Miller v. State, 71S00-8808-CR-724

• Decision Date: 17 July 1989
• Docket Number: No. 71S00-8808-CR-724,71S00-8808-CR-724
• Citation: 541 N.E.2d 260
• Parties: Vernon D. MILLER a/k/a Vernon D. Thomas, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 260

541 N.E.2d 260

Vernon D. MILLER a/k/a Vernon D. Thomas, Appellant, v. STATE of Indiana, Appellee.

No. 71S00-8808-CR-724.

Supreme Court of Indiana.

July 17, 1989.

R.W. Chamblee, Jr., South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Burglary, a Class A felony, for which he received a sentence of thirty-five (35) years.

The facts are: On the evening of November 14, 1987, Elaine Bailey received a telephone call from appellant at her home in South Bend. Bailey and appellant had lived together for several years, but Bailey had broken off the relationship and appellant had moved out. Appellant asked Bailey whether she was sleeping with someone. She said no and hung up. Bailey then fell asleep on the couch.

While Bailey was on the couch, she heard the sound of glass breaking from the kitchen. She heard appellant call her name then he jumped on her and began beating her. He had a knife and was alternately beating and slashing her face and body. Bailey's six children began screaming and crying, and appellant stopped attacking her. He then washed the blood from his hands in the kitchen. As he exited, he told Bailey to call an ambulance.

While in the emergency room at the hospital, a nurse told Bailey that her brother was there to see her. Then appellant entered and Bailey jumped off the bed and screamed, "That's not my brother there, that's the man that cut me up." The nurse and a doctor asked appellant to leave, but he refused and struck the nurse and doctor. A hospital security guard was called and, together with the emergency personnel, wrestled appellant in an attempt to subdue him. A knife fell from his pocket and Bailey told them that it was the knife he used while attacking her. As the security guard handcuffed appellant he discovered a flail (described in the evidence as nun-chuks) under his jacket. He also confiscated appellant's knife which was on the floor.

Appellant argues the trial court erroneously admitted into evidence the flail which was taken from him in the hospital. He contends the exhibit was irrelevant to the charges because there was no evidence that he used it in attacking Bailey.

Evidence is relevant and admissible if it tends to prove or disprove a material fact or sheds any light on the guilt or innocence of the accused. Brown v. State (1985), Ind., 480 N.E.2d 938.

None of the eyewitnesses to the attack testified that appellant used or possessed the flail while attacking Bailey. However, considering the amount of other evidence supporting appellant's conviction, we find no reversible error occurred in its admission. Owensby v. State (1984), Ind., 467 N.E.2d 702.

Appellant argues the testimony of Judith Sulok was irrelevant and erroneously admitted. Sulock testified that on the evening of November 14, 1987 she was a nurse working in the emergency room in which Bailey had been admitted. She stated that she heard Bailey screaming "that's the man that did it," and she called security, then appellant began kicking and swinging his arms and she got punched. She further testified that during the struggle a knife fell from appellant's pocket. Appellant contends that because he was not charged for any activity which occurred at the hospital, Sulock's testimony was irrelevant and prejudicial.

Sulock's testimony was relevant in that it helped identify appellant as Bailey's attacker and the weapon used in the attack.

Appellant contends the admission of photographs taken of Bailey was improper. They depicted her soon after the attack in a dishevelled state, her wounds visible and bloody. Appellant argues the photographs were gruesome and merely cumulative of testimony of several witnesses concerning her wounds.

The admission of photographs is within the discretion of the trial court, and its determination will not be reversed absent an abuse of discretion. Photographs which are demonstrative of testimony given by a witness are generally admissible. On appeal, we consider whether the probative value of the photographs outweighed their prejudicial effect. Fozzard v. State (1988), Ind., 518 N.E.2d 789; Whitehead v. State (1987), Ind., 511 N.E.2d 284.

The photographs of Bailey were demonstrative of witnesses' testimony concerning the nature of her wounds. Their probative value outweighed their prejudicial effect. The admission of cumulative evidence alone is not grounds for reversal. Watkins v. State (1984), Ind., 460 N.E.2d 514. No error was committed in the admission of the photographs.

Appellant also argues the trial court erred in admitting photographs of himself. The photographs showed him standing beside a police car in the hospital parking lot, with his shirt tail untucked and his hands behind his back. He claims that the photographs were prejudicial because they showed him in police custody in a state of disarray, and because there was no issue as to his identity.

The photographs about which appellant complains were not relevant to the issues before the court and should not have been admitted. However, we fail to see how the admission of the photographs could be reversible error. They merely depicted a fact which was apparent and uncontested in the evidence.

Appellant finds error in several instructions given to the jury. He argues that the instructions were confusing and amounted to an invasion of the province of the jury. Instruction No. 5 stated that knowledge or intent may be inferred from the facts and circumstances presented in each case. Instruction No. 6 stated that an inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts. Instruction No. 8 was a near-verbatim copy of Instruction No. 9 in Van Orden v. State (1984), Ind., 469 N.E.2d 1153, 1160 concerning the fact that the jury may consider circumstantial evidence in determining whether the defendant had the specific intent to commit the offense.

The content of Instruction No. 8 was approved by this Court in Van Orden, and the content of Instruction No. 5 was included in Instruction No. 8. Instruction No. 6 was simply a correct definition of an inference and is not mandatory or directive. Taken as a whole, we find the instructions were not confusing and were properly given.

Appellant contends he was denied effective assistance of counsel. He gives several reasons supporting his allegation. He first argues his counsel failed to pursue an intoxication defense in his behalf.

Reversal for ineffective assistance of counsel is appropriate when appellant has shown both the deficient performance by counsel and the resulting prejudice was so serious that he was deprived of a trial the result of which is reliable. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Van Evey v. State (1986), Ind., 499 N.E.2d 245. Appellant also must prove that he was prejudiced by...