McNary v. State, 283S74

Decision Date06 March 1984
Docket NumberNo. 283S74,283S74
PartiesDarrell B. McNARY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Bradford P. Bauer, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Darrell B. McNary, was convicted by a jury of attempted robbery, a Class A felony, Ind.Code Secs. 35-42-5-1 (Burns 1983 Supp.), 35-41-5-1 (Burns 1979 Repl.) and was sentenced to the Indiana Department of Correction for a period of thirty-five years. He raises the following three issues in this direct appeal:

1. Whether the trial court erred by permitting one of the state's witnesses to testify about his comparison of shoe prints in the snow near defendant's house;

2. Whether the trial court erred in admitting into evidence a photograph of the victim depicting the nature of his injuries; and

3. Whether the verdict of the jury is supported by sufficient evidence and is not contrary to law.

A brief summary of the facts from the record shows that about 9:00 p.m. on February 18, 1982, the sixty-six year old victim, Henry Niedbala, heard noises on the front porch of his house. He looked out of a window and saw someone jump from a railing onto the porch. Niedbala then opened his back door to go to a neighbor for help and a black male pushed him back inside the house. The assailant hit him on the side of the head with a long object, which appeared to be a sawed-off shotgun and also struck him in the mouth with his fist. The assailant frisked Niedbala's pockets and began ransacking two dressers which were in the living room. He threatened to kill Niedbala if he didn't give him any money.

At this point, a police officer arrived and called Niedbala's name from the front porch. The assailant ran upstairs and apparently opened a bedroom window and jumped out. Niedbala later identified defendant as his assailant and explained that he was sure of his identification because defendant had approached him in his yard on two prior occasions and asked for food or money. Other police officers outside Niedbala's house noticed footprints in the snow directly underneath the open bedroom window and started following them. The footprints led to a nearby residence and the officers knocked on the door of this house. They asked the woman who answered the door whether anyone had just entered her house. She responded that her son, the defendant, had just come in from shoveling snow.

Defendant was arrested and as he was getting ready to go with the police, his mother handed him a pair of wet, blue tennis shoes saying, "Put on your shoes." Defendant's jeans were wet from the knees down. Niedbala was brought over to defendant's house in a police car and identified defendant as the person who had assaulted him earlier that evening. The police made a further investigation of the footprints outside defendant's house. One of the officers had been trained in footprint comparison methods and testified that in his opinion the footprints leading to defendant's house and those made by defendant after his arrest were made by the same shoes. He stated that his opinion was based on a visual comparison of the footprints in which he noted the particular pattern of the shoe sole and the individual markings left by the bottom of the shoe, such as the places on the sole that were worn.

I.

Defendant first contends that the trial court erred in allowing the shoe print comparison testimony because an insufficient foundation was laid and the testimony was irrelevant and misleading. He argues that no specific measurements of the footprints such as the depth or angle of the imprints were made. The officer testified that his sole basis of comparison was his visual comparison made at night with the aid of a flashlight and that further measurements were impossible due to the snow that was falling. The prints that were compared were outside defendant's house and no comparison was made with the prints found by the victim's house.

Defendant further argues that there was no proof that he actually owned the blue tennis shoes he put on when he was arrested which were used as the basis of comparison with the footprints in the snow. The police officer testified that defendant was not wearing shoes when he was apprehended and that the officer did not know who owned the blue tennis shoes. Defendant presented evidence to show that his younger brother, Timothy Payne, had played basketball at a neighborhood center on the evening of the instant crime and was wearing some blue tennis shoes. Timothy had returned home shortly before the police arrived. At the trial, Timothy testified that the tennis shoes introduced by the state which defendant put on when he was apprehended were Timothy's shoes. Timothy's mother bought him a new pair of tennis shoes after the blue tennis shoes were confiscated and these new tennis shoes showed the same wear pattern on the sole as the old tennis shoes.

All of defendant's evidence on this issue was correctly presented to the jury to allow them to determine the weight and credibility to be given the footprint comparison. However, this evidence did not detract from the proper foundation given by the police officer to support his testimony. The correct standard for the admission of footprint comparisons was set out by the Court of Appeals in the following case, although the actual comparison testimony in that case was held to be erroneous.

"Evidence of the character of footprints found where the crime is discovered and of the similarity of those footprints to the shoes worn by the defendant is admissible to identify him as the guilty person.... For the reason that footprints are large and the points of similarity are obvious (contrasted with fingerprints or palm prints), expert testimony is not required and the comparison may properly be made a subject of non-expert testimony. A witness is generally allowed to give his opinion as to their similarity, provided he bases his conclusion on measurements or peculiarities...

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29 cases
  • Pruitt v. State, 15S00-0109-DP-393.
    • United States
    • Supreme Court of Indiana
    • 13 Septiembre 2005
    ...concedes that a gruesome photograph is permitted if it is an accurate representation of what it purports to represent. McNary v. State, 460 N.E.2d 145, 148 (Ind.1984). However, autopsy photographs have been held inadmissible because the jury could infer that the defendant is responsible "fo......
  • Brown v. State
    • United States
    • Supreme Court of Nevada
    • 23 Junio 2022
    ...other courts have determined expert testimony is unnecessary to admit footwear impression evidence. See, e.g., McNary v. State, 460 N.E.2d 145, 147 (Ind. 1984) (admitting lay opinion comparing a shoe to shoeprints left in snow and pointing to other law holding that "[f]or the reason that fo......
  • Carnes v. State, 2-283A37
    • United States
    • Court of Appeals of Indiana
    • 23 Julio 1985
    ...the conclusion of the trier of fact, the verdict will not be overturned. Davenport v. State, 464 N.E.2d 1302 (Ind.1984); McNary v. State, 460 N.E.2d 145 (Ind.1984); Burgin v. State, 431 N.E.2d 864 (Ind.App.1982).5 Leah argues she was not an occupant of the bedroom due to injuries which kept......
  • Whitehead v. State, 485S142
    • United States
    • Supreme Court of Indiana
    • 22 Julio 1987
    ...report which found that no conclusion could be made as to whether Appellant's shoe made the footprints in the blood. In McNary v. State (1984), Ind., 460 N.E.2d 145, we held a non-expert may give opinion testimony concerning a footprint comparison when the comparison is based on specific id......
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