Russell v. State, 180S15

• Citation: 275 Ind. 679,419 N.E.2d 973
• Decision Date: 01 May 1981
• Docket Number: No. 180S15,180S15
• Parties: Jimmie RUSSELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 973

419 N.E.2d 973

275 Ind. 679

Jimmie RUSSELL, Appellant, v. STATE of Indiana, Appellee.

No. 180S15.

Supreme Court of Indiana.

May 1, 1981.

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction of voluntary manslaughter, a class B felony, Ind.Code § 35-42-1-3, raising six issues:

(1) admissibility of a photograph of the victim's body awaiting an autopsy;

(2) propriety of the trial court's denial of a motion in limine;

(3) insufficiency of the evidence to support the verdict;

(4) fundamental error in admission of evidence of the victim's family status;

(5) admissibility of defense evidence excluded as hearsay; and

(6) admissibility of gruesome photographs.

The evidence favorable to the State shows that on July 15, 1978, appellant, Jimmie Russell, in the aftermath of a fight between Harold Hunter (the victim's brother) and a neighbor, in Harold Hunter's front yard, obtained a shotgun and killed Walter Hunter with it.

I.

A photograph of the victim's body awaiting autopsy was exhibited to the jury. A defense objection that it was irrelevant, inflammatory, and redundant was overruled. It is contended on appeal that this ruling was error and that there could be no rational basis for showing it other than to inflame the passions of the jurors against appellant. He relies on Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899, a case in which this Court reversed a conviction because during trial, photographs taken at the morgue showing the autopsy in progress and the victim's body after the autopsy had been completed, had been shown to the jury. The photograph here, appellant argues, was obviously superfluous because the witness who identified it made no further reference to it, and because other photographs had already been displayed covering every possible purpose for which they could be introduced. We cannot agree with this analysis.

Kiefer involved photographs of a body whose wounds were exaggerated by the autopsy process. In this case, the photograph showed a wound to the throat. This wound appeared less gruesome in the morgue photograph than it appeared in photographs already in evidence which had been taken earlier at the scene of the crime. The photograph was not superfluous because the deputy coroner used it to identify the subject of an autopsy about which he had been called to testify for the State. It is not fatal to the question of admissibility that the deputy coroner did not refer further to the photograph in giving testimony about the cause of death. In Whitfield v. State, (1977) 266 Ind. 629, 366 N.E.2d 173, this Court found no error in the admission into evidence of a photograph showing a victim lying in a pool of blood. We said that the picture was of use to the jury despite the absence of reference to it in the testimony and even though the parties had stipulated the cause of death. The photograph here was similarly of use in identifying the autopsy subject.

The trial court did not err in admitting this photograph into evidence.

II.

Appellant contends that the trial court erred in overruling his motion in limine to prevent the State from introducing evidence which it knew was inadmissible. In his argument, however, appellant does not contend that the trial judge abused his discretion in overruling the motion in limine concerning the results of several scientific tests. Instead, appellant argues that in the course of the trial, the prosecution sought to introduce testimony, through a witness, about the results of a neutron activation test although the test results had not been introduced in evidence and the witness who was asked about the results was not the person who had performed the test. Defense counsel objected on hearsay grounds and the objection was sustained. Appellant's argument seems to focus on the prejudice engendered by his having been "forced" to object in front of the jury and appearing to be an obstructionist.

In addition, appellant points out that in closing argument the prosecution referred to the defense objection to the admission of evidence of the test results. Defense counsel objected to this comment and the trial court admonished the jury to disregard it. This comment was an evidentiary harpoon whose prejudicial impact could not be cured by admonition, appellant contends, citing White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312.

The combination of being forced to object before the jury, having the prosecutor point out the objection in closing argument, and having the trial judge admonish the jury served to draw the attention of the jury to highly prejudicial testimony, appellant contends.

We can find no merit in this issue. In a recent case involving an allegation that a trial court erred in overruling a defendant's motion in limine directed at the exclusion of references to statements of a stabbing victim, we found no error because the defendant's contemporaneous objection was sustained and the objectionable evidence never entered the case. Walker v. State, (1980) Ind., 409 N.E.2d 626. Here, the evidence concerning test results was not admitted.

Concerning the claim that the prosecutor's comment was an evidentiary harpoon, we observe that the defense did not move for a mistrial. Indeed, when the trial judge asked defense counsel if he was satisfied with the admonition, counsel replied that he was satisfied. Moreover, a mistrial would not have been required if defense counsel had moved for one. This comment was the type of irregularity which can be cured by admonition. In the absence of a showing by the appellant that the comment had a discernible and apparent effect on the jury's verdict, we will presume that the jury was able to heed the admonition to disregard the improper comment. See Hightower v. State, (1973) 260 Ind. 481, 296 N.E.2d 654.

No error was committed on this issue.

III.

Appellant next contends that the jury's finding of guilty of voluntary manslaughter was not based on substantial evidence and was contrary to the evidence in that it denied him his lawful presumption of innocence and in that the evidence was not reconciled with the theory of his innocence. Specifically he claims that the State failed to prove an essential element of voluntary manslaughter: sudden heat.

Appellant observes at the outset of this claim that there was much controverted evidence, but he acknowledges that when this Court reviews a claim of insufficiency it will consider only the evidence favorable to the State and reasonable inferences that can be drawn therefrom, and that the conviction will be set aside only if there is a lack of evidence of probative value from which a trier of fact could reasonably infer that a defendant is guilty beyond a reasonable doubt, citing Rogers v. State, (1972) 154 Ind.App. 445, 290 N.E.2d 135; and Taylor v. State, (1972) 259 Ind. 25, 284 N.E.2d 775. The voluntary manslaughter statute provides:

"(a) A person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter, a class B felony.

(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter." Ind.Code § 35-42-1-3.

Regarding his claim about "sudden heat," appellant refers to the statutory definition of the crime prior to the 1977 amendment:

"a person who knowingly or intentionally kills another human being while acting under an intense passion resulting from grave and sudden provocation commits a class B felony.... The state is not required to prove intense passion resulting from grave and sudden provocation."

Appellant claims that the omission of the burden-of-proof clause in the current statute as amended suggests that the state now bears the burden of proof. Regardless of the burden of proof, he argues, there was no reliable evidence of sudden heat. Since the jury found him not guilty of murder by virtue of the voluntary manslaughter verdict, and since there was no evidence of sudden heat, if follows that the only correct verdicts could have been "innocent" or involuntary manslaughter, he contends. At best, he continues, the evidence revealed that he had merely had an opportunity to commit the crime, and this created only a suspicion of guilt. The jury, he asserts, appeared to be unable to determine whether defendant or another man had killed the victim and in convicting him showed "an inclination to a compromise verdict," thereby denying him his legal presumption of innocence. Finally, defendant asserts that the residue of evidence fails to meet the requirement that each material allegation be supported by substantial evidence of probative value.

Appellant is mistaken in considering sudden heat a constituent element of the crime of manslaughter. The statute...