Moore v. State, No. 180S17

Docket NºNo. 180S17
Citation414 N.E.2d 558, 275 Ind. 39
Case DateJanuary 08, 1981
CourtSupreme Court of Indiana

Page 558

414 N.E.2d 558
275 Ind. 39
John E. MOORE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 180S17.
Supreme Court of Indiana.
Jan. 8, 1981.

[275 Ind. 40]

Page 559

Christopher C. Zoeller, Peters, Carter & Zoeller, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, John E. Moore, was convicted by a jury of second-degree murder, Ind.Code § 35-1-54-1 (Burns 1975) and was sentenced to life imprisonment. His direct appeal raises the following issues:

1. Whether the trial court erred in admitting evidence of a prior assault by defendant upon the victim;

2. Whether the trial court erred in admitting a photograph of the victim into evidence;

3. Whether the trial court erred in refusing to give two of defendant's tendered instructions on self-defense; and

4. Whether the verdict of the jury is sustained by sufficient evidence.

A summary of the facts from the record most favorable to the state shows that defendant was separated from his wife, Glenda Rice Moore. [275 Ind. 41] Mrs. Moore was living at the home of her mother, Odessa Rice. On January 27, 1977, an Indianapolis police officer was directed to Mrs. Rice's address by a radio report of a man with a knife. The officer, Terry Boyer, testified that he saw defendant holding a knife to his estranged wife's throat and then saw him beating her with his fists. Boyer was finally able to stop defendant and handcuff him.

About two months later, on March 14, 1977, defendant came to Mrs. Rice's home. He attempted to talk to Glenda Moore when she came out of the house and crossed the street to get into a car. Moore said that there was nothing to talk about. Mrs. Rice was on the porch and saw defendant pull a gun and fire at his wife. Moore put her hand up to her face and exclaimed, "Oh, John. You shot me!" She threw down her purse and keys and ran down an alley. Defendant ran after her and fired more shots at her.

When police arrived, they found a group of people gathered in the alley and defendant's wife lying on the ground dead. An autopsy disclosed that she had been hit by two gunshots. One wound was across the bridge of the nose and right side of the face. A second shot, which was the cause of death, had penetrated the left side of her body, going entirely through the heart and right lung.

I.

Defendant first contends that it was erroneous to admit into evidence the testimony of Officer Boyer concerning the prior assault by defendant on the victim. Defendant had filed a motion in limine concerning this testimony prior to trial; however, the motion was denied. Defendant renewed his objection when the testimony was introduced at trial.

It is clear that evidence of prior threats and acts of beating or assault upon the same victim is admissible in a murder trial as proof of malice and intent to kill. Martin v. State, (1978) 267 Ind. 583, 372 N.E.2d 181; Greer v. State, (1969) 252 Ind. 20, 245 N.E.2d 158; Corbin v. State, (1968) 250 Ind. 147, 234 N.E.2d 261. There was no error in admitting the evidence of the prior assault for this purpose. Defendant also argues that one part of the officer's testimony about the prior assault was inadmissible hearsay. The officer testified that as he approached the building where he could observe defendant [275 Ind. 42] attacking the victim, defendant shouted, "Don't come in, pig." We find no error here since evidence about the entire prior assault including defendant's actions and remarks at that time, was admissible as proof of malice and intent to kill.

II.

The defendant next contends that it was error to admit into evidence a photograph of the upper part of the nude body of

Page 560

the victim. It is well settled that photographs are admissible when testimony concerning that which they depict would be proper. Autopsy photographs that are illustrative of a witness's testimony and tend to prove the cause of death are admissible. Grooms v. State, (1978) 269 Ind. 212, 379 N.E.2d 458; Tinsley v. State, (1977) 265 Ind. 642, 358 N.E.2d 743.

In the instant case, the pathologist testified about the path of the bullet through decedent's heart and lung, causing death. The witness referred to the photograph which was illustrative of his testimony and was not unnecessarily gruesome. The photograph was...

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17 practice notes
  • Grimes v. State, No. 1280S444
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1983
    ...are admissible when relevant to a victim's cause of death and illustrative of a witness' testimony. Moore v. State, (1981) Ind., 414 N.E.2d 558; Bond v. State, (1980) Ind., 403 N.E.2d 812, reh. denied. The fact that the photographs are gruesome does not in itself render them inadmissible; t......
  • State v. Staten, No. 108,305
    • United States
    • United States State Supreme Court of Kansas
    • August 12, 2016
    ...of proof omission had any effect on the jury's determination of this case”; therefore, no plain error). See, e.g. , Moore v. State , 275 Ind. 39, 42–43, 414 N.E.2d 558 (1981) (jury correctly instructed on State's burden to prove all elements of crime beyond reasonable doubt; additional inst......
  • Bryan v. State, No. 1181S327
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1983
    ...of a homicide is admissible as evidence of the intent to kill. Harris v. State, (1981) Ind., 425 N.E.2d 112; Moore v. State, (1981) Ind., 414 N.E.2d 558; Martin v. State, (1978) 267 Ind. 583, 372 N.E.2d 181. This evidence of prior attacks on the decedent was not rendered inadmissible merely......
  • Wells v. State, No. 282S63
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...illustrative of a witness' testimony and tending to prove cause of death may be admitted into evidence. Moore v. State, (1981) Ind., 414 N.E.2d 558. The fact such photographs may be gruesome does not affect their admissibility if they fit within the rule. Chambers v. State, (1979) Ind., 392......
  • Request a trial to view additional results
17 cases
  • Grimes v. State, No. 1280S444
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1983
    ...are admissible when relevant to a victim's cause of death and illustrative of a witness' testimony. Moore v. State, (1981) Ind., 414 N.E.2d 558; Bond v. State, (1980) Ind., 403 N.E.2d 812, reh. denied. The fact that the photographs are gruesome does not in itself render them inadmissible; t......
  • State v. Staten, No. 108,305
    • United States
    • United States State Supreme Court of Kansas
    • August 12, 2016
    ...of proof omission had any effect on the jury's determination of this case”; therefore, no plain error). See, e.g. , Moore v. State , 275 Ind. 39, 42–43, 414 N.E.2d 558 (1981) (jury correctly instructed on State's burden to prove all elements of crime beyond reasonable doubt; additional inst......
  • Bryan v. State, No. 1181S327
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1983
    ...of a homicide is admissible as evidence of the intent to kill. Harris v. State, (1981) Ind., 425 N.E.2d 112; Moore v. State, (1981) Ind., 414 N.E.2d 558; Martin v. State, (1978) 267 Ind. 583, 372 N.E.2d 181. This evidence of prior attacks on the decedent was not rendered inadmissible merely......
  • Wells v. State, No. 282S63
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...illustrative of a witness' testimony and tending to prove cause of death may be admitted into evidence. Moore v. State, (1981) Ind., 414 N.E.2d 558. The fact such photographs may be gruesome does not affect their admissibility if they fit within the rule. Chambers v. State, (1979) Ind., 392......
  • Request a trial to view additional results

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