Vaden v. State

• Decision Date: 13 December 1978
• Docket Number: No. 278S29,278S29
• Citation: 383 N.E.2d 60,270 Ind. 29
• Parties: Carl A. VADEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 60

383 N.E.2d 60

270 Ind. 29

Carl A. VADEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 278S29.

Supreme Court of Indiana.

Dec. 13, 1978.

Richard E. Sallee, White, Johnson, LeMay & Sallee, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Carl A. Vaden, was tried by jury and was convicted of second-degree murder. He now asserts that uncorrected errors of law occurred at trial and that the verdict was not supported by sufficient evidence. The issues before us in this appeal can be consolidated as follow:

1. Did the trial court err in overruling the defendant's motion to suppress his confession?

2. Did the trial court err in allowing the introduction into evidence of certain photographs of the deceased?

3. Did the trial court err in refusing to give certain of defendant's tendered instructions?

4. Did the trial court err in overruling the defendant's motion for judgment on the evidence?

5. Was the verdict supported by sufficient evidence on the element of malice?

Charles White, the deceased, was twenty-one months old on the date of his death. The facts most favorable to the state show that Renee White, Charles White's mother, had left Charles in the care of the defendant while she went to the grocery. During her absence, the defendant, who had become irritated by the baby's crying, whipped Charles with a belt, grabbed him, shook him, and pushed him against the side of a dresser. After Charles's head hit the dresser, he stopped crying. The defendant at first placed him on the edge of the bed and later transferred him to the baby pen. When Renee White came home, she asked the defendant what was wrong with Charles. The defendant replied that Charles was sleeping. Renee attempted to rouse the baby, and when she failed, she summoned an ambulance. A police officer who reached the scene before the ambulance noted that Charles was still alive but unconscious when he left for the hospital.

Charles was taken to the hospital where personnel failed to revive him. An autopsy was performed which disclosed severe bruises all around Charles's head and body; his right arm was hanging out of place dislocated; his left arm was broken. In the opinion of the doctor performing the autopsy, Charles White died as a result of multiple injuries. Renee testified that when she left for the grocery store, Charles had a slight cold, but was otherwise fine.

I.

The defendant argues that his confession should have been suppressed because the confession was elicited from him at a time when he was in pain and in need of medication and because the police made threats to him and offered promises of immunity and medical treatment in exchange for the confession. We have reviewed the record, and we find that the defendant acknowledged that he had been advised of and knew his rights and that no threats or inducements had been offered him. We shall not discuss the voluntariness of the defendant's confession further because the defendant has waived any theoretical error by testifying to substantially the same facts as those contained in his confession. See Vasquez v. State, (1970) 254 Ind. 472, 260 N.E.2d 779; Greer v. State, (1969) 252 Ind. 20, 245 N.E.2d 158; MacGregor v. State, (1967) 249 Ind. 195, 231 N.E.2d 241. In his testimony, the defendant admitted that he struck and shook the child, and he also expressed remorse over his actions. The trial court did not err in admitting the defendant's similar confession.

II.

Photographs of the deceased baby were shown to the jury over the defendant's objection. The photographs illustrated the child's injuries. Since relevancy is the controlling question to be answered regarding the propriety of admitting photographs into evidence, White v. State, (1978) Ind., 381 N.E.2d 481, we must look to the testimony offered to determine whether a witness was permitted (without objection) to describe the objects or scenes photographed. See Pierce v. State, (1970) 253 Ind. 650, 256 N.E.2d 557. The record includes much description of the baby's bruises and limbs; both lay and medical testimony were admitted. The physician who performed the autopsy identified and explained each photograph. There was no error in the admission of the photographs. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Carroll v. State, (1975) 263 Ind. 696, 338 N.E.2d 264.

III.

Next the defendant argues that the trial court erred in refusing to give three tendered instructions. The first instruction which was refused (Defendant's Tendered Final Instruction Number 1) concerned circumstantial evidence and the drawing of inferences. The court gave an instruction which was very thorough on the subject of circumstantial evidence; that instruction stated that the evidence must "point so surely and unerringly to the guilt of the defendant, as to exclude every reasonable hypothesis of his innocence." Since the contents of the instruction were adequately covered in another instruction, the trial court did not err in refusing the defendant's instruction. Sulie v. State, (1978) Ind., 379 N.E.2d 455; Hackett v. State, (1977) Ind., 360 N.E.2d 1000.

The trial court also refused to give Defendant's Tendered Final Instruction Number 2. That instruction dealt with the element of malice. As part of the instruction, defendant proffered the following words: "The use of a deadly weapon may be sufficient to infer malice. And, a belt is not per se a deadly weapon." The trial court sustained the state's objection to the instruction on the grounds that the instruction was repetitive of other court instructions on malice and that the reference to a belt being Per se a deadly weapon was improper. We agree. The jury was adequately instructed upon the element of malice by the content of other court instructions. Sulie v. State, supra; Hackett v. State, supra. Moreover, by isolating the belt specifically within the instruction, the defendant would have invaded the province of the jury as a fact-finding body. See Bowen v. State, (1920) 189 Ind. 644, 128 N.E. 926; Barker v. State, (1874) 48 Ind. 163. Even if the defendant were to argue that the instruction was technically correct, the terminology "deadly per se" would likely mislead the jury; therefore, the instruction was properly refused. See Deilks v. State, (1895) 141 Ind. 23, 40 N.E. 120.

The Defendant's Tendered Final Instruction Number 3 read:

"If you find in your deliberations that the defendant, Carl A. Vaden, is guilty only of using excessive means of punishment of a child, which excessive means brought about the death of that child, then you must find that the defendant is guilty of involuntary manslaughter."

The trial court denied the giving of the instruction. The court...