Swingley v. State, 18S00-9905-CR-271.

• Docket Nº: No. 18S00-9905-CR-271.
• Citation: 739 N.E.2d 132
• Case Date: December 01, 2000
• Court: Supreme Court of Indiana

739 N.E.2d 132

James SWINGLEY, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee

No. 18S00-9905-CR-271.

Supreme Court of Indiana.

December 1, 2000.

739 N.E.2d 133

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

DICKSON, Justice

The defendant, James Swingley, was convicted of murder¹ for the November 12, 1996, killing of Brian Insco in Muncie, Indiana. The defendant's one claim on appeal is that three autopsy photographs were erroneously admitted into evidence thereby infringing his right to a fair trial.

The defendant's claim focuses on three slides in a ten-slide presentation labeled collectively as State's Exhibit 13. Record at 594. These slides were projected on a screen during the pathologist's testimony. The defendant argues that the probative value of the slides was outweighed by their prejudicial effect. Because the admission and exclusion of evidence falls within the sound discretion of the trial court, this Court reviews the admission of photographic evidence only for abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1028 (Ind.1999); Amburgey v. State, 696 N.E.2d 44, 45 (Ind.1998). Relevant evidence, including photographs, may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403; Byers, 709 N.E.2d at 1028. "Even gory and revolting photographs may be admissible as long as they are relevant to some material issue or show scenes that a witness could describe orally." Amburgey, 696 N.E.2d at 45; see also Byers, 709 N.E.2d at 1028. Photographs, even those 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 (Ind.1998).

The defendant does not dispute that this is the standard of review but points to Allen v. State, 686 N.E.2d 760 (Ind.1997), cert. denied, 525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999), for the proposition that "autopsy photographs are generally inadmissible if they show the body in an altered condition." Id. at 776. When a body is altered for a photograph, the concern is that the handiwork of the physician may be imputed to the accused assailant and "`thereby render the defendant responsible in the minds of the jurors for the cuts, incisions, and indignity of an autopsy.'" Id. (quoting Loy v. State, 436 N.E.2d 1125, 1128 (Ind.1982)). While this is the general rule, we have recognized exceptions. In Fentress v. State, 702 N.E.2d 721 (Ind.1998), we held two photographs,...