Morris v. State

• Decision Date: 31 March 1982
• Docket Number: No. 1-781A212,1-781A212
• Citation: 433 N.E.2d 74
• Parties: J. W. MORRIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 74

433 N.E.2d 74

J. W. MORRIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-781A212.

Court of Appeals of Indiana, First District.

March 31, 1982.

Geoffrey A. Rivers, Muncie, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

J.W. Morris appeals his conviction of voluntary manslaughter in violation of Ind.Code

35-42-1-3 (Supp.1979) ¹ after trial by jury in the Henry Circuit Court. We affirm.

STATEMENT OF THE FACTS

The facts most favorable to the state show that on November 25, 1978, Johnny Ray Jones (Jones), Dana Morris, and the defendant set out from defendant's mother's home to go to the home of Alma Arbuckle where the defendant's father was living. Jones carried Dana Morris's shotgun. Soon thereafter, the bedroom window of Arbuckle's house was shot out by a shotgun blast.

The evidence as to who shot out the window, as the evidence as to who shot and killed David Upton III (Upton), is conflicting. Jones testified that he stopped in an alley and did not go to Arbuckle's house. Later when he encountered Dana and the defendant, Dana told him (Jones) that he had shot Upton. Jones then agreed to say he had shot Upton. However, both Dana and the defendant testified that Jones shot out the window at Arbuckle's house. After shooting out the window, Jones and the defendant ran down an alley. When they stopped beside a house near a vacant lot, Upton, who at his mother's request had gone outside to investigate the blast, shined a flashlight on the defendant. The defendant thought Upton had a gun in his hand. He told Jones he thought the person had a gun in his hand and said, "Let's split." The defendant ran in one direction and Jones ran in another direction. Shortly after hearing a shotgun blast, the defendant saw Jones crossing a street. Jones told Morris he thought he had killed someone. The defendant and Jones met up with Dana on the way back to the defendant's house, and Jones told Dana he thought he had shot someone. Upon returning to the defendant's home, the defendant or Dana hid the shotgun. Upton was found lying in the street with a gunshot wound in the chest. He subsequently died.

The defendant, along with Jones, was charged with murder. He was tried and convicted of murder. However, our supreme court reversed the defendant's conviction in Morris v. State, (1980), Ind., 399 N.E.2d 740. After a change of venue, the defendant was tried again and found guilty of voluntary manslaughter. He was sentenced to eight years, and then he perfected this appeal.

ISSUES

Although the defendant set out eleven issues in his brief, he expressly waived six of those issues. Thus, the following issues, which we have restated, have been raised for our consideration:

1. Whether the trial court abused its discretion by allowing state's Exhibit No. 8, a photograph of the deceased taken in the autopsy room, into evidence.

2. Whether the trial court abused its discretion in admitting into evidence state's Exhibits Nos. 7 and 12 which were prior statements made by Jones and the defendant, respectively.

3. Whether the trial court abused its discretion when it did not allow the jury to hear the entire prior testimony of Jerry Stephens from the defendant's first trial.

4. Whether the decision of the trial court is contrary to law.

DISCUSSION AND DECISION

Before discussing the issues in this case, we feel it is incumbent upon us to instruct both counsel for the defendant and the state on the proper method of summarizing the facts in a case on appeal. Both counsel for Morris and counsel for the state have set out their statement of the facts by relating to this court the testimony of each witness who testified. That is not the proper manner in which the statement of facts in an appellate brief is to be constructed. Rather, "(i)t should be a concise narrative summary of the facts in a light most favorable to the judgment. It should not be a summary of each witnesses' testimony." Moore v. State, (1981) Ind.App., 426 N.E.2d 86, 90. Furthermore, the reiteration of each witness's testimony in defendant's brief is improperly contained under the heading "STATEMENT OF THE CASE." As Judge Chipman stated in Moore v. State, supra, at 89:

"The statement of the case is intended to assist this court by setting forth the procedural posture of the case. Although it is unnecessary to include the contents and dates of all of the pleadings, hearings and orders, it is necessary to accurately report all entries which explain the trial court's actions and affect the issues on appeal."

Defendant's brief further violates Ind. Rules of Procedure, Appellate Rule 8.3(A) by providing a verbatim statement of the jury's verdict instead of a verbatim statement of the judgment. A failure to provide a verbatim statement of the judgment can result in the affirmance of the trial court's judgment. Moore v. State, supra. Counsel would be well advised to follow precisely A.R. 8.3(A) when submitting a brief to this court on appeal.

Issue One

During his testimony, Muncie Police Officer Jack Stonebraker identified state's Exhibit No. 8, a photograph of David Upton with an autopsy identification tag lying on his throat and a medical breathing device in his mouth. When the state offered this exhibit into evidence, the defendant objected on the grounds the exhibit had no probative value, did not show the cause of death, did not aid the jury in the determination of the cause of death, and was used solely to inflame the jury. The exhibit was admitted into evidence over the defendant's objection. He now contends the trial court abused its discretion in admitting the photograph into evidence because it had no probative value and inflamed the jury.

Generally, it is within the sound discretion of the trial court to rule on the admission of photographic evidence. Dillon v. State, (1981) Ind., 422 N.E.2d 1188. The trial court's discretion will not be disturbed on appeal unless the appellant demonstrates it has been abused. Id. A photograph must be relevant and a true and accurate representation of the thing it is purported to portray to be admissible. Dillon v. State, Id. Furthermore, even though a photograph may be gruesome, it is admissible if it explains relevant oral testimony given at the trial and is admitted for the purpose of showing the scene of the crime or the nature of the victim's wounds. Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745. However, when a photograph does not tend to prove or disprove some material fact in issue which has already been established and serves to arouse passion and prejudice, its admission will constitute an abuse of discretion. See Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899, reh. granted 241 Ind. 176, 169 N.E.2d 723 (1960), cert. denied 366 U.S. 914, 81 S.Ct. 1089, 6 L.Ed.2d 238 (1961).

In the present case, the photograph does not elucidate Officer Stonebraker's testimony about Upton's wounds since state's Exhibit No. 8 does not depict those wounds. Nonetheless, the state contends its Exhibit No. 8 tended to prove a material fact, i.e., that David Upton III was a human being. It is true that the photograph does show Upton to be a human being and that the state does have to prove the defendant killed another human being. See Ind.Code 35-42-1-3 (Supp.1979). However, the use of autopsy photographs for such a purpose could lead to a reversal if the prejudicial effect of the photograph outweighs its probative value, especially when sufficient other evidence establishes the fact which the state desires to prove. See Kiefer v. State, supra. Such a situation is not present in the case at bar. The photograph introduced by the state is not so gruesome as to outweigh its probative value or inflame the passions of the jury. We find the trial court did not abuse its discretion in admitting state's Exhibit No. 8.

Issue Two

The defendant contends the trial court erroneously admitted into evidence one of his prior inconsistent statements, denominated state's Exhibit No. 12, and a prior inconsistent statement of Johnny Ray Jones, denominated state's Exhibit No. 7. Specifically, he contends there was not any foundation laid for the admission of these statements since both he and Jones admitted to having made prior inconsistent statements. The state counters that Morris has waived any error as to the admission of state's Exhibit No. 7 since he did not object on the grounds of lack of foundation, but rather on the grounds of irrelevancy. We agree with the state.

It is axiomatic that an appellant cannot assert on appeal different grounds for objection to the admission of evidence than asserted at trial. See Carter v. State, (1980) Ind.App., 412 N.E.2d 825, trans. denied; Ralston v. State, (1980) Ind.App., 412 N.E.2d 239, trans. denied (1981); Smith v. State, (1980) Ind.App., 403 N.E.2d 869, trans. denied. Furthermore, a general objection such as "irrelevant" at trial to the admission of evidence preserves no issue for review on appeal. O'Conner v. State, (1980) Ind., 399 N.E.2d 364; Ringley v. State, (1979) Ind.App., 395 N.E.2d 339. Thus, we will not consider the defendant's argument that state's Exhibit No. 7 was erroneously admitted.

We now turn to the question of whether state's Exhibit No. 12 was erroneously admitted. During the cross-examination of the defendant, the state admitted into evidence its Exhibit No. 12 which was a statement made by the defendant on November 26, 1978. This exhibit was admitted only for impeachment purposes by the trial court since our supreme court had previously held in Morris v. State, (1980) Ind., 399 N.E.2d 740, that this statement was the fruit of an illegal arrest. On appeal, the defendant contends the admission of state's Exhibit No. 12 for impeachment purposes constitutes reversible error because the state failed to lay a proper...