admissible. Evid. R. 402. As a general proposition, we do not believe there is a correlation between an individual's enjoyment of a particular piece of music and the individual's behavior.⁷ But the test of relevance requires only that the evidence have "any tendency" to make the existence of any fact of consequence more probable or less probable than it would be without the evidence. We can certainly envision circumstances where that would be the case. For example, see Bryant v. State, 802 N.E.2d 486, 498 (Ind.Ct.App.2004) trans. denied, where lyrics from two rap songs written by the defendant were deemed relevant as an indication of defendant's intent regarding victim's murder.

The more consequential determination when confronted with a challenge as to the admissibility of lyrics to a song written or favored by a defendant is whether the evidence is offered to prove the character of the defendant in violation of Evidence Rule 404(b) or whether the evidence's probative value is substantially outweighed by the dangers enumerated in Evidence Rule 403. We do not face Rule 403 or 404 challenges in this case, however, because Houser did not object to the admission of the "Night Prowler" lyrics on these grounds at trial. A defendant may not object on one ground at trial and raise another on appeal; any such claim is waived.⁸Jackson v. State, 697 N.E.2d 53, 54 (Ind.1998) (citing Bradford v. State, 675 N.E.2d 296, 302-03 (Ind.1996)).

In any event, evidence admitted in violation of Evidence Rules 402, 403, or 404 will not require a conviction to be reversed "if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect a party's substantial rights." Bassett v. State, 795 N.E.2d 1050, 1054 (Ind. 2003) (citing Ind. Trial Rule 61; Stewart v. State, 754 N.E.2d 492 (Ind.2001)). When the evidence of the lyrics is viewed in light of the evidence pointing to Houser's guilt in this case, it is relegated to the status of harmless error. Houser admitted during police questioning to burglarizing the victim's home and suffocating her with a pillow, and his blood was found on a curtain where he gained entrance to the victim's house. We conclude that the probable impact of the song lyrics was sufficiently minor so as not to affect Houser's substantial rights.

B

We deal similarly with Houser's contention that it was error for the trial court to permit Angela Stone to testify regarding statements he made to her about killing.

Over defense coun...