Wilber v. State
| Decision Date | 05 March 1984 |
| Docket Number | No. 882,882 |
| Citation | 460 N.E.2d 142 |
| Parties | Randall WILBER, Appellant, v. STATE of Indiana, Appellee. S 295. |
| Court | Indiana Supreme Court |
Ronald K. Smith, Muncie, for appellant.
Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant-defendant, Randall Wilber, was convicted in a trial by jury of murder and received a sentence of thirty years. In this his first and direct appeal the claims are put forth that (1) the trial court erroneously admitted testimony regarding the medical history of the alleged victim, (2) the trial court erred in refusing to submit jury instructions on the lesser offenses of voluntary and involuntary manslaughter, and (3) the evidence was insufficient to convict.
The testimony supporting the verdict showed that appellant and two other young men were driving around in appellant's car, when they decided to rob Robert Disher at Disher's house. Appellant drove them there, and parked nearby, while the other two went up to the house and knocked on the door. When Disher answered, he was knocked down and his wallet was taken. The three then fled in appellant's car and divided the money from the wallet. Mr. Disher was found by police and emergency medical technicians lying unconscious on the floor inside the front door of his home. He had several bloody cuts to the head. Disher underwent surgery to remove a blood clot near his brain. He never regained consciousness and two weeks later died of post-operative meningitis and pneumonia.
Further evidence was produced that three or four days prior to this attack, appellant and one of the same young men had gone in appellant's car to Disher's home and had beaten and robbed him.
Dr. Benz, the forensic pathologist who performed the autopsy on Disher on September 18, 1981, testified as to his opinion of the cause of death. In the course of his testimony, Benz, over objection by the defense was permitted to testify that the medical reports of the treating physicians reflected Disher's age, time of death, and that a large blood clot overlying the brain on the right side of the head had been removed. Benz's opinion was that death was the result of meningitis and pneumonia which developed during coma following an operation to treat head injuries. Appellant contends that the pathologist's testimony which referred directly to the content of the medical reports of the treating physicians was inadmissible as hearsay. He argues that such reports would not qualify for admission as public documents. Starkey v. State, (1977) 266 Ind. 184, 361 N.E.2d 902. Even assuming that the reports would not so qualify, the testimony reflecting their factual content was nevertheless admissible in conjunction with the detailed findings of the witness who had performed the autopsy, as showing the basis for his own medical conclusions. Such medical reports are routinely relied upon by forensic pathologists in arriving at their opinions as to cause of death, and when presented to the trier of fact by such persons at a trial, in this form and manner, and for this purpose, testimony reflecting their content is not hearsay. Smith v. State, (1972) 259 Ind. 187, 285 N.E.2d 275. The ruling was correct.
Appellant next claims that the trial court committed error when jury instructions dealing with voluntary and involuntary manslaughter as lesser included offenses were refused. Appellant was charged pursuant to Ind.Code Sec. 35-42-1-1(2) with murder (felony) in that he "did ... unlawfully kill a human being, to-wit Robert Disher while committing a robbery, to-wit: While taking money from the said Robert Disher through the use of force." Voluntary manslaughter occurs when one "knowingly or intentionally kills another human being while acting under under sudden heat," Ind.Code Sec. 35-42-1-3; while involuntary manslaughter occurs when one "kills another human being while committing or attempting to commit: (1) A class C or class D felony that inherently poses a risk of serious bodily injury; (2) A class A misdemeanor that inherently poses a risk of serious bodily injury; or (3) Battery," Ind.Code Sec....
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Meisberger v. State, 53A01-9307-CR-243
...an autopsy as the basis for his own medical conclusions, the testimony reflecting that content is not hearsay. Wilber v. State (1984), Ind., 460 N.E.2d 142, 143. Moreover, the x-rays need not be admitted into evidence to ensure that a defendant is not deprived of a meaningful opportunity to......
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