Inman v. State

• Decision Date: 21 December 1978
• Docket Number: No. 677S469,677S469
• Citation: 383 N.E.2d 820,270 Ind. 130
• Parties: Walter Frank INMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 820

383 N.E.2d 820

270 Ind. 130

Walter Frank INMAN, Appellant, v. STATE of Indiana, Appellee.

No. 677S469.

Supreme Court of Indiana.

Dec. 21, 1978.

Jack G. Hittle, J. Michael Antrim, Chruch Roberts & Beerbower, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of second degree murder and was sentenced to a term of 15 to 25 years imprisonment.

On the evening of July 30, 1976, appellant, his nephew Mark Inman, the decedent Charles Hoffman, and one Carol Biggs, went to a movie near Carmel. After a series of events following the movie, including the drinking of whiskey, the group went to the home of one Lee Turner. Mrs. Turner stated that she awoke that morning and saw appellant standing in front of her closet where she kept a loaded pistol. Appellant then left the room, woke his companions, and showed his nephew a gun, saying "Look what I got." The four walked outside to the car. Appellant then yelled "Hey Chuck" to the decedent and immediately shot him in the chest. Hoffman died shortly afterward from the gunshot wound.

Appellant claims the State did not produce sufficient evidence to prove that he maliciously and purposely killed Hoffman. Malice and purpose may be inferred from the use of a deadly weapon in a manner likely to cause death, McDaniel v. State (1978) Ind., 375 N.E.2d 228, and from the facts and circumstances surrounding a shooting. Aubrey v. State (1974), 261 Ind. 531, 307 N.E.2d 67. The facts above recited, together with testimony of a ballistics expert that the gun could not have discharged accidentally, are more than sufficient to establish malice and purpose.

Next, appellant argues it was error to permit the introduction of three allegedly prejudicial pictures which were only cumulative and repetitious of other photographs placed in evidence. The admission of photographs in evidence is within the sound discretion of the trial court and will not be reversed unless an abuse of discretion is shown. Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745. Further, photographs of the scene of the crime will be admitted even though they may be, to some extent, repetitious and cumulative so long as they are competent and relevant aids to the jury in orienting themselves and in understanding the evidence. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482. The photographs in the case at bar, while somewhat repetitious, are relevant to assist the jury in understanding the incident. We can find no abuse of discretion on the part of the trial court.

Appellant next contends the trial court erred in not requiring the taped statements of two witnesses to be played to the jury prior to the time they testified. He argues that had they been played, he would have been entitled to an instruction limiting the in-court testimony of these witnesses to impeachment of their taped statements. This contention has no merit. First, transcripts of the tapes are not in the record and therefore we cannot consider the content of the tapes. Hill v. State (1977), Ind., 370 N.E.2d 889. Second, the State introduced the tapes and it was entitled to decide when in the course of presenting its case the tapes would be played to the jury. The tapes in fact were played at the close of the State's case. Third, even had the tapes been played prior to the testimony of the witnesses, there is no basis for limiting the in-court testimony to impeachment of the taped statement. We therefore hold the trial court did not err in refusing to order the State to play the tapes to the jury prior to calling these two witnesses to the stand.

Appellant claims the trial court erred in permitting a gun to be admitted in evidence because a proper chain of custody had not been established. Although there appears in the transcript some uncertainty as to the chain of custody of the gun, there is no doubt as to its authenticity. Two police officers identified the gun as the weapon recovered at the scene of the shooting. At the time of the investigation at the Turner residence, both officers had recorded the serial number of the gun in their notes, and thereby were able to identify it at trial. Under our holding in Wilson v. State (1975), 263 Ind. 469, 333 N.E.2d 755, non-fungible items do not require the high degree of scrutiny regarding chain of custody as do fungible items. There is no reason in law or logic to doubt the authenticity of this gun or to refuse it in evidence on the basis of an improper chain of custody. The trial court did not err in admitting the gun.

Appellant next claims in a series of arguments that his cross-examination of three witnesses for the State was unduly curtailed and now requires reversal. The scope and extent of cross-examination lies within the sound discretion of the trial court and will be reversed only when an abuse of discretion is shown. Ringham v. State (1974), 261 Ind. 628, 308 N.E.2d 863. Although the right to cross-examine a witness is fundamental to due process and the scope of cross-examination of a State's witness in a criminal case may be broad to insure a full and fair exposure of all relevant facts, the rules of evidence cannot be suspended. To allow the cross-examiner in a criminal case carte blanche would inundate trial courts with irrelevant matter confusing judges and juries, and would cause undue prolongation of the trial. Logston v. State (1977), Ind., 363 N.E.2d 975, 976.

The first alleged error occurred during cross-examination of State's witness Judith Turner. When defense counsel asked whether she had ever told anyone her thoughts on the shooting, the court sustained an objection on the ground that it was conclusionary and without foundation. Presumably this was an attempt to lay a foundation for impeachment. However, Turner had not yet been asked, and never was asked, for her thoughts or opinion on any aspect of the case. Hence, there was no testimony to impeach and the question was irrelevant at the time. Anderson v. State (1977), Ind., 370 N.E.2d 318.

Second, witness Carol Biggs was asked whether she had ever told anyone in the Hamilton County prosecutor's office that she thought the shooting was an accident. An objection by the State on the ground of hearsay was sustained. This was not objectionable hearsay since the out-of-court declarant was not another person but the witness herself. See Jethroe v. State (1974), 262 Ind. 505, 319 N.E.2d 133. However, the question called for a conclusion of the witness and thus was objectionable under Fletcher v. State (1961), 241 Ind. 409, 172 N.E.2d 853. We therefore can find no error in the trial court's ultimate decision to sustain the objection.

Third, defense counsel asked both Carol Biggs and Mark Inman whether, from their observations, they would call this shooting an accident. Objections to both questions on the grounds that they called for conclusions by the witnesses were properly sustained. Fletcher v. State, supra.

Appellant next contends the trial court erred in permitting the jury instructions to be taken to the jury room. This error was harmless because the crucial requirement of first reading the instructions in open court in the presence of the parties and their attorneys was met. Jameison v. State (1978), Ind., 377 N.E.2d 404.

Appellant further claims the trial court erred in not reducing all its instructions to writing. He states in his brief that the trial court gave all the instructions to the jury orally, then presented the jury the written instructions for use in the jury room, telling them to read the instructions in their entirety. He concedes this alleged oral statement does not appear in the transcript. Yet he still argues that it qualified and explained one of the court's final instructions, thereby violating IC § 35-1-35-1 (Burns' 1975). However, since the alleged statement is not in the record, we cannot consider it. Hill v. State, supra. But even assuming Arguendo that the statement was made, it had essentially the same meaning as the court's final instruction number 1 and does not qualify or modify that instruction in any way. We find no error in this contention.

Appellant next claims the trial court erred in giving several instructions and in refusing several instructions. Instruction 14 gave the statutory definitions of first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. Although appellant argues there was no evidence to support the elements of these first three crimes, the evidence heretofore recited is more than sufficient to justify the giving of this instruction.

Appellant next contends that Instruction 19 implied to the jury that the defendant has a duty to prove something. The contested portion of that instruction is as follows:

Whenever it is shown that a homicide is unlawfully and purposely committed, with a deliberate intent, malice may be inferred in the absence of any explanations or extenuating circumstances.

Appellant argues that Abel v. State (1975), Ind.App., 333 N.E.2d 848 dictates a reversal of his conviction. However, Abel was decided not upon the basis that the instruction placed the burden upon the defendant, but that it constituted an impermissible comment upon the defendant's failure to testify. Nor does Parker v. State (1894), 136 Ind. 284, 35 N.E. 1105 support appellant's position. There, the instruction explicitly stated that "the failure of either (of the) defendant(s) to account for his whereabouts . . . may be properly considered" by the jury. The Court in that case held that this instruction constituted reversible error in that the failure of the defendants to explain their whereabouts could not properly be considered as a circumstance tending to prove guilt.

The instruction in the case at bar, however, is wholly different from that in Parker. This instruction concerns the element of malice and...