Wade v. State

• Citation: 490 N.E.2d 1097
• Decision Date: 03 April 1986
• Docket Number: No. 1284S501,1284S501
• Parties: Herbert WADE, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1097

490 N.E.2d 1097

Herbert WADE, Appellant, v. STATE of Indiana, Appellee.

No. 1284S501.

Supreme Court of Indiana.

April 3, 1986.

Terry A. White, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Herbert Wade was convicted by a jury on June 22, 1984, of Murder of his two year old stepson. The Honorable William H. Miller sentenced him to fifty (50) years imprisonment. Wade now raises the following issues on direct appeal:

1. the trial court erred by denying a motion for change of venue due to pre-trial publicity;

2. the trial court erred by granting the State's motion for oral examination and impressions of Defendant's teeth;

3. the court erred by sending instructions into the jury room without rereading them;

4. the court erred by admitting gruesome photographs;

5. the court erred by admitting an officer's testimony regarding footprints;

6. the court erred by admitting Defendant's first statement made to police through a redacted transcript and his following two statements by tape recordings;

7. the court erred by imposing a manifestly unreasonable sentence.

Defendant, Herbert Wade, lived in Evansville, Indiana with his wife, Vicki Sanford Wade, his eleven (11) month old son, Joey, and his two year old stepson, Jeffery. Kelley Brantley, a friend of Mrs. Wade, lived with them periodically, and cared for the children on occasion. Defendant, his wife, and Kelley worked at various Burger Kings in Evansville.

On December 9, 1983 Vicki Wade and Kelley Brantley left for work at 5:00 p.m., while Defendant attended the children. Vicki and Kelley had not noticed any major injuries to Jeffery at this time with the exception of a light colored bruise on his inner thigh caused by a fall. At 8:00 p.m. Defendant knocked on a neighbor's door and asked her to help him because Jeffery had fallen and hit his head on an air conditioner. Mrs. Goodman, the neighbor, returned with Defendant and found Jeffery unconscious, his upper lip swollen, his pulse hard to detect, his jaw clamped so tightly shut she could not administer cardio-pulmonary resuscitation, his body badly bruised, and his back marked with a shoe imprint. When Goodman told Defendant to call an ambulance, he called his father instead. After a second request, Defendant finally called an ambulance.

Jeffery was unconscious when the paramedics arrived and had a low pulse and respiratory rate. The paramedics transported the boy immediately to the hospital and en route observed an abrasion on his forehead, numerous bruises, and dark purple markings around his genitalia.

Dr. Michael, the physician who attended Jeffery in the emergency room, classified Jeffery's condition upon arrival as critical due to a massive head injury. He described the boy's body as badly bruised, his respiratory rate abnormally slow, and noted the boy was unconscious. An intercranial monitor was placed in Jeffery's skull and medication administered in an attempt to reduce the swelling of his brain. The majority of bruises were fresh, including a large bruise over the genital area and a shoe imprint on the upper right buttock. Jeffery never responded to any medical treatment, and passed away when removed from the respirator on December 13, 1983.

Dr. John E. Pless, a forensic pathologist, testified that death was caused by brain swelling which forced the brain stem to be forced down into the opening of the spinal column, killing brain tissue. He also testified that a pattern wound discovered on the back of the child's head was like the print made by an athletic shoe. Michael Oliver, a police officer specializing in the area of footprint comparisons, testified that the imprints made on Jeffery's head matched the sole of a shoe belonging to Defendant. Dr. Pless referred the case to Dr. Samuel Standish, a forensic odontologist and professor of oral pathology for an opinion regarding what appeared to be bite marks across Jeffery's pubic area. Dr. Standish concluded that the injury was a human bite mark and based upon impressions made from Defendant's teeth, concluded that Defendant probably made the marks. Upon presentation of this evidence, the jury convicted Defendant of murder.

I

Appellant Wade's initial assignment of error is that adverse pre-trial publicity caused the community from which the jurors were chosen to be so prejudiced that he could not receive a fair trial. Consequently, he argues the trial court's denial of his Motion for Change of Venue was reversible error and an abuse of discretion. It is well established that for a defendant to show good cause necessary to warrant a discretionary change of venue, he must produce evidence of community bias or prejudice sufficient to convince the trial court he cannot obtain a fair trial in that county. We will not reverse a trial court in its judgment on this issue where there was no reason to believe that any juror was so affected by preconceived opinions as to have been unable to judge the defendant wholly on the law and evidence adduced at trial. Linder v. State (1985), Ind., 485 N.E.2d 73, 76. A fair trial can be held even though a juror might have entertained a preconceived opinion as to the defendant's guilt if the juror could lay aside his impression and render a verdict on the evidence presented in court. Linder, supra; Grimes v. State (1983), Ind., 450 N.E.2d 512, 517.

In response to Appellant's Motion for Change of Venue, the trial court recognized the case was widely publicized, but took the motion under advisement until trial when the prospective jurors could be questioned regarding their exposure to such publicity. The trial commenced six months later. Prior to commencement each prospective juror who remembered hearing or reading anything about the case was questioned individually by the court during voir dire. Of the twelve (12) jurors selected, most remembered no details regarding the case. Nonetheless, all of them stated they would be able to presume Defendant was innocent until proven guilty beyond a reasonable doubt by evidence adduced at trial. The record of voir dire demonstrates sufficient grounds supporting the trial court's conclusion that the jurors were able to set aside any preconceived notions of guilt and render a verdict based upon the evidence. Consequently, the trial court did not commit reversible error by denying Appellant's Motion for Change of Venue.

II

Appellant next argues that the trial court's granting of the State's Motion for Oral Examination and Impression of Defendant's Teeth without first finding probable cause violated his Fourth Amendment right against unreasonable searches and seizures. In addition, he asserts his Fifth Amendment right against self-incrimination was violated in that he was compelled to give incriminating evidence.

Prior to trial the State filed a Motion for Oral Examination and Impression of Defendant Wade's Teeth. Attached was an Affidavit of Probable Cause made out by Officer Steven Holder. The affidavit informed the court, inter alia, that during the autopsy of Jeffery Sanford the pathologist found marks on the child's groin which appeared to be bite marks. Accordingly, the State requested an oral examination and impressions of Defendant's teeth to help determine the source of the marks. After a hearing, the court granted the motion and ordered Defendant to submit to an oral examination and the taking of impressions.

Appellant's assertion that the trial court violated his Fifth Amendment right against self-incrimination by granting the motion is neither supported by any authority nor legal argument. Accordingly, Appellant has waived his right to have this argument addressed. Ind.R.App.P. 8.3(A)(7); Howard v. State (1985), Ind., 481 N.E.2d 1315. Nonetheless, we choose to address Appellant's contention. It is well settled that although self-incrimination protects a defendant from testimonial compulsion, it does not protect against compulsory submission to purely physical tests such as fingerprinting, body measurements, handwriting and voice exemplars. Kalady v. State (1984), Ind., 462 N.E.2d 1299, 1311. The latter acts are distinguishable from acts constituting testimonial compulsion in that they do not require an incriminating communicative act by a defendant. In Schmerber v. California, (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the United States Supreme Court held that compelling a defendant to submit to a blood test for reasons of determining intoxication did not constitute testimonial compulsion or a violation of the defendant's Fifth Amendment rights. In Schmerber, the Court addressed the defendant's Fifth Amendment claim as follows:

"In the present case, however, no such problem of application is presented. Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds." (emphasis added).

Schmerber, 384 U.S. at 765, 86 S.Ct. at 1832, 16 L.Ed.2d at 916. Likewise, in the instant case the oral examination and impressions made of Defendant's teeth, produced an incriminating product of compulsion, but were neither Appellant's testimony nor evidence relating to some communicative act or writing by Appellant and thus were not inadmissible on privilege grounds.

Appellant also argues that the oral examination and the taking of impressions was in violation of his Fourth Amendment right because probable cause...