Wesby v. State

• Decision Date: 16 March 1989
• Docket Number: No. 18S00-8802-CR-268,18S00-8802-CR-268
• Citation: 535 N.E.2d 133
• Parties: Otis Lee WESBY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 133

535 N.E.2d 133

Otis Lee WESBY, Appellant, v. STATE of Indiana, Appellee.

No. 18S00-8802-CR-268.

Supreme Court of Indiana.

March 16, 1989.

Jack Quirk, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Felony Murder, for which he received a sentence of fifty (50) years.

The facts are: In early February of 1987, appellant's friend, Vincent Layne, asked him to procure a handgun. On February 9, 1987, appellant went to the Muncie, Indiana home of 73-year-old Bessie Allen, his father's former girlfriend, who had known appellant since early childhood. Believing Mrs. Allen kept a pistol concealed in her bedroom, appellant pried the screen door open, entered the house, and proceeded to find a .22 caliber revolver in a bedroom drawer.

Before appellant managed to leave the house, Mrs. Allen returned home carrying bags of groceries. When she discovered appellant inside the house, she asked him if he had pried open her door. He responded in the negative. She put down the groceries and started to reach for a baseball bat in the corner of the room. Appellant then shot her in the head with the revolver. Mrs. Allen appeared still to be reaching for the bat, so appellant shot her in the head a second time and pushed her over onto the floor. Appellant then left the house and two or three days later delivered the pistol to Layne, telling him to "be cool, because I shot this lady with it." The victim, who had been "breathing pretty hard before [appellant] left" her house, was found dead by a friend two days later. An autopsy revealed she had bled to death from two gunshot wounds to the head.

Appellant contends the trial court erred in denying his motion to suppress and in admitting into evidence his statements made to police and his videotaped confession. Appellant claims his statement confessing to the murder was coerced by physical abuse and by threats regarding the death penalty. He testified at the suppression hearing that a police officer kicked him repeatedly in the shins and told him he would be free to go if he confessed he killed the victim in self-defense. At the trial, appellant's girlfriend's mother testified he lived in her home, and she had observed knots on his lower legs following his first visit to the police.

The voluntariness and admissibility of a confession depend upon questions of fact which are to be resolved by the trial court. Bevill v. State (1985), Ind., 472 N.E.2d 1247. On appeal, the trial court's finding of voluntariness will not be disturbed as long as there exists substantial evidence to support the ruling. Jones v. State (1984), Ind., 464 N.E.2d 1283.

In the case at bar, the police explained to appellant his rights from a Miranda waiver form. Appellant signed the form to acknowledge he understood his rights but refused to sign the waiver provision. He then began to ask the officers questions, and when he learned the death penalty was within the realm of possible sentences, he decided to sign the waiver form and give a statement. When questioning is reinitiated by a defendant who has previously invoked his right to remain silent, a resulting confession is admissible. Moore v. State (1986), Ind., 498 N.E.2d 1.

Moreover, all the officers involved in appellant's interrogation testified he was not threatened with the death penalty nor promised any lessened punishment. They all testified in addition that appellant was not physically assaulted nor coerced in any way. The trial court thus had ample evidence to support his ruling that appellant's confession was made voluntarily. The admission of appellant's statements to police was not error.

Appellant contends the trial court erred in overruling his objection to a question posed to Muncie Police Lieutenant Norman Irelan. He was asked, regarding his investigation at the victim's home, if between his first and second visits he saw evidence that someone had been there. The witness replied, "No."

Appellant argues the question was cumulative and called for speculation as well as characterization of the evidence already elicited by the prosecutor. The admission, however, of cumulative evidence is within the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent a showing of abuse of discretion. Hunter v. State (1986), Ind., 492 N.E.2d 1067. Thus an appellant, to obtain reversal, must affirmatively demonstrate how the erroneously admitted testimony was prejudicial to his substantial rights. Wagner v. State (1985), Ind., 474 N.E.2d 476.

In the case at bar, appellant fails to show how he was harmed by Lieutenant Irelan's indication that the victim's house did not appear to have been disturbed between his first and second visits. We accordingly find no ground for reversal in its admission.

Appellant contends the trial court erred in admitting over his objection State's Exhibits U, V, W, EE, and GG. Exhibits U, V, and W are photographs of the victim taken at the crime scene; Exhibits EE and GG are photographs taken of the victim during the autopsy conducted to determine her cause of death. Appellant maintains the probative value of the photographs is outweighed by their "grossness" and inflammatory nature and that he was prejudiced thereby.

The admission of the photographs is within the discretion of the trial court, whose ruling we will not disturb except for abuse of that discretion. Fozzard v. State (1988), Ind., 518 N.E.2d 789. That photographs depict gory, revolting, or inflammatory details of the crime is not sufficient basis for reversal, unless they are without relevance to any material issue. Photographs are generally admissible as long as they depict the subject of testimony which would be admissible if related orally by a witness. Id.

Of the photographs at issue here, the first three depict the victim as she appeared when she was discovered and examined by police at the murder scene. The other two demonstrate the trauma inflicted to the victim's head by the bullets' passage and illustrate the pathologist's testimony as to the cause of death. Thus, although gruesome, their admission was not error.

Appellant contends the trial court erred in admitting over his objection State's Exhibits HH, II-1, and II-2. Exhibit HH consists of several rounds of .22 caliber ammunition, while II-1 and II-2 consist of a .22 caliber revolver and the white sock in which it was concealed, respectively. Appellant argues that no proper foundation was laid for their admission because they were not connected to him and to the crime.

In the instant case, Delaware County Coroner Jack Stonebraker, who also worked as an investigator for the prosecutor's office, testified he obtained the pistol hidden within the sock and the ammunition from Reggie Bragg, who had bought it for $20 from Vincent Layne, who in turn had obtained it from appellant two or three days after the murder. Prior to Stonebraker's testimony, Layne and Bragg both testified as to their respective dealings with the pistol, and each...