Warrenburg v. State
| Decision Date | 05 July 1973 |
| Docket Number | No. 771S212,771S212 |
| Parties | Herman WARRENBURG, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Felson Bowman, Frederick J. Graf, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.
This is a direct appeal from a conviction of involuntary manslaughter. Herman Warrenburg was indicted on June 4, 1970, for the unlawful killing of his wife. After three continuances, a jury trial commenced on February 22, 1971. Appellant was found guilty and sentenced to the Indiana State Prison for one to ten years on March 3, 1971. A motion to correct errors was overruled on April 29, 1971. From the overruling of his motion to correct errors, Appellant instituted this appeal. Appellant specifies the following as error:
(1) The trial court erred in admitting into evidence an autopsy photograph of the deceased victim.
(2) There was insufficient evidence at trial to prove the commission of an 'unlawful act.'
(3) The trial court erred in allowing the prosecution to re-open its case-in-chief in order to prove venue.
Appellant's first allegation of error concerns the admission into evidence of a color photograph of the deceased victim which was taken after an autopsy was performed upon the body.
The photograph in question (State's Exhibit No. 2) is of a partially resewn corpse, nude from the waist up. The right arm of the corpse has been severed completely, the left arm has been re-attached with gaping sutures. Appellant contends that the photograph was irrelevant, cumulative, and calculated to inflame the jurors. Admittedly, the photograph is gruesome, but that fact alone does not render it inadmissible. Torrence v. State (1971), 255 Ind. 618, 266 N.E.2d 1. The real inquiry into the admissibility of photographs is whether or not they are relevant to the issues in the case. New v. State (1970), 254 Ind. 307, 259 N.E.2d 696. A jury should have before it all relevant evidence, and the test to be applied is a determination of whether the evidence tends to prove a material issue in the case. Wilson v. State (1966), 247 Ind. 680, 221 N.E.2d 347. The surgeon who performed the autopsy, Dr. Benz, testified generally as to various bruises about the victim's body and specifically as to bruises about the left ear. The State contends that the photograph was competent to depict the victim's wounds. However, it cannot be said that the autopsy incisions were wounds inflicted by the defendant-appellant. On preliminary questioning by defense counsel, Dr. Benz testified that the decedent did not appear in the photograph as she did prior to the autopsy. The picture does not depict the victim in her natural state immediately after her death. Prior to the introduction of State's Exhibit No. 2, the prosecution had entered into evidence a black and white photograph of the deceased taken before the autopsy. This photograph properly depicted the victim immediately following her death. Dr. Benz identified the body there depicted and testified in detail as to the wounds found on an external examination of the victim. He further testified that in his opinion the victim died as a result of an acute subdural hematoma of the brain, caused by a blow or impact to the head. The above evidence is clearly relevant to show the cause of death. However, we can find no relevancy in allowing into evidence a graphic portrayal of an autopsy. The pathologist's surgical incisions are not relevant to a material issue in the case. The only part of State's Exhibit No. 2 which is relevant to the cause of death is that part of the photograph showing the bruises on the victim's skull. Only that part of the photograph which is relevant should have been admitted into evidence. We believe that the relevant portion of the aforementioned photograph is obscured by irrelevancy and should have been denied admission into evidence. Whether or not this error can be held harmless depends upon the sufficiency of other evidence of appellant's guilt.
Involuntary manslaughter is defined in IC (1971), 35--13--4--2, Ind.Stat.Ann. § 10--3405 (Burns' 1972 Supp.), as follows:
Appellant contends that there was insufficient evidence at trial to support his conviction. In particular, the defendant-appellant alleges that the...
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Stephenson v. State
...525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999); Loy v. State, 436 N.E.2d 1125, 1128 (Ind.1982); Warrenburg v. State, 260 Ind. 572, 574-76, 298 N.E.2d 434, 435-6 (1973); cf., Kiefer v. State, 239 Ind. 103, 116-18, 153 N.E.2d 899, 904-05 We do consider these close-up photographs viewing......
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...this respect we think that the photographs, Exhibits E-13 and E-14, are similar to the autopsy photography in Warrenburg v. State, (1973) 260 Ind. 572, 574, 298 N.E.2d 434, 435. In Warrenburg we held that it was error to admit most of an autopsy photograph which showed the surgical incision......
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Meisberger v. State, 53A01-9307-CR-243
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