Patterson v. State

• Citation: 324 N.E.2d 482,263 Ind. 55
• Decision Date: 18 March 1975
• Docket Number: No. 275S34,275S34
• Parties: James Earl PATTERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 482

324 N.E.2d 482

263 Ind. 55

James Earl PATTERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 275S34.

Supreme Court of Indiana. March 18, 1975.

January 1, 1975

[263 Ind. 56] Thomas H. Clifford, Jr., Merrillville, for appellant.

Theo. L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

PRENTICE, Justice.

This case is before us upon the defendant's (appellant's) petition to transfer. Said petition is now granted. The decision and the opinion of the Court of Appeals, Third District filed July 24, 1974 and reported in 314 N.E.2d 92 is hereby vacated, but the judgment of the trial court is, nevertheless, affirmed.

Numerous issues were presented by the appeal and will be treated herein. We go first to the 'hearsay evidence' issue as it is that issue that occasioned the grant of transfer, in hopes of making a clear pronouncement of our departure from an ancient application of the hearsay rule--one that we have more recently determined to be a misapplication.

To avert giving a mistaken concept that we are abandoning or altering the 'hearsay rule,' we shall here repeat its accepted definition.

"Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.' (McCormick, Evidence § 225).' (Emphasis ours) Harvey v. State (1971), 256 Ind. 473 at 476, 269 N.E.2d 759 at 760.

In the case before us, the prosecution was in possession of two pretrial signed statements given to the police by witnesses, one the wife of the defendant and the other Miss Robinson, a guest of the victim at the time of the homicide. It is difficult to determine from the record precisely why such statements were either offered or objected to, but such is not pertinent to this opinion. Miss Robinson's testimony did not conflict with the statement she had previously given to the police, but it was somewhat more incriminating, because it was more revealing. In one relatively minor aspect, the prior statement of Mrs. Patterson was in conflict with her testimony. Both witnesses had been called by the State.

On cross-examination, the defendant confronted Miss Robinson with excerpts from her prior statement, seeking to impeach her. Thereafter, the court permitted the State to introduce the entire written statement, over the objection of the defendant that it was hearsay.

On direct examination, the State offered Mrs. Patterson's prior statement for impeachment purposes. The defendant objected, asserting that there was no basis for impeachment by the State of its own witness. The court admitted the document and did not instruct the jury that the prior statement could be considered for impeachment purposes only and not as substantive evidence.

The admission of both of the aforementioned statements violated the traditional hearsay rule in Indiana, as such rule was regarded prior to Skaggs v. State (1973), Ind., 293 N.E.2d 781. By dicta, we had previously stated that the primary reason for excluding hearsay is because of its insusceptibility to the test of cross-examination. Harvey v. State (supra). In Skaggs, we distinguished prior cases wherein the out-of-court assertions had been excluded, the distinction being in such cases, the out-of-court asserter was not available for cross-examination. We made no attempt, however, to deal with prior cases where such out-of-court assertions had been excluded notwithstanding the presence and availability for cross-examination of the out-of-court asserters, i.e. Hogan v. State (1956), 235 Ind. 271, 132 N.E.2d 908; Parker v. State (1925), 196 Ind. 534, 149 N.E. 59. Undoubtedly, there are a host of other such cases. As in Skaggs, the out-of-court asserters, Miss Robinson and Mrs. Patterson were upon the witness stand at the time their out-of-court assertions were offered. Neither denied giving the statements attributed to her, nor did either profess ignorance of such statements. It was, therefore, not necessary for the truth of the out-of-court assertions to rest upon the credibility of persons not present and then subject to cross-examination concerning the statements. Under such circumstances, since the matters asserted were relevant to the issues, there was no reason to reject the statements, as substantive evidence, simply because they had been made at a time when the witnesses were not subject to cross-examination. This view is in accord with, although not as liberal as, those expressed by Wigmore on Evidence (Chadbourn Revision) § 1018, McCormick on Evidence, 2d Ed., § 251, The Uniform Rules of Evidence, Rule 63(1) and The Model Code of Evidence, Rule 503(b). The revised federal rules effective July 1, 1975 require the prior statement to have been given under oath, a departure in this regard from the present federal rule and from the revised rule recommended by the Advisory Committee. We note, however, that in all three versions of the federal rules, the availability of the declarant for cross-examination is required. It is our judgment that this safeguard is of paramount importance and is adequate.

Defendant assigned as further error the denial of his tendered instruction No. 3 which was as follows:

'The defendant is not required to satisfy your minds of the existence of any fact or state of facts, which, if true, is the defense. In other words, applying this rule to the case at hand the defendant is not required to convince you that he acted in self-defense.

'The State is required to prove beyond a reasonable doubt that he did not act in self-defense.'

The tendered instruction is basically a correct statement of the law but is an oversimplification. The last sentence, standing without qualifications, might give rise to the belief that the State is required to disprove an assumption or presumption of self defense, which is not the case. If self defense is an issue in the case, then the burden of proof thereon is upon the State, just as with the other issues, and under such circumstances the defendant is not required to satisfy the trier of fact that the homicide was justifiable, rather it is enough if the evidence upon that issue raised a reasonable doubt. Hill v. State (1937), 212 Ind. 692, 699--700, 11 N.E.2d 141; Males v. State (1927), 199 Ind. 196, 202--203, 156 N.E. 403; Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771; Clark v. State (1902), 159 Ind. 60, 64 N.E. 589; Parker v. State (1894), 136 Ind. 284, 35 N.E. 1105; Trogdon v. State (1892), 133 Ind. 1, 32 N.E. 725.

Self defense is not an issue in every homicide case. It may be injected by direct evidence or by inference reasonably drawn from any evidence of probative value. Until there is such an issue, however, the State is under no burden to refute an imaginary or anticipated defense.

In the case before us the issue of self defense was present and instructions thereon were required. However, the refusal of an instruction is not grounds for reversal if the substance thereof is covered by other instructions. Lolla v. State (1973), Ind., 294 N.E.2d 798; Blackburn v. State (1973), Ind., 291 N.E.2d 686.

The tendered instruction embodied concepts of the presumption of innocence, the burden of proof and reasonable doubt. These factors were covered in instructions Nos. 1, 11, 12, 13, 16 and 17, and we do not believe that the jury could have been misled by reason of not having received the instructions tendered and refused.

Defendant urges Kampo Transit, Inc., et al. v. Powers (1965), 138 Ind.App. 141, 211 N.E.2d 781 as authority upon this claimed error and advises us thereon as follows:

'The question in the instant case must be whether Defendant's Tendered Instruction No. Three was substantially repetitious of the subject matter contained in other instructions given so that it would tend to overemphasize a certain element of the case. Only in such case could it be rejected.'

Such is not a correct statement of the law or of the holding in the Kampo case. The holding in that case was that an instruction that was substantially repetitious so as to tend to overemphasize was properly refused and not that an instruction, although repetitious, was required to be given if it was not so repetitious as to tend to overemphasize. The rule was better stated Chief Justice Givan in Johnson v. State (1972), Ind., 284 N.E.2d 517 as follows:

'* * * Certainly all phases of the law cannot be covered in a single instruction. By their very nature there is a certain amount of repetition in the instructions when taken as a whole. It is only when instructions are so repetitious as to place an undue emphasis on a particular point that they become improper. * * *.'

284 N.E.2d at 519.

We do not maintain that the instruction tendered and refused was likely to overemphasize any of the elements there embodied and that it would have been error for the trial court to have given it. But neither was the refusal thereof reversible error, in view of the giving of the instructions above enumerated.

The next issue is whether the trial court erred in admitting into evidence over the defendant's objections State's Exhibits No. 2, 3 and 7 which were photographs taken at the scene of the crime. These exhibits were, to some extent, repetitious, cumulative and gruesome but were, nevertheless, relevant and competent as aids to assist the jurors in orienting themselves and in understanding other evidence. This is true, notwithstanding two of the photographs pictured the victim's body after it had been moved from the exact position in which it was found.

The relevancy of photographic evidence may be determined by an inquiry as to whether a witness would be permitted to describe verbally the objects photographed. Pierce v. State (1970), 253 Ind. 650, 256 N.E.2d 557; Hawkins v....