Thompson v. State

• Decision Date: 18 May 1993
• Docket Number: No. 49A02-9206-CR-269,49A02-9206-CR-269
• Citation: 613 N.E.2d 461
• Parties: Odie THOMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 461

613 N.E.2d 461

Odie THOMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9206-CR-269.

Court of Appeals of Indiana,

Second District.

May 18, 1993.

Kenneth T. Roberts, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

SHIELDS, Judge.

Odie Thompson appeals his conviction of murder, ¹ a felony. We affirm.

ISSUES

Thompson raises issues for our review which we reorder as:

1. Did the trial court err by denying Thompson's motion to suppress the statements he made to police after his arrest and the evidence seized during the search of his apartment?

2. Did the trial court err by admitting photographs of the crime scene?

3. Did the trial court err by refusing to allow a defense witness to testify?

4. Was there sufficient evidence to convict Thompson?

5. Did the trial court err by sentencing Thompson to the presumptive term for murder?

FACTS

In the early morning hours of July 28, 1990, Odie Thompson killed Roger T. Bell, an acquaintance with whom he had been drinking in Thompson's apartment earlier that evening. Thompson shot Bell in the head and dragged his body to the basement of Thompson's apartment building, where it was discovered the next day.

Thompson was tried by a jury, convicted of murder, and given the presumptive sentence of forty years. He appeals.

DISCUSSION

I.

Thompson first argues that the trial court improperly admitted statements Thompson made to police after he was arrested and improperly admitted items seized during the search of his apartment.

A.

After Thompson was arrested, he gave two statements to the police. ² He sought to exclude these statements on the ground that Police Detective Moore induced him to make the statements by telling him, "if I didn't cooperate with them and give them a statement I'd never see my family again." Record at 747. ³ He also asserted that before and during his statements and while the audio tape was not recording, he asked for and was denied an attorney.

Detective Moore testified that Thompson was advised of his right to counsel but never requested an attorney. He also denied telling Thompson that "he would never see his family again if he didn't tell [Moore] that he did it." Record at 370. Finally, the taped statements included Thompson's assertion that the statements were "given voluntarily and of [his] own free will," Record at 348, and that no "force, threats or promises" were made to induce him to make the statements. Id.

Before a confession is admitted into evidence, the State must prove beyond a reasonable doubt that the defendant knowingly and intelligently waived both his right to have an attorney and his right not to incriminate himself. Coates v. State (1989), Ind., 534 N.E.2d 1087, 1092; O'Neill v. State (1992), Ind.App., 597 N.E.2d 379, 384, trans. denied. Also, a confession which is procured by means of threats, physical abuse, or promises of lenient treatment cannot be admitted into evidence. Smith v. State (1989), Ind., 543 N.E.2d 634, 637; O'Neill, 597 N.E.2d at 385. In our review of the trial court's determination, we consider any uncontroverted evidence presented by the defendant, but where conflicting evidence exists, we are bound to view only that evidence which supports the trial court's determination that the confession was given voluntarily. Smith, 543 N.E.2d at 637; O'Neill, 597 N.E.2d at 385. If there is substantial evidence that the defendant gave the confession voluntarily, we will affirm. O'Neill, 597 N.E.2d at 385.

The evidence here is in conflict, and Detective Moore's testimony provides substantial evidence supporting the trial court's conclusion that Thompson voluntarily gave police two statements regarding the homicide. Given our standard of review, the trial court did not err in ruling on the voluntariness of Thompson's statements. See also Neal v. State (1988), Ind., 522 N.E.2d 912, 913 (conflicting testimony is insufficient to show defendant's confession was induced).

B.

On July 28, 1990, the day Bell's body was discovered, apartment # 170 in the Crystal Glen Apartments, 3307 East 39th Street, Indianapolis, was leased to Thompson and Anderson. Detective Moore testified that the management of the apartment building advised him that Thompson had very recently vacated apartment # 170; accordingly, he accompanied Annette Fields, the assistant manager of the apartment complex, when she entered the apartment. ⁴ At that time he observed spots of what appeared to be blood on the carpet and walls. Based on this information, Detective Moore obtained a warrant on July 31, 1990, searched the apartment, and seized a bloodied section of carpet and the underlying pad, blood splatters from the walls, a bloodied mop and sweeper, and various cleaning agents. Detective Moore also photographed and videotaped the interior of the apartment. Thompson was arrested on August 15, 1990.

Thompson argues that the warrant was invalid on its face because the omission of a specific list of the items to be searched for and seized gave the executing officers unbridled discretion. See Hester v. State (1990), Ind.App., 551 N.E.2d 1187, 1190 (A search warrant which gives the executing officer discretion as to the items to search for and seize is invalid.).

The subject warrant describes the property to be searched for and seized as the building and apartment where Thompson lived. However, it is apparent that this description is a typographical error. The affidavit in support of the search warrant, affixed to and incorporated in the search warrant, enumerates items which Detective Moore sought to seize: hair fibers, blood, guns, personal belongings of victim Roger Thomas Bell, and blanket fibers. Reading the warrant and the incorporated affidavit together, the specific list of items contained in the affidavit circumscribed the executing officer's discretion. Thus, the trial court properly determined that the warrant was not invalid on its face. See also Clifford v. State (1985), Ind., 474 N.E.2d 963, 970 (typographical error in search warrant concerning date of issuance did not render warrant defective).

Thompson also argues the warrant was defective because the affidavit fails to specify the category of property which was to be searched for and seized. IC 35-33-5-2(a) requires only that the affidavit describe the "house or place to be searched and the things to be searched for, ... alleging substantially the offense in relation thereto...." A perusal of the affidavit reveals the place to be searched, the items to be searched for, and the statement that these items "pertain to [Bell's] homicide that occurred [on those premises]." Record at 65.

Also without merit is Thompson's argument that the affidavit affixed to the search warrant is overbroad. The general request for a "Search Warrant to recover any and all evidence, which pertains to the Homicide" is limited by the specific description of the property to be searched for as "Hair Fibers, Blood, Guns, Personal belongings of victim ..., [and] Blanket Fibers." Record at 752. The items seized were properly admitted into evidence.

II.

Thompson next argues that the trial court erred by admitting the State's Exhibits 1, 5, and 7 because they were cumulative to two other photographs of the crime scene.

Although photographs of a deceased victim are gruesome by their very nature, they are properly admitted into evidence for the purpose of showing the nature and extent of the wounds, to illustrate the scene of the crime, and to prove the cause of death. Wagner v. State (1985), Ind., 474 N.E.2d 476, 490; Crane v. State (1978), 269 Ind. 299, 303, 380 N.E.2d 89, 92. Pictures are relevant to prove the cause of death even if it has been proven through testimony of other State's witnesses. Wagner, 474 N.E.2d at 490. The trial court's decision to admit photographs into evidence will be reversed only upon a showing of an abuse of discretion. Id.

The photographs, although somewhat repetitive and cumulative, were relevant to illustrate the scene of the crime and the wounds which Bell received. Thompson has failed to show that the trial court abused its discretion by admitting these photographs; thus there is no error.

III.

Thompson argues that the trial court erred when it refused to allow Armelda Thomas, a defense witness, to testify that she knew Bell and his wife, and that two days prior to his death Bell told her that he believed his wife was "trying to get somebody to do something to" him. Record at 605. Thompson argues that this testimony was admissible to show Bell's state of mind prior to his death, and that the testimony made Bell's wife a viable suspect. ⁵

If legally relevant, statements offered to show the victim's state of mind prior to the crime are admissible. Lock v. State (1991), Ind., 567 N.E.2d 1155, 1159, cert. denied, --- U.S. ----, 112 S.Ct. 1686, 118 L.Ed.2d 400. ⁶ The question here is whether the victim's state of mind is relevant. We accord the trial court discretion in ruling on the relevancy of evidence. Hunter v. State (1991), Ind., 578 N.E.2d 353, 357. Thomas's testimony, if it had been allowed, would have revealed that the victim may have felt threatened by or been in fear of his estranged wife. Even if this was Bell's state of mind before his death, it does not relate to his relationship with Thompson or to the circumstances surrounding his death, and thus, at most, was only very marginally relevant. The trial court did not abuse its discretion in excluding Thomas's testimony. ⁷

Neither did the trial court err in excluding the evidence on the ground it was relevant to establish the crime was committed by a third party. The standard for introducing evidence showing a third party committed the charged crime is that "such evidence must do more than cast suspicion or raise a conjectural inference that a third party...