Howard v. State

• Decision Date: 04 March 1976
• Docket Number: No. 1174S226,1174S226
• Parties: Dallas Wayne HOWARD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 604

342 N.E.2d 604

264 Ind. 275

Dallas Wayne HOWARD, Appellant, v. STATE of Indiana, Appellee.

No. 1174S226.

Supreme Court of Indiana.

March 4, 1976.

Barrie C. Tremper, Allen County Public Defender, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Dallas Wayne Howard, was charged by information with one count of first degree muder (murder in the perpetration of a robbery), Ind.Code § 35--13--4--1, Burns § 10--3401 (Supp.1975), and one count of second degree murder, Ind.Code § 35--1--54--1, Burns § 10--3404 (Supp.1975). In a trial by jury, appellant was found guilty of first degree murder and sentenced to life imprisonment. He filed a motion to correct error which was denied.

On appeal, appellant raises seven issues: (1) the sufficiency of the evidence to support the jury's verdict; (2) to (5) the admissibility of six photographs; (6) the admissibility of an X-ray; and (7) the admissibility of a hypothetical question and the medical opinion expressed in answer to it.

We will consider first the allegation that the evidence was insufficient to prove first degree murder. Appellant makes no arguments in this section of his brief and, at no point in his brief, sets out the circumstances of the crime. The State has set out the circumstances and related them to the elements of felony murder. We also have read the record of the evidence introduced at trial, so that this question could be considered now, rather than waiting for a post-conviction petition.

The felony murder statute reads in relevant part:

'Whoever kills a human being . . . while perpetrating or attempting to perpetrate (a) robbery . . . is guilty of murder in the first degree.' Ind.Code § 35--13--4--1, Burns § 10--3401 (Supp.1975).

The robbery statute reads in relevant part:

'Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery.' Ind.Code § 35--13--4--6, Burns § 10--4101 (1956).

Considering these statutes together, the State had to prove beyond a reasonable doubt that: (1) a human being (2) had been killed (3) by appellant (4) while he was taking or attempting to take (5) from a person (6) an article of value (7) by violence or putting in fear.

There was substantial evidence of probative value to permit the jury to find that each of these elements were present in this crime and to identify appellant. On November 10, 1973, at 2:00 p.m., the manager of a liquor store was shot. He died at 4:00 p.m., from internal bleeding as a result of that gunshot wound. The person who shot the manager had pulled out a small gun and demanded the money in the cash register. He said, 'This is a stick-up. Hand me that money over there.' The store manager handed him some bills, which he took. When he asked for the rest of the money, the manager told him to come around the counter and get it. When the robber walked around the counter, the manager hit him and knocked him off balance. As he grabbed him, the robber shot him just below the breastbone in the center of his body. The two continued to struggle from behind the counter to the front door, where they were observed struggling just before the manager collapsed. Exactly how much money appellant succeeded in taking is uncertain, but the amount still missing after citizens collected $205.00 in bills, which were on the pavement in front of the store, was.$184.09.

As to the identity of the robber, none of the eyewitnesses to the crime could positively identify him. Several described him as wearing blue denim pants and a blue denim shirt. One described his very small mustache. Several described the vehicle which he got into after leaving the liquor store as purple, as a Ford Econoline Van, and as having a small trailer behind it. Two women followed the van in their car and copied down the last three digits of the license plate. This report was put on the police radio, and a policeman testified that the digits were either 46T or 47T.

Appellant arrived at a friend's house a little while after the shooting. He told her that he had held up a liquor store in Fort Wayne and had shot a man. He showered, shaved off his mustache, and changed his clothes at her house and put the clothes he had been wearing when he arrived there and the small gun he had shown her in a paper sack. He asked her to help him hide his van. She called a frined, and appellant and a few other people drove to an abandoned gravel pit near the other person's house. Appellant put the paper sack between the seats in the front, and his friend put it behind the driver's seat. He locked the van and left it at the pit.

The friend then called the police when appellant was gone. She told them where he was and where the van was. The buttons on the denim shirt appellant had put in the paper sack matched two buttons found at the liquor store. Two buttons were missing off the front of the shirt. Light blue denim pants were in the sack also. The bullet taken from the manager's body was compared microscopically with the bullets shot from both of the barrels of the gun found in the paper sack. The comparison showed that the bullet which killed the manager was shot from barrel number two. The gun in the sack was registered to appellant and had been purchased fifteen days before the robberyhomicide. The van was a purple Ford with license number 69547T. Appellant had $103.00 in his wallet when he was taken to the county jail. Some of the bills had blood on them. We conclude that the evidence concerning each of the elements of felony murder (robbery) and the evidence identifying appellant as the person who robbed and killed the store manager was sufficient to permit the jury's verdict.

We consider next the admissibility of the six photographs. Appellant objects to Exhibits Nos. 6 and 7, black and white photographs of the front exterior of the Variety Liquor Store, in which the homicide occurred. Appellant's trial objection was that they were irrelevant and cumulative. We would disagree. A photograph of the exterior of the store would aid the jury in visualizing what had been or would be described concerning the path the victim and appellant took to the door of the store, where certain evidence was found after the homicide, and how eyewitnesses would have viewed the scene from the street.

Concerning the allegation that the photographs were cumulative, appellant elaborates in his brief. He points to the following photographs which had been introduced earlier: a floor plan of the interior and exterior of the store, a close-up of the front door with the window glass broken out, a close-up of a corner of the doormat with a bracelet on it, a close-up of a bullet on the concrete outside the store, and a close-up of a button on the concrete. None of these photographs shows the exterior of the store as it would appear from the street or in the parking lot. The photographs of the front of the store are neither irrelevant nor cumulative.

Exhibit No. 43 is a color photograph of a brown paper sack surrounded by many other items, which was identified as the paper sack which the police found behind the driver's seat in appellant's van and which contained clothing and a gun. Appellant argues that this photograph, also, is irrelevant and cumulative. The photograph shows the sack in its original location behind the driver's seat of appellant's locked van, in a gravel pit where witnesses said he had hidden it. The sack contained incriminating evidence of appellant's guilt. The photograph showing its location was certainly relevant.

In his brief, appellant explains why he believes the photograph was cumulative. Other photographs of the clothing and of the gun had been introduced earlier. Clearly those photographs did not make cumulative a photograph of the sack which contained the items and which showed where they were found.

Exhibits Nos. 44 and 45 were color photographs of the interior of the front door on the driver's side and of the dashboard and steering wheel of appellant's van. Both photographs show blood stains. Appellant argues that these photographs also were cumulative. At trial, he objected because they were irrelevant. The blood stains make it more probable that appellant did have blood on his hands or clothes for some reason. Bloodstains near the driver's seat also support the eyewitness testimony that appellant left the scene of the shooting in his van. The photographs are relevant. Appellant does not point to any other similar photographs previously introduced, so that these photographs are not cumulative.

Exhibit No. 46 is a color photograph of the shirt found in the paper sack in appellant's van with two buttons missing and of two buttons found at the crime scene. The photograph shows...