Labelle v. State

• Decision Date: 07 March 1990
• Docket Number: No. 49S00-8804-CR-373,49S00-8804-CR-373
• Citation: 550 N.E.2d 752
• Parties: David LABELLE, a/k/a David Rielly, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 752

550 N.E.2d 752

David LABELLE, a/k/a David Rielly, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8804-CR-373.

Supreme Court of Indiana.

March 7, 1990.

William L. Soards, Soards, Carroll & Fruechtenicht, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant waived his right to a jury trial and was tried to the court and found guilty of attempted murder, I.C. 35-41-5-1; I.C. 35-42-1-1, a Class A felony, and carrying a handgun without a license, I.C. 35-47-2-1; I.C. 35-47-2-23, a Class A misdemeanor. He was sentenced to twenty years on the attempted murder charge and one year on the weapons charge, the sentences to run concurrently. In this direct appeal, appellant makes two claims of error. He asserts that the trial court erroneously admitted an x-ray purportedly of the victim and that there was insufficient evidence of intent to kill to support a conviction for attempted murder.

The evidence produced at trial which tended to support the determination of guilt shows that members of the Outlaws motorcycle gang, who refer to themselves as "brothers," sometimes frequent the Beehive Tavern in Indianapolis. On February 2, 1987, appellant was a patron of the Beehive. He asked Oliphant, the bartender and co-owner of the bar, whether the Outlaws had come into the bar before, and Oliphant informed him that they had. Appellant remained at the Beehive until closing time and returned the next night. By 11:00 p.m., at least three employees and several patrons were in the bar. Three members of the Outlaws, including the victim, Allen Mayes, were there shooting pool. Sometime after 11:00, appellant threw a beer can at the stage, whereupon Oliphant asked him to leave and appellant spat in his face. Oliphant testified, "[Appellant said] that we're going to a funeral[,] to get my brothers together because we were going to a funeral.... [Appellant] told me I wasn't worth killing but a few of them--a few of the people in here were. And he proceeded to walk on out the door." Oliphant stated that the three Outlaws were standing by the bar about ten feet from the door as he followed appellant out and that they were in roughly the same place when he came back in. Two to three minutes later, a shot rang out and Mayes was struck in the neck by a bullet and fell to the floor.

Fifteen to twenty minutes after the shooting, appellant was found under a truck which was parked across the street from the Beehive. A crowd which included the victim's two companions stood outside the bar and watched as appellant was being placed under arrest, and one of the Beehive's managers testified that appellant shouted at the two men, "Scumbags, you tell your brothers the angels are on their way[.] I got your brother."

The door to the bar has a diamond-shaped window, which is taped to leave unobstructed only a two- or three-inch peephole. Looking into the bar from the outside, the peephole is approximately five feet, seven inches off the ground. Police found a bullet hole in the taped area to the right of the peephole. At the time of appellant's arrest, Officer Keers found a .22 caliber revolver on his person. Believing that the hole in the window was made by a larger bullet, Keers searched the underneath side of the truck and found a .38 caliber revolver on the transmission brace, above the approximate spot appellant's head had been when he was under the truck. Both guns were examined at the scene. The .22 had six live cartridges and the .38 had five live cartridges and one spent casing. Appellant was also tested at the scene for gunpowder residue; the test results indicated that he had recently fired a gun. The bullet was never removed from Mayes's neck, and on April 9, 1987, an x-ray was taken at Community Hospital to facilitate a comparison test conducted by a firearm examiner from the Marion County Forensic Services Agency. The examiner took a measurement and made a comparison, visually and by diomychrometer, of Mayes's x-ray and x-rays of bullets of known caliber. He testified that, based on the test results, it was his opinion that the bullet in Mayes's neck was from a .38 caliber weapon.

Appellant claims that the trial court erred in admitting the x-ray into evidence through the testimony of the victim. Appellant argues that a lay witness with no medical or scientific training cannot provide the authentication necessary to support the admission of an x-ray into evidence. An x-ray is admissible in Indiana if it is properly authenticated and if the x-ray photographer is shown to be competent. Howard v. State (1976), 264 Ind. 275, 283, 342 N.E.2d 604, 608. The issue of the x-ray technician's competency was not raised at trial and therefore was not preserved for appeal. As in Howard, however, had the question of competency been raised at trial, proof that the x-ray was taken by a regular hospital x-ray technician would have been adequate to establish competency. Id. at 284, 342 N.E.2d at 609.

The foundation necessary to authenticate a photograph such that it may be admitted into evidence is testimony by a witness that the picture is a true and accurate representation of the evidence portrayed. Shelton v. State (1986), Ind., 490 N.E.2d 738, 742. The admission of an x-ray, like other photographic evidence, is within the trial court's discretion and will be reversed only on a showing of abuse of discretion. Id.

Most x-rays are authenticated through a physician or an x-ray technician who testifies that the x-ray being offered into evidence truly and accurately depicts the internal structure of a particular...