Wiles v. State

• Decision Date: 07 July 1982
• Docket Number: No. 581S126,581S126
• Citation: 437 N.E.2d 35
• Parties: Gary Lee WILES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 35

437 N.E.2d 35

Gary Lee WILES, Appellant, v. STATE of Indiana, Appellee.

No. 581S126.

Supreme Court of Indiana.

July 7, 1982.

James H. Voyles, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Dan S. LaRue, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged on a two-count indictment. Count I was for Burglary and Count II was for Attempted Rape. He was tried before a jury and convicted on both counts. He was sentenced to thirty years imprisonment on each count, the terms to run concurrently.

The facts, construed in the light most favorable to the State, are these. On the night of July 15, 1979, near the hour of 11:00 P.M., the victim, a resident of an Indianapolis apartment complex, was taking a shower when she sensed the presence of someone else in the bathroom. She threw open the shower curtain and found a man wearing a ski mask and carrying a knife in the room. She struggled with the man and managed to rip off the ski mask. Then she stopped struggling with the intruder and began to try to reason with him and persuade him to leave. He in turn began to fondle her breasts and genital area and also threatened to kill her because she had seen his face. At this point the victim resumed struggling with her assailant. The assailant abruptly broke off the attack and left the apartment when the victim received a cut on the hand in the struggle. When the victim attempted to call police she found the telephone cord in her bedroom had been cut, whereupon she used a telephone in another room to call police. She later discovered money from her wallet and jewelry that she had left on the dresser in her room were missing. At trial the victim positively identified appellant as her assailant.

Appellant claims the trial court erred in admitting over his objection a shirt alleged to have belonged to him. The shirt was shown to the prosecutrix, who testified it was similar to the shirt worn by her assailant. Another witness who testified as to details of a rape allegedly perpetrated upon her by appellant testified it was the shirt he wore during the assault upon her. Still another witness identified the shirt as one loaned to her by appellant after the rape and attempted rape occurred, thus connecting the shirt to appellant. Appellant now argues the shirt should not have been admitted into evidence because it is irrelevant and immaterial.

Evidence is relevant if it is material to an issue in the case and if it tends to make a desired inference more probable. Smith v. State, (1981) Ind., 419 N.E.2d 743; Turpin v. State, (1980) Ind., 400 N.E.2d 1119; Larkin v. State, (1970) Ind., 393 N.E.2d 180. Additionally the trial court is accorded wide latitude in determining whether or not proffered testimony is relevant. Begley v. State, (1981) Ind., 416 N.E.2d 824; Turpin, supra; Misenheimer v. State, (1978) 268 Ind. 274, 374 N.E.2d 523. In the case at bar we see no abuse of discretion by the trial court. Proof of the fact the shirt worn by the assailant was the same shirt or was even similar to a shirt owned by appellant tends to make the inference that appellant was the assailant more probable.

Appellant emphasizes the prosecutrix never testified the shirt in question was the one worn by her assailant but rather only testified, "It looks similar to the one used in my apartment ...." In Johnson v. State, (1980) Ind., 400 N.E.2d 132, the prosecutrix stated a knife linked to the defendant was similar to one used against her, though she could not say for sure it was the same knife. We held the knife admissible as evidence and observed: "That the connection with the crime is inconclusive affects the weight of the evidence but does not render it inadmissible." Id. 400 N.E.2d at 133. This case is dispositive of the issue in the case at bar. Though the probative value of the testimony of the prosecutrix may be reduced by her inability to say for certain her assailant wore the shirt, the nature of her testimony did not render it inadmissible as evidence. See also, Wilson v. State, (1978) 268 Ind. 112, 374 N.E.2d 45 (shotgun alleged to be murder weapon held admissible as evidence even though eyewitness was unable to say it was the same shotgun he saw used in the crime). We hold there was no error in admitting the shirt into evidence.

Appellant claims the trial court erred in admitting into evidence testimony of a police officer as to a conversation he had with appellant subsequent to the occurrence of the offense. The officer gave appellant a Miranda warning, and appellant signed a waiver of rights form. During the conversation appellant admitted he owned a hunting knife and in reference to it stated, "I may have hurt somebody sometime." Appellant contends this statement is inadmissible because it was involuntarily made due to his agitated and unstable state of mind at the time the statement was made.

Upon examination of the record we find appellant's objection was that the statement of appellant was "too ambiguous and too vague" to be admitted. We might characterize the objection as being a relevancy objection, though appellant did not so state specifically at trial. It is clear, however, that the grounds offered on appeal that the statement was involuntarily made because of the mental condition of the declarant at the time it was made, are not at all the same grounds for objection offered at trial. The grounds for an objection on appeal must be the same as those offered at trial or the error alleged on appeal is deemed waived. Phelan v. State, (1980) Ind., 406 N.E.2d 237; Proctor v. State, (1979) Ind., 397 N.E.2d 980; Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639.

Moreover, we find nothing in the four United States Supreme Court cases cited by appellant that would suggest the "confession" here was involuntary due to appellant's state of mind at the time the statement was made. The sole indication in the record of appellant's alleged mental instability is the officer's testimony that immediately before making the statement appellant became very emotional and began to cry. We hardly see such evidence as establishing that the "interrogation of [the] prisoner [was] so long continued, with such a purpose, and under such circumstances, as to make the whole proceeding an effective instrument for extorting an unwilling admission of guilt ...." Culombe v. Connecticut, (1961) 367 U.S. 568, 635, 81 S.Ct. 1860, 1896, 6 L.Ed.2d 1037, 1076.

Also, we do not believe the objection offered by appellant at trial was meritorious. As we have stated evidence is relevant if it is material to an issue in the case and tends to make a desired inference more probable. Smith, supra; Turpin, supra; Larkin, supra. Since the prosecutrix indicated she was cut on the hand during the assault and the assailant carried a knife, and the statement of appellant was that he may have hurt someone using the knife, the inference appellant was the assailant in the instant offense may certainly be made from the evidence adduced. The fact appellant did not specifically state he used his knife in assaulting the prosecutrix goes only to the weight to be accorded to the evidence and does not render it inadmissible. See, Johnson, supra. We find no error in admitting the testimony of the police officer regarding the statement into evidence.

Appellant claims the trial court erred in admitting into evidence photographs of the bathroom in the victim's apartment. Appellant asserts the photographs were inadmissible because they do not accurately depict the crime scene, as blood spatters visible in the photographs may have been caused by paramedics' treatment of the victim's wounded hand.

It is well established that a photograph is relevant and admissible if it would be proper for a witness to verbally describe the scene or the thing pictured. James v. State, (1980) Ind., 411 N.E.2d 618; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Rogers v. State, (1979) Ind., 383 N.E.2d 1035. Further, the photograph is competent evidence if it is shown to be a true representation of that which it purports to represent. James, supra; Sloan v. State, (1980) Ind., 408 N.E.2d 1264; Porter v. State, (1979) Ind., 391 N.E.2d 801. Finally, the admission of photographs is a matter that lies within the sound discretion of the trial court. Reversible error is committed only where there is abuse of that discretion. James, supra; Rogers, supra; Porter, supra.

We fail to see any abuse of that discretion here. Photographs of the scene of a crime have been held relevant, in that they aid the trier of fact in orienting himself to the circumstances surrounding the commission of a crime. Holland v. State, (1980) Ind., 412 N.E.2d 77. The photographs were those of the scene of the attack upon the victim. As to the argument the blood spatters may have been caused by the paramedics' treatment of the wound to the victim's hand, appellant overlooks the fact the victim testified the photographs accurately depicted the scene of the crime. She also testified "blood was everywhere" immediately after the attack. We hold there was no error in admitting the photographs into evidence.

Appellant claims the trial court erred in admitting into evidence the testimony of a prior victim. She testified as to a rape perpetrated upon her seventeen days before the instant offense. She identified appellant as her assailant. Appellant cites Henderson v. State, (1980) Ind., 403 N.E.2d 1088, in support of his argument that though the evidence of prior crimes is admissible where such evidence tends to show intent, motive, purpose, identification, or common scheme or plan, the facts of the two crimes here are too dissimilar to connect the two.

The proposition of law cited by appellant is, of course, correct and has been affirmed by this Court. See, e.g., Brewer v. State, (1981) Ind., 417 N.E.2d 889; Montgomery v. State, (1980) Ind.,...