Spencer v. State, 84S00-9704-CR-280

• Court: Supreme Court of Indiana
• Citation: 703 N.E.2d 1053
• Docket Number: No. 84S00-9704-CR-280,84S00-9704-CR-280
• Parties: Herschel SPENCER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Decision Date: 04 January 1999

Page 1053

703 N.E.2d 1053 Herschel SPENCER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 84S00-9704-CR-280. Supreme Court of Indiana. Jan. 4, 1999.

Page 1054

Jessie A. Cook, Terre Haute, for Appellant.

Jeffrey A. Modisett, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee.

SHEPARD, Chief Justice.

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;

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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.

Facts

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.

I. Evidence of Prior Batteries

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: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." 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

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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...