Maiden v. State
| Citation | 477 N.E.2d 275 |
| Decision Date | 07 May 1985 |
| Docket Number | No. 483S153,483S153 |
| Parties | Franklin Paul MAIDEN, Sr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
Terrance W. Richmond, Public Defender, Richmond, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Following a trial by jury, Defendant (Appellant) was convicted of voluntary manslaughter, a class B felony, Ind.Code Sec. 35-42-1-3 (Burns 1979) and was sentenced to sixteen (16) years imprisonment. His direct appeal presents five (5) issues for our review, as follows:
(1) Whether the trial court erred in admitting into evidence an incriminating statement made by him;
(2) Whether the trial court erred in admitting into evidence State's exhibits 11 and 12, photographs of the decedent;
(3) Whether the trial court erred in allowing two of the State's witnesses to testify concerning other acts of violence committed upon the decedent by the Defendant and in allowing one witness to testify concerning acts of violence upon her by the Defendant;
(4) Whether the trial court erred in refusing to give Defendant's tendered final instruction No. 4 which would have informed the jury that reckless homicide is a lesser included offense of murder;
(5) Whether the evidence was sufficient to sustain the conviction.
The record discloses that at approximately 6:20 p.m. on January 20, 1982, police and an ambulance were dispatched to Defendant's home in Richmond, Indiana. Upon arrival, the emergency medical technician and police officers observed a four year old male lying face down on the floor in a pool of vomit. A medical technician immediately began resuscitative procedures, but these efforts were to no avail. The child was pronounced dead on arrival at Reid Memorial Hospital one-half hour later. Dr. Olin Wiland conducted an autopsy and determined that death had been caused by complications from a lacerated pancreas. It was Dr. Wiland's opinion that the injury had been caused by a severe blow to the child's abdomen within six (6) to thirty-six (36) hours prior to his death. In addition, Wiland testified that the child's body bore fifty-eight (58) contusions.
Police investigated the child's death by interviewing several persons, including the Defendant. In a statement given to police officers, Defendant admitted that he had hit his son in the abdomen with his fist and that the child had subsequently become sick. He was then placed under arrest.
Defendant argues that the trial court erred in admitting into evidence a tape recorded inculpatory statement which he had made to police. We do not address his argument on this issue, however. Prior to trial, Defendant filed a motion to suppress the tape recorded statement on the grounds that it had been illegally obtained in violation of his rights under the Fifth and Sixth Amendments of the Constitution. His motion to suppress was denied. At trial, Officer Denzil Williams summarized, without a meritorious objection, 1 the Defendant's confession. The tape recording was then admitted into evidence, over Defendant's additional objections, and was played for the jury. Assuming, arguendo, that the tape recorded statement should have been suppressed, its admission into evidence was, nevertheless, harmless inasmuch as Williams had already testified without creditable objection as to its contents. "Error in the admission of evidence In the interest of conserving judicial time and energy, we decline to treat the technical merits of Defendant's arguments inasmuch as various and differing grounds for his contentions have been presented by his motion to suppress, his objections at trial, his motion to correct errors, his statement of issues in his brief, and the argument section of his brief. In his brief, he argues for the first time that the statement should have been suppressed because it was the product of an illegal detention in violation of the Fourth Amendment. The grounds urged on appeal may not differ from those raised at trial. Survance v. State, (1984) Ind., 465 N.E.2d 1076, 1083. Finally, the record presented for our review contains neither the transcript of the hearing on the motion to suppress nor the tape recorded statement. See Crane v. State, (1978) 269 Ind. 299, 302, 380 N.E.2d 89, 92.
is harmless when other evidence having the same probative value is admitted without objection and is not refuted." Walton v. State, (1980) 272 Ind. 398, 401, 398 N.E.2d 667, 670, and cases cited therein.
During cross-examination of the Defendant, the State introduced and the court admitted into evidence photographs of the decedent, State's exhibits numbers 11 and 12, over Defendant's objection that they were repetitious of other photographs already admitted into evidence, namely exhibits 1 and 2. Exhibit number 1 was a full length photograph of the decedent lying on his back. Exhibit number 2 was a close-up of the decedent's back and buttocks. Exhibit number 11 depicted the decedent's back, and exhibit number 12 depicted the back of his legs.
In Hyde v. State, (1983) Ind., 451 N.E.2d 648, we set forth the following criteria for determining whether the admission into evidence of cumulative photographs constitutes reversible error:
Defendant contends that the trial court abused its discretion in admitting the photographs because they were submitted, not during the State's case-in-chief, but rather during the cross-examination of the Defendant. He further contends that the State merely wanted "to again pass for the jury's view photographs of the corpse."
Dr. Wiland had testified that the victim's body bore fifty-eight separate bruises. During the State's cross-examination of the Defendant, the Prosecutor attempted to determine the cause of the bruising. The Defendant identified the photographs depicting the bruises as pictures of his son and further testified that he did not know how his son had received the bruises and that he had not seen them until he saw his son's body at the hospital. The photographs were relevant to show the nature and extent of the bruising. Moreover,
we find that photograph number 12 was not repetitious in that it depicted an entirely different view of the body than did the other photographs. Even though exhibit number 11 was somewhat cumulative of exhibit number 2, it was not gruesome or inflammatory. Defendant has failed to show that the jury was prejudiced because of the cumulative nature of the photograph. Hence, we find no abuse of discretion in the trial...
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