Kilpatrick v. State, 49S00-0003-CR-185.

• Citation: 746 N.E.2d 52
• Decision Date: 11 April 2001
• Docket Number: No. 49S00-0003-CR-185.,49S00-0003-CR-185.
• Parties: Steven L. KILPATRICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Supreme Court of Indiana

746 N.E.2d 52

Steven L. KILPATRICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49S00-0003-CR-185.

Supreme Court of Indiana.

April 11, 2001.

Sarah L. Nagy, Indianapolis, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. RUCKER, Justice.

After a trial by jury Steven L. Kilpatrick was convicted of murder, attempted robbery as a Class A felony, aggravated battery as a Class B felony, and criminal gang activity as a Class D felony for his role in the stabbing death of Edward Crafter. In this direct appeal Kilpatrick raises twelve issues for our review which we consolidate, reorder, and rephrase as follows: (1) did the trial court err by admitting certain exhibits into evidence, (2) did the trial court err in giving certain jury instructions, (3) was Kilpatrick denied his right to confront witnesses when his co-defendant moved for a directed verdict arguing that Kilpatrick inflicted the fatal injury, (4) do Kilpatrick's convictions violate the Double Jeopardy Clause of the Indiana Constitution, (5) is the evidence sufficient to sustain his convictions, and (6) was Kilpatrick properly sentenced. We reverse Kilpatrick's conviction for criminal gang activity on sufficiency of the evidence grounds. In all other respects, we affirm.

Facts

The facts most favorable to the verdict show that in the evening hours of January 14, 1999, a group of men attacked and beat Edward Crafter. His body was found in a field the following morning. At least four of the men were charged in connection with Crafter's death, one of whom was Tommy Thompson. In exchange for his testimony, the State dismissed charges against Thompson for murder, robbery, and criminal gang activity and allowed him to plead guilty to aggravated battery. At trial, Thompson downplayed his own involvement in Crafter's death and instead blamed Kilpatrick and another accomplice, Craig Ferrell, who was tried along with Kilpatrick as a co-defendant.¹ Thompson testified, for example, that he observed Kilpatrick strike Crafter in the head with a chunk of ice and that as Crafter lay on the ground Ferrell and Kilpatrick searched Crafter's pockets. He also testified that sometime thereafter he observed Ferrell and Kilpatrick dragging Crafter through the street; that Kilpatrick stabbed Crafter multiple times in the neck and that Ferrell stabbed him in the chest; and that both Ferrell and Kilpatrick dragged Crafter's body into some bushes. Another witness also testified that she observed Kilpatrick strike Crafter in the head with a large chunk of ice and that Kilpatrick searched Crafter's pockets as he lay on the ground. An autopsy revealed that in addition to abrasions and contusions to his face, Crafter suffered an injury to the back of his head consistent with being struck with a large block of ice. The autopsy also revealed that Crafter died as a result of multiple stab wounds. A jury convicted Kilpatrick of murder, attempted robbery, aggravated battery, and criminal gang activity. The trial court sentenced him to an aggregate term of 110 years imprisonment.² This appeal followed. Additional facts are set forth below where relevant.

Discussion

I. Admission of Exhibits

Kilpatrick contends the trial court erred by admitting certain exhibits into evidence. He first complains about State's Exhibit 39, a photograph of the victim taken prior to the autopsy showing multiple stab wounds and a great amount of blood. According to Kilpatrick, the photograph is gruesome, cumulative of other photographs introduced into evidence, and served no purpose other than to inflame the passions of the jury. We review the trial court's admission of photographic evidence for an abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1028 (Ind.1999). Photographs that depict a victim's injuries are generally relevant and thus admissible. Harrison v. State, 699 N.E.2d 645, 647 (Ind.1998). The relevancy requirement also can be met if the photographs demonstrate or illustrate a witness's testimony. Id. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." Ind.Evidence Rule 403; Wallace v. State, 725 N.E.2d 837, 839 (Ind. 2000).

The photograph here was admitted into evidence after the pathologist had explained the nature of Crafter's injury, namely multiple stab wounds, which was accompanied by significant bleeding, resulting in death. Because the photograph illustrated the witness's testimony, the relevancy requirement for its admission was properly met. As for alleged prejudicial impact, we do not agree the photograph is particularly gruesome. Indeed, because the photograph was taken before the pathologist actually began his internal examination, it shows no incisions and does not portray the gruesome spectacle this Court has previously condemned. See, e.g., Turben v. State, 726 N.E.2d 1245, 1247 (Ind. 2000) (deeming an autopsy photograph of gloved hands manipulating a bloody mass with a probe so gruesome as to be inadmissible); Kiefer v. State, 239 Ind. 103, 112, 153 N.E.2d 899, 902 (1958), (deeming photographs so "gruesome and shocking" as to be inadmissible), reh'g denied. It is true that photographs of a deceased victim during and after an autopsy is performed may be held inadmissible on the ground that they serve no purpose other than to arouse the emotions of the jury. Loy v. State, 436 N.E.2d 1125, 1128 (Ind.1982). However, this Court has found photographs showing the deceased victim before the pathologist has made incisions to be admissible even when they are gruesome or gory. Id. That is so because such photographs allow the jury to see the wounds or trauma inflicted upon the victim, and they are often accompanied by the testimony of the pathologist about the cause of death. Id. Here, the pathologist testified about the cause of death and the photograph allowed the jury to see the wounds and to place the pathologist's testimony in context. The probative value of the photograph outweighs any prejudicial impact. Concerning Kilpatrick's argument that the photograph was cumulative, we observe that relevant evidence need not be excluded simply because it is cumulative. Wagner v. State, 474 N.E.2d 476, 490 (Ind. 1985). The trial court did not err by allowing the photograph into evidence.

Kilpatrick also complains about the introduction of photographs taken of him at the time of arrest showing several tattoos on his arms and chest. A detective assigned to the Metro Gang Task Force testified that the tattoos were the symbols of a street gang known as the Vice Lords. Kilpatrick argues that even if relevant to the charge of criminal gang activity, the photographs' prejudicial impact outweighed their probative value. Kilpatrick is mistaken. However, as explained in greater detail elsewhere in this opinion, we reverse his conviction for criminal gang activity. Therefore, we decline to address further the propriety of the trial court admitting the photographs into evidence.

Finally, Kilpatrick complains the trial court erred by admitting into evidence his check-cashing card and photo ID. Both items were recovered from the home of Yolanda Coffee; the location where the fight first erupted between Crafter and Kilpatrick. He claims the exhibits were not relevant and that the State failed to lay a proper foundation for their introduction into evidence. A proper foundation for the introduction of physical evidence is laid if a witness is able to identify the item and the item is relevant to the disposition of the case. Bell v. State, 610 N.E.2d 229, 233 (Ind.1993). Here, although Coffee did not discover the items herself, a relative discovered them between the pillows of a couch in Coffee's home, Coffee was present when the items were found, she is acquainted with Kilpatrick, and she was able to identify the items. R. at 294-96.

As for relevancy, relevant evidence is "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." Evid.R. 401. The record shows that prior to trial, Kilpatrick filed a notice of alibi contending that he was home on the night of the stabbing. R. at 92. The State contends the items were thus relevant to show Kilpatrick's presence at the home of the witness on the night of the crime. The problem however is that the witness discovered the disputed items some five months after the fatal stabbing and testified that Kilpatrick had visited her home "quite a few" times. R. at 287, 295. And there was no evidence presented that the last time he was present at her home was on the night in question. At best, Kilpatrick's photo ID and check-cashing card are only marginally relevant to the question of whether Kilpatrick was present at or near the crime scene when Crafter was killed. Even so, Kilpatrick was not harmed by the admission of the exhibits because a number of witnesses placed Kilpatrick at the scene on the night of the murder. Any error in admitting evidence will be found harmless where evidence is merely cumulative. Borders v. State, 688 N.E.2d 874, 878 (Ind. 1997).

II. Jury Instructions

Kilpatrick's complaint about jury instructions is somewhat attenuated. On the one hand, he complains that the trial court's reasonable doubt instruction, sanctioned by this Court in Winegeart, is erroneous. See Winegeart v. State, 665 N.E.2d 893 (Ind.1996)

. He acknowledges that he did not object to the instruction but attempts to avoid waiver by arguing fundamental error. He also invites this Court to revisit Winegeart. On the other hand, he argues he is not seeking reversal based on the trial court giving the Winegeart reasonable doubt instruction but "seeks [ ] reversal based upon the six defective instructions to which were objected by...