Williams v. State

• Decision Date: 05 September 1979
• Docket Number: No. 676S174,676S174
• Citation: 271 Ind. 476,393 N.E.2d 183
• Parties: Charles Edward WILLIAMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 183

393 N.E.2d 183

271 Ind. 476

Charles Edward WILLIAMS, Appellant, v. STATE of Indiana, Appellee.

No. 676S174.

Supreme Court of Indiana.

Sept. 5, 1979.

Cletus H. Brault, Jr., Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel L. Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant Williams was charged in three counts with murder, inflicting an injury in the commission of a robbery, and robbery. He entered pleas of not guilty and insanity; a trial to a jury resulted in his conviction on all counts; and he received two life sentences and a term of ten to twenty-five years. He now appeals such convictions raising several issues for our determination, including (1) whether error occurred in the admission of a photograph of the crime scene and a photograph of the body of the victim; (2) whether the trial court erred in refusing to grant him a continuance for the purpose of subpoenaing character witnesses; (3) whether the trial court erred in refusing a defense instruction on the insanity defense and in giving a prosecution instruction on intoxication; and (4) whether there was sufficient evidence of sanity to support the guilty verdict.

Appellant robbed the Cozy Corner Bar in Gary, Indiana. At gunpoint while in the bar he took money, shot and wounded the bartender in the neck, and during the course of a struggle with appellant a customer by the name of Hodges was shot and killed. Appellant had previously been hospitalized for psychiatric treatment, was determined to be incompetent to stand trial during the pre-trial period on the present charges, and had a history of use of soft drugs and alcohol.

I.

During the course of the testimony presented by the State, a frequent customer of the Cozy Corner who was present at the time of the alleged offenses identified State's Exhibit 4 as a photograph depicting a portion of the interior of the Cozy Corner. Defense counsel objected to the proffer of the exhibit for introduction on the basis that no proper foundation had been established for its introduction. The objection was overruled. One of the necessary steps in qualifying a photograph for introduction is to establish that it is a true and accurate representation of the person, place or thing which it purports to portray. New v. State, (1970) 254 Ind. 307, 259 N.E.2d 696; Johnson v. State, (1972) 258 Ind. 648, 283 N.E.2d 532. Appellant contends that such element was not shown. The witness identified Exhibit 4 as a photograph of the interior of the Cozy Corner looking from the front entrance to the back. Immediately before doing so he had identified State's Exhibit 3 as being a photograph taken inside the Cozy Corner, and as being an accurate portrayal of the bar as it appeared on May 3, 1973. The two exhibits show the interior of the bar, the crime scene, from different angles. The two photographs were being introduced sequentially and were both of the interior of the tavern. The establishment of the accurate representation element for Exhibits 3 and 4 was a single continuous process and was sufficient.

As stated appellant was charged with the murder of one Oscar Hodges. The same witness referred to immediately above testified that he was seated at the bar in the Cozy Corner on the night of the robbery and that appellant was sitting several seats down the bar from him. He recalled seeing a Mr. Hodges enter the tavern at that point, accompanied by a woman, and at such time the tavern door was locked as closing time had been reached. At this point in the trial, the witness identified State's Exhibit 5 as being a photograph of the customer Hodges. The photograph displays a human being laid out on a stretcher, dead or in dire circumstances. Appellant contends that the photograph had no relevance or purpose other than to confuse and prejudice the jury. At the time the photograph was offered by the prosecution for introduction, there had been no testimony presented describing the death or wounding of the victim Hodges. The testimony to that point was concerned only with the presence of Hodges in the tavern. We have held that a photograph which is a graphic portrayal of relevant testimony is itself relevant. New v. State, supra. A photograph is an image of that which is photographed and is the equivalent of a verbal description. It supplies information and the information supplied by this photograph was partly relevant wherein it portrayed the person of Hodges; but was inadmissible and highly prejudicial insofar as it constituted an assertion that Mr. Hodges was wounded or dead. In Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482, this Court stated with regard to the admission of photographs:

"Considerable latitude is permitted to the trial judge in determining the admissibility of such evidence when a fair conflict appears between the State's right to present relevant evidence and the defendant's right to be protected from prejudice likely to be engendered from morbid and shocking displays. The question is, of necessity, one of balance . . . ." 263 Ind. at 61, 324 N.E.2d at 486.

The prejudicial and inflammatory impact upon the jury from this photograph clearly and decisively outweighed its relevance as a picture of a man who according to the testimony up to that time had entered a bar to have a drink. The ruling of the court was erroneous when made.

After Exhibit 5 was introduced into evidence and displayed to the jury, testimony of the sponsoring witness revealed that prior to the robbery and shootings, he left the Cozy Corner and went across the street to have a drink in another tavern. Within a few minutes Mr. Hodges also entered the tavern. He was badly wounded and bleeding profusely. His shirt front was covered with blood and he spoke with difficulty. Testimony of other witnesses showed that Mr. Hodges was shot while wrestling with appellant and that thereafter he had lurched out of the Cozy Corner Tavern and later died as the result of the wounds received. In light of this testimony of the wounding and death of Mr. Hodges, the error in admitting the photograph of Mr. Hodges' body did not result in harm or prejudice to appellant's substantial rights and does not constitute reversible error. Whitten v. State, (1975) 263 Ind. 407, 333 N.E.2d 86; Hightower v. State, (1973) 260 Ind. 481, 296 N.E.2d 654.

II.

At the close of the State's case appellant handed his counsel a list of twenty character witnesses he desired to have testify for him. Counsel immediately made an oral motion for a continuance for the purpose of obtaining the addresses of these persons and procuring their attendance. Counsel stated that he did have one of the witnesses, but that he had no idea where the other witnesses lived. The trial court denied the motion and no character witnesses in fact testified on behalf of appellant.

Appellant argues that the denial of the motion prevented him from presenting character witnesses. The assertion cannot as a legal matter be supported. The trial court exercises considerable authority in making a determination of whether a continuance of an ongoing trial should be granted. Johnson v. State, (1970) 254 Ind. 465, 260 N.E.2d 782; Hooks v. State, (1977) 266 Ind. 678, 366 N.E.2d 645. As made to the trial court, there was no justification offered in the motion to show why it had not been made more promptly, and there is no suggestion made that there had been inadequate time during the pre-trial period for the witnesses to be located and subpoenaed. The motion provided no assurance that efforts to locate the addresses of the proposed witnesses would be fruitful. The motion was certainly not precipitated by any surprise to the defense arising at trial. The future need for character witnesses can be assessed with a high degree of accuracy prior to most trials. Even in a murder case a continuance in the midst of a trial cannot be lightly granted as it results in considerable disruption of the trial court's schedule; juror, witness and counsel inconvenience; and substantially increases the risk that the jury cannot again be assembled and the trial brought to a conclusion. There was, therefore, a reasonable basis for the denial of the motion and we find that such ruling was not error.

III.

Appellant argues that the trial court erred in refusing to give Defendant's Tendered Instruction Number 1 which reads as follows "In a criminal prosecution where there is some evidence in support of a plea of insanity, the State must prove the accused could know the wrongful nature and consequences of his act and that the accused had sufficient will power to control his impulse to commit the act and failure to prove either requirement beyond a reasonable doubt is a failure of proof on this issue."

On appeal in considering whether any error occurs when a tendered instruction is refused we first determine whether the instruction correctly states the law. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836. This instruction relates to the insanity test as established in Hill v. State, (1969) 252 Ind. 601, 251 N.E.2d 429. The instruction is erroneous as it did not correctly state that test. The instruction does not inform the jury that the State may satisfy its burden to prove sanity by showing to the satisfaction of the jury beyond a reasonable doubt that the accused was not suffering from a mental disease or defect at the time of the alleged criminal act. Moreover, the instruction is confusing in that it substitutes the concept of will power for that of capacity. The instruction was properly refused.

Appellant argues that the trial court erred in giving Final Instruction 9 relating to the intoxication defense. The only objection in the record before us to this instruction is contained in the motion to correct errors. There is no record of an objection to the instruction prior to the time it was read to the jury. The issue sought to be raised here was not...