Turben v. State

• Decision Date: 19 April 2000
• Docket Number: No. 13S00-9810-CR-603.,13S00-9810-CR-603.
• Parties: Robert TURBEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

726 N.E.2d 1245

Robert TURBEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 13S00-9810-CR-603.

Supreme Court of Indiana.

April 19, 2000.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Rosemary L. Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

RUCKER, Justice

A jury convicted Robert Turben of murder in the death of his wife. The trial court sentenced him to sixty-five years imprisonment. In this direct appeal Turben contends his conviction should be reversed because the trial court erred by admitting an autopsy photograph into evidence. We agree the trial court erred. However the error was harmless and we therefore affirm.

The record shows that Turben and his wife Jenny had a turbulent marriage, separating and reuniting several times. In October 1997, Jenny and the parties' three minor children moved out of the marital home and began living with a relative. Deciding that she would tell Turben of her plans to file for divorce, Jenny took the children to the marital residence for dinner on November 3, 1997. Later that evening, Turben returned the children to the home of Jenny's relative. Asked about Jenny, Turben explained that the couple had engaged in an argument and that Jenny had left the house walking. Friends and relatives began searching for Jenny and alerted the police that she was missing. The following day police questioned Turben about Jenny's disappearance. Although first claiming Jenny left the house alone after an argument the previous night, Turben ultimately admitted that he had strangled Jenny with a cord. He then accompanied officers to a cave in the Harrison Crawford Forestry where Jenny's body was discovered in a black canvas bag beneath a pile of rocks. The cord was still around her neck.

Turben was charged with murder and in due course the case was tried to a jury. In its case in chief the State called pathologist George Nichols who testified that he had performed an autopsy on Jenny and concluded that she died from strangulation. Specifically, the pathologist testified that the cord cut off the supply of oxygenated blood to Jenny's brain and caused unconsciousness and irreversible brain damage, resulting in death. To accompany the pathologist's testimony, the State sought to introduce several photographs taken during the autopsy. One of the photographs showed gloved hands manipulating a bloody mass with a probe. The mass purportedly represented the victim's head with the skin and bones cut open and peeled back to expose the interior of the victim's neck. Over Turben's objection the photograph was introduced into evidence. The jury convicted Turben as charged and the court sentenced him to sixty-five years imprisonment. This direct appeal followed.

Turben contends the trial court erred by admitting the autopsy photograph into evidence because its prejudicial impact on the jury outweighed its probative value. We review the trial court's admission of photographic evidence for an abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1028 (Ind.1999). Photographs that depict a victim's injuries are generally relevant and thus admissible. Harrison v. State, 699 N.E.2d 645, 648 (Ind.1998). The relevancy requirement also can be met if the photographs demonstrate or illustrate a witness' testimony. Id. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" Ind.Evidence Rule 403.

In this case the State seems to acknowledge the photograph is graphic. However, the State contends the photograph is relevant because it illustrates the pathologist's testimony concerning the cause of death, namely, strangulation. Assuming the photograph here is relevant, it is only marginally so. Our review of the record shows a bloody mass that barely resembles a human form. We doubt the jury was further enlightened concerning the cause of death by viewing this gruesome spectacle. This court has long held that photographs of a deceased victim during and after an autopsy is performed may be held inadmissible on grounds that they serve no purpose other than to arouse the emotions of the jury. Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982). Indeed autopsy photographs are generally inadmissible if they show the body in an altered condition. Allen v. State, 686 N.E.2d 760, 776 (Ind.1997), cert. denied, 525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667. This is so because "such a display may impute the handiwork of the physician to the accused assailant and thereby render the defendant responsible in the minds of the juror for the cuts, incisions, and indignity of an autopsy." Loy, 436 N.E.2d at 1128; see also, Warrenburg v. State, 260 Ind. 572, 574, 298 N.E.2d 434, 435 (1973)

(error to admit autopsy photograph which showed a partially resewn corpse, nude from the waist up, with the right arm of the corpse severed completely and the left arm re-attached with gaping sutures); Kiefer v. State, 239 Ind. 103, 112, 153 N.E.2d 899, 903 (1958) (reversible error to admit autopsy photographs showing hands and instruments of surgeon inside chest of victim). Given the gruesomeness of the photograph in this case, along with its marginal relevance, we conclude the photograph's prejudicial impact outweighed its probative value. Accordingly, the trial court erred by admitting the photograph into evidence.

However, not every trial error requires reversal. Errors in the admission or exclusion of evidence are to be disregarded as harmless error unless they affect the substantial rights of the party. Fleener v. State, 656...