Nading v. State

• Decision Date: 10 July 1978
• Docket Number: No. 177S34,177S34
• Citation: 268 Ind. 634,377 N.E.2d 1345
• Parties: Eric NADING, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1345

377 N.E.2d 1345

268 Ind. 634

Eric NADING, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 177S34.

Supreme Court of Indiana.

July 10, 1978.

George J. Lewis, Lineback & Lewis, Greenfield, for appellant

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged by indictment with First Degree Murder, Ind.Code § 35-13-4-1 (Burns 1975), for the shooting death of David Burton. Following a trial by jury, Defendant was found guilty of Second Degree Murder, Ind.Code § 35-1-54-1 (Burns 1975), and he was sentenced to life imprisonment. This direct appeal presents the following issues:

(1) Whether it was error for the trial court to consider the in-trial testimony of one witness when ruling upon the relevancy of a subsequent witness.

(2) Whether the trial court committed error by admitting certain photographs of the decedent into evidence.

(3) Whether an incriminating statement made by the defendant to a police officer was erroneously admitted.

(4) Whether the trial court erred by allowing a State's witness to testify that he was voluntarily residing in jail because he feared for his life.

ISSUE I

At the time Defendant stood trial for the murder of David Burton, he also had charges for violations of Indiana's Controlled Substances Act, Ind. Code §§ 35-24.1-1-1 through 35-24.1-5-8, pending During trial the State requested, and was granted, relief from the order to allow testimony to be presented by State's witness, Randall Pike. Pike testified that he had been an eyewitness to the killing, and that immediately prior to shooting the deceased with a shotgun, the defendant had asked the deceased why he had given information to the police which had resulted in Defendant's drug arrest. Pike testified that the defendant had said to the deceased, "Why did you bust me. Why did you nark on me."

against him. By a pre-trial order in limine, the State was prohibited from eliciting any testimony concerning these drug charges. By the terms of the order, however, the State could, by motion out of the jury's presence, seek relief from the order as to any particular witness.

Subsequent to Pike's testimony, the State again sought relief from the order in limine for the testimony of State Police Officer Oldham. Oldham had participated in Defendant's arrest on the drug charges, and out of the jury's presence, he informed the court that the defendant had said that the informer in the drug arrest, "would pay for it." The deceased was the informer who had aided the police in arresting the defendant on the drug charges, and the State sought to introduce Oldham's testimony to evidence premeditated malice.

Counsel presented arguments to the court, and the State requested the court to consider Pike's trial testimony when making its determination upon the relevancy of Oldham's testimony. The defendant objected on the ground that Pike was not then before the court and not subject to cross-examination. The court agreed to consider Pike's trial testimony, and granted relief from the order in limine as to Oldham's testimony.

Defendant contends that the trial court committed reversible error by considering Pike's trial testimony when making its ruling upon the admissibility of Oldham's testimony.

The trial court originally granted Defendant's motion in limine upon a preliminary determination that evidence of Defendant's drug charges would not be relevant to the issue of his guilt in the trial for murder. The court's relaxation of the pre-trial order to allow Oldham's testimony, was in the light of evidence presented which was not known at the time of the limine order. The trial court observed:

"The essential thing that you're trying to prove eventually to this jury is that there was a criminal charge pending against the defendant, that the deceased was an informant who aided the police in filing that charge against the defendant and that the defendant knew that the deceased was the informant. Those are the three things you're going after."

Pike's trial testimony established that the defendant knew that the deceased was the police informant. This was necessary to establish the relevancy of the threat the defendant had made in Oldham's presence.

The implication of Defendant's argument is that a full evidentiary hearing, with the right of cross-examination, is necessary whenever the trial court rules upon the admissibility of evidence. The defendant has presented no argument which would support such a radical departure from established practice, and the trial court committed no error by overruling his objection.

ISSUE II

Defendant objected to the admission of two black-and-white photographs which depicted the shotgun wounds of the deceased, upon the grounds that they were repetitive and prejudicial. One photograph showed the full length of the deceased's corpse, with the wounds in the chest and in the neck. The other photograph was a close-up of the head and neck, showing the wound in the neck.

Photographs are admissible as evidence of anything to which a witness might himself be permitted to testify. Carroll v. State, (1975) 263 Ind. 696, 338 N.E.2d 264. Both of the photographs introduced at trial and challenged here were illustrative of the cause of decedent's death. Walker v. State Although the two photographs were somewhat repetitive and gruesome, their admission was not reversible error, since it cannot be said that the relevancy of the photographs was outweighed by their potential to prejudice the defendant's fair trial rights. Merritt v. State, (1978) Ind., 371 N.E.2d 382; ...