Russell v. State, No. 180S15

• Docket Nº: No. 180S15
• Citation: 275 Ind. 679, 419 N.E.2d 973
• Case Date: May 01, 1981
• 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.

[275 Ind. 680]

Page 974

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;

[275 Ind. 681] (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 [275 Ind. 682] 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.

Page 975

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 [275 Ind. 683] 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) ...