Patel v. State

• Decision Date: 30 January 1989
• Docket Number: No. 84S00-8612-CR-1013,84S00-8612-CR-1013
• Parties: Cassandra PATEL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 580

533 N.E.2d 580

Cassandra PATEL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 84S00-8612-CR-1013.

Supreme Court of Indiana.

Jan. 30, 1989.

William C. McClain, Vigo County Public Defender, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen., Wendy L. Stone, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On April 21, 1986, a jury, in Vigo Superior Court Division I, found Defendant-Appellant Cassandra Patel guilty of murder, and subsequently the trial court sentenced her to a term of forty (40) years.

Specifications of error presented for our consideration in this direct appeal have been consolidated into five, as follows:

1. refusing Patel's tendered instructions;

2. admitting certain exhibits into evidence;

3. admitting evidence in violation of discovery rules;

4. admitting Patel's confession; and

5. denying Patel's motion for judgment on the evidence.

The facts indicate that on the evening of November 18, 1985, the victim, Linda Ketner, was visiting her brother, Edward Ketner, at his home at 1905 Elm Street, Terre Haute, Indiana. At about 9:00 p.m., she was speaking with a friend on the phone while sitting at the kitchen table, which was located directly inside an open window in the front of the house. Edward Ketner also was sitting at the table when they heard a loud knock at the door. Linda got up from her chair and was preparing to answer the door when Edward heard a gun shot come through the front door. He told Linda to get down but as she stopped near the refrigerator and turned toward the kitchen window, she was shot in the chest. Edward noticed she grabbed at her chest and began screaming. He laid her down in the living room while he called for help but she died at the scene.

Neighbors heard the shots coming from outside the Ketner home and saw two women, one a 5'9" light haired woman with glasses, running from the scene toward a nearby school. Prior to their departure, a witness, Keith Ellington, saw Cassandra Patel and her sister proceed up to the front door of Ketner's residence. Edward Ketner was Cassandra Patel's ex-husband. The two women had previously told Ellington they were going to settle some dispute concerning Patel's child and asked him to join them by waiting for them in the alley. Patel banged on the door and yelled something, at which time she drew her gun, stepped back and fired shots into the house. At this point all of them ran from the scene.

About 11:00 p.m. that evening, Terre Haute police received a call from a woman who identified herself as Patel and confessed to killing Linda Ketner; she quickly added her mother had nothing to do with the shooting. She told police she was at a truck stop and would wait there for them. Police subsequently found her at the designated truck stop and arrested her.

I

Patel claims the trial court erred in refusing to give her tendered instructions No's. 1, 2, 3, 6, 7, 8, and 9, to the jury. It is basic that in considering whether any error results from refusal of a tendered instruction, the reviewing court must determine: 1) whether the tendered instruction correctly states the law; 2) whether there is evidence in the record to support the giving of the instruction; and 3) whether the substance of the instruction is covered by other instructions which were given. There is no error in refusing an instruction where its subject matter was substantially covered by other instructions which the court gave. Van Orden v. State (1984), Ind., 469 N.E.2d 1153, 1161, cert. den. 471 U.S. 1104, 105 S.Ct. 2335, 85 L.Ed.2d 851; Kalady v. State (1984), 462 N.E.2d 1299,1311.

Patel's tendered instruction No. 1 addressed the State's burden of establishing her guilt as charged beyond a reasonable doubt and further elaborated that the State must prove each material element of the crime beyond a reasonable doubt. This subject was fully covered in the court's final instructions 1 and 3. Patel's tendered instruction No. 2 concerned the jury's right to determine the law and facts and reiterates the reasonable doubt language. The court's final instruction No. 8, which was given, covered this subject well; it clearly referred to the constitutional provision which states the jurors are judges of both the law and the facts, and explained the meaning of those provisions. Also, Patel's tendered instruction No. 3 defined "knowingly" as an element of a crime requiring criminal intent on the part of the defendant. The court's final instructions No's. 5, 11, and 12 clearly covered this subject; they explained the State must prove all material elements of the offense, gave the material elements of the offense of murder, and specifically defined "knowingly" in the context of knowingly engaging in conduct. Patel's tendered instruction No. 6 is another reference to the prosecution's burden of proving every element of the offense beyond a reasonable doubt. As indicated above, the court's final instruction No. 11 fully covered this area. Final Instruction No. 22, which communicated to the jury information concerning the exclusion of every reasonable hypothesis of innocence, covered Patel's instruction No. 7. The court's final instructions 4 and 9, which concerned the weighing of evidence and judging the credibility of witnesses, fully articulated the subject of Patel's tendered instruction No. 8. Patel concedes final instruction No. 23 covered her tendered instruction No. 9, but claims her instruction was more simple. We find the court's instruction 23 is more complete than Patel's tendered No. 9 and includes definitions of direct evidence, circumstantial evidence, inferences to be drawn from facts in evidence, and a test for determination based on circumstantial evidence.

Clearly the court's instructions adequately covered each of Patel's tendered instructions, and we find no error where the trial court refused her instructions.

II

Patel claims the trial court erred in admitting into evidence State's Exhibit 42, a photograph of her taken at the time she was booked for the instant charge at the Vigo County Jail. Patel cites Richey v. State (1981), Ind., 426 N.E.2d 389, for the proposition that "mug shots" are generally inadmissible. She is, of course, correct that "mug shots" are prejudicial to a defendant in that they connote prior criminal activity. Id. at 394. See also Long v. State (1988), Ind., 529 N.E.2d 339, 340. This was not true of State's Exhibit 42, however. The purpose of admitting Exhibit 42 was to show differences in Patel's appearance at trial and at the time of her arrest. Witness Marci Oldham testified she saw Patel running from the Ketner house that night, but she had shorter hair and was wearing glasses. Exhibit 42 was offered to corroborate that testimony. The fact that a portion of the photo revealed the words "Vigo County Jail" along the right side did not create undue prejudice to Patel since testimony indicated the photograph was indeed taken at the Vigo County Jail at the time she was being charged with the crime. There was therefore no error in its admission into evidence.

Patel further argues State's Exhibits 1, 2, 3, 4, 5, and 13, which were exterior photos of the crime scene, were improperly admitted. The admission or exclusion of photographic evidence rests largely with the discretion of the trial court and the determination that court makes will not be disturbed on appeal unless it is clearly erroneous. The law approves of the use of photographs to prove the existence and nature of relevant physical objects and scenes so long as they are true and accurate. Boyd v. State (1986), Ind., 494 N.E.2d 284, 295, cert. den. 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860; Brumfield v. State (1982), Ind., 442 N.E.2d 973, 975. The purpose of such photographs is to aid the jury in visualizing the scene as described in testimony.

Witness Edward Ketner identified these exhibits and testified they depicted the scene as it was immediately before, after, or at the time of the shooting. He pointed out the discrepancies in the photos from the actual condition of the scene that night. He stated the difference in the photo designated as State's Exhibit 2, as compared to the scene at the time of the crime, was that a police officer was standing in the doorway in the photo and the house was artificially illuminated. Ketner also testified State's Exhibit 3 represented the appearance of the exterior of the house at the time of the shooting and distinguished this shot from Exhibit 2 which represented the scene after the shooting. These discrepancies, with the attendant explanation, were not so material as to be inadmissible on the grounds they would mislead the jury. Gill v. State (1977), 267 Ind. 160, 166, 368 N.E.2d 1159, 1162.

Ketner also testified that Exhibit 13, a photo of the kitchen window, substantially depicted the way that window appeared at the time of the shooting; that is, the curtains were open, the window was up, and the screen was in place. The photographs were offered in conjunction with Ketner's testimony and showed the approximate direction from which the second shot came into the home. Although the bullet holes in the screen were not apparent from the photos, they were not being offered as proof as to the location of the bullet holes, but rather to assist the jury in visualizing the kitchen area and the angle or direction from which the bullet came through the screen. Therefore, the fact the bullet holes could not be clearly seen in the photos does not mean they lacked probative value. Patel's argument goes to the weight to be given these exhibits rather than to their admissibility. We do not see that the trial court abused its discretion in admitting State's Exhibits 1, 2, 3, 4, 5, and 13.

Patel further objects to the admission of Exhibits 19 and 20, claiming they were irrelevant and immaterial. Even if offered evidence is only marginally relevant, it is within the sound...