Spencer v. State
| Decision Date | 04 January 1999 |
| Docket Number | No. 84S00-9704-CR-280,84S00-9704-CR-280 |
| Citation | 703 N.E.2d 1053 |
| Parties | Herschel SPENCER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Jessie A. Cook, Terre Haute, for Appellant.
Jeffrey A. Modisett, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee.
A jury found appellant Herschel Spencer guilty of murdering Tammy Carlyle. Spencer was sentenced to sixty-five years in prison.
Spencer now raises four issues on direct appeal:
I. Whether the trial court erred by permitting the State to introduce evidence of Spencer's prior batteries against Carlyle II. Whether the court erred by admitting Carlyle's prior statements regarding her fear of Spencer;
III. Whether the court erred by admitting three autopsy photographs; and
IV. Whether the court erred by giving a final instruction about the batteries.
Spencer and Carlyle had a long-term relationship but never married. They had two children. Their relationship was marked by several incidents of violence which included the following reported incidents: (1) Spencer struck Carlyle with a fishing pole which resulted in a police report but no charges; (2) Spencer beat Carlyle with a fiberglass tent pole and burned her chest with a curling iron resulting in a battery conviction; and (3) Spencer struck Carlyle and choked her, leaving visible hand prints on Carlyle's neck, resulting in a second battery arrest but no conviction.
On several occasions, Carlyle spoke of fear that Spencer would harm her, including an incident in which she reported Spencer told her she "needed to be dead," but that "a bullet was too good for" her and that she "just needed to be tortured." (R. at 1134-35.) Carlyle also spoke of a second incident in which Spencer threatened to kill her and her sister and "bury them under a board." (R. at 882.) Days before Carlyle's body was discovered, the police were called to Carlyle's home because Spencer had tackled her and attempted to choke her, but Carlyle reported to the investigators that she could not report the crime because Spencer had threatened to kill her and bury her under a board.
Upon a report that Carlyle was missing, the Terre Haute Police commenced a search and discovered her body buried in a shallow wooded area called the Jungle. Carlyle's body was in an advanced stage of decomposition. A later autopsy revealed that the cause of Carlyle's death was consistent with manual strangulation. One witness testified at trial that she observed Spencer in the Jungle, near the spot where Carlyle's body was found, with dirt on his hands, shirt, and pants. Spencer's neighbor reported that Spencer had asked him for a shovel near the time of Carlyle's murder. Spencer asked another person to provide him with an alibi for the night Carlyle was murdered. Finally, Spencer admitted to a cellmate that he had killed Carlyle by means of strangulation and buried her body in a shallow grave in the Jungle.
Spencer claims that the trial court erred in allowing the State to introduce evidence of prior batteries against Carlyle. The trial court allowed the State to introduce evidence from and details of three prior batteries, specifically: (1) Carlyle's report to police that Spencer hit her with a fishing pole; (2) Spencer's battery conviction for beating Carlyle and burning her with a curling iron; and (3) Spencer's arrest for strangling Carlyle.
Admission of evidence about prior bad acts is restrained by Indiana Rule of Evidence 404(b), which states in relevant part: Such evidence is also subject to Evidence Rules 401 and 403, which provide that such evidence must be relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice to the defendant.
We review admissibility of prior bad acts under the test of Hicks v. State, 690 N.E.2d 215 (Ind.1997). 1 The Hicks test states that "the standard for assessing the admissibility of 404(b) evidence in Indiana is: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403." Id. at 221.
The State alleges that the prior bad acts were offered to show Spencer's motive and his identity, both of which are proper purposes under Rule 404(b). We agree. This Court has held that where a relationship between parties is characterized by frequent conflict, evidence of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime--"hostility." Id. at 222; see also McEwen v. State, 695 N.E.2d 79 (Ind.1998).
In this case, the prior batteries are probative of the relationship between Spencer and Carlyle and his hostility toward her because the batteries were committed against her. The record of batteries shows a pattern of conflict pointing to the motive of hostility, thereby passing the first prong of the Hicks test.
Second, the evidence may be excluded if the prejudicial impact outweighs its probative value. Hicks, 690 N.E.2d at 223; Ind.Evidence Rule 403. Evidence of prior bad acts speaking to the identity of the killer is highly probative, as in this case where the identity of the killer was the main item of contention.
The probative value of the evidence may lose force, however, if too much time has elapsed between the prior acts and the crime charged. We have upheld the admission of a prior incident that occurred only three months before the killing because it retained its probative force, but we have also noted that evidence of an assault on a victim that took place more than three years before the charged crime was of "low probative value." McEwen, 695 N.E.2d at 88. In the case at bar, two of the three incidents admitted happened three years before the murder. The length of time between the charged crime and those two acts is too long, diminishing the probative value of the evidence. On the other hand, the remaining report of battery by attempted strangulation occurred only two years prior to the murder and has a higher probative value. 2
We are inclined to think this evidence should not have been admitted, but cannot say that the trial court abused its discretion. Moreover, the other evidence presented was sufficiently compelling that admission of this evidence did not deprive Spencer of his substantial rights. Ind.Trial Rule 61.
Spencer claims that the trial court erred by permitting the State to elicit testimony about statements the victim made to officers investigating the batteries and to other persons regarding her fear of and interactions with him. Spencer claims that these statements constitute inadmissible hearsay. Generally, hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," Evid.R. 801(c), and is not typically admissible, Evid.R. 802.
The State claims that the police officers' account of what the victim had said to them was not hearsay because it was not offered to show the truth of the matter asserted but instead to show the steps the investigating officer took. 3 We have held that admission of a victim's statements through the testimony of a police officer was improper when the sole purpose was claimed to be showing the steps in the investigative process. Owens v. State, 659 N.E.2d 466, 476 (Ind.1995) (). While the State may offer testimony to show the steps of an investigation, the testimony of the officers should be limited to that specific purpose. Id. Because the statements made by the police in this case were used only to prove the truth of the matter asserted, they constitute hearsay.
While Spencer's hearsay contentions have merit, whether they warrant reversal is another matter. In light of his presence near the victim's burial site, his request to borrow a shovel, his plea for a fabricated alibi, and his admissions to a cellmate, the hearsay error does not warrant a reversal of Spencer's conviction. T.R. 61.
The trial court admitted three autopsy photographs over Spencer's objection. Exhibits 21 and 22 show Carlyle's body in an advanced stage of decomposition, one from an angle displaying the victim's missing right arm. Exhibit 23 shows a close up of the victim's interior chest wall displaying the scar caused by the curling iron burn. Spencer now claims that the prejudicial impact of the photographs outweighs any probative value they may have. He further contends...
To continue reading
Request your trial
-
Stephenson v. State
...value. Wright v. State, 730 N.E.2d 713, 720 (Ind. 2000) (citing Harrison v. State, 699 N.E.2d 645, 647 (Ind.1998)), Spencer v. State, 703 N.E.2d 1053, 1057 (Ind.1999). Relevant evidence is evidence that has "any tendency to make the existence of any fact that is of consequence to the determ......
-
Mitchell v. State
...gruesome in nature, are admissible if they act as interpretative aids for the jury and have strong probative value. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind.1999); Robinson v. State, 693 N.E.2d 548, 553 The challenged photographs depicted various parts of Emporia's body from different a......
-
Corbett v. State
...gruesome in nature, are admissible if they act as interpretative aids for the jury and have strong probative value. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind.1999); Robinson v. State, 693 N.E.2d 548, 553 Swingley v. State, 739 N.E.2d 132, 133 (Ind.2000). Autopsy photos often present a un......
-
Camm v. State
...victim may be admitted to show the relationship between the parties and motive for committing the crime — `hostility.'" Spencer v. State, 703 N.E.2d 1053, 1056 (Ind.1999). Neither party has cited to this court, nor has our own research revealed, any Indiana case that has discussed the admis......