Wilson v. State

Decision Date31 March 1978
Docket NumberNo. 377S186,377S186
Citation374 N.E.2d 45,268 Ind. 112
PartiesJames Douglas WILSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

James F. Maguire, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Following a conviction of second-degree murder in the Marion Criminal Court, appellant Wilson was sentenced on November 4, 1976, to life imprisonment. The record shows that about 6:30 in the evening of May 24, 1976, following an altercation that afternoon, Gillace Samples requested Scott Wright to meet him at Thomas Market to fight. Fred Wright, Robin Hood and Ronnie Hood accompanied Scott Wright to the alley behind Thomas Market where they met Samples and appellant Wilson. Both Samples and appellant carried a shotgun, and Fred Wright carried a knife. All six individuals entered Thomas Market. Prior to entering, Fred Wright dropped his knife. Once inside the market, Fred Wright and appellant began arguing. Several witnesses heard appellant threaten to shoot Fred Wright to which he replied "go ahead." Fred Wright then reached for appellant's shotgun and was shot by appellant in the chest, and killed.

Appellant Wilson argues six errors in the proceedings of his trial below: (1) that the trial court improperly admitted into evidence the shotgun appellant allegedly carried on the night of the shooting; (2) that the trial court improperly admitted into evidence photographs of the deceased taken at the scene of the crime; (3) that the trial court improperly refused to give appellant's tendered instructions; (4) that the jury's verdict was not supported by sufficient evidence; (5) that appellant's sentence of life imprisonment for second-degree murder constituted cruel and unusual punishment, and (6) that the pre-sentence report was inadequate, thereby denying appellant due process of law.

I.

Appellant first assigns error to the trial court's admission over appellant's objection of state's exhibit number 3, a shotgun. Appellant contends that there was not a sufficient foundation upon which the witness could identify the shotgun, nor was there proof of any link between the appellant and the shotgun. It is well settled that any evidence tending to prove a material fact is admissible even though its tendency to prove that fact is slight. Thomas v. State, (1968) 251 Ind. 76, 238 N.E.2d 20. Furthermore, any evidence tending to connect an accused with the commission of a crime is admissible. Pullins v. State, (1970) 253 Ind. 644, 256 N.E.2d 553. However, positive proof or positive authentication of evidence with such a tendency is not required for admissibility. Lack of positive proof or positive authentication only reflects on the weight of the evidence and the inferences drawn therefrom by the trier of fact. Collins v. State, (1977) Ind., 364 N.E.2d 750.

Here the shotgun was evidence which tended to connect appellant with the commission of the crime. The fact that the witness could only identify the shotgun by the intricate carvings on the stock of the gun does not render the evidence inadmissible. Such identification is taken into consideration by the trier of fact in its assignment of weight to be given to the evidence. Therefore, the trial court did not err when it admitted state's exhibit number 3.

II.

Appellant next contends that the trial court erred by admitting over appellant's objection color photographs of the victim's body at the scene of the shooting. Appellant argues the photographs were irrelevant and highly prejudicial in that they placed undue emphasis upon the condition of the victim and kept the jury from an objective determination of the facts. Admission of photographs is within the sound discretion of the trial court and will not be disturbed unless the trial court abused its discretion. To be admitted, it must first be established that the photographs are a true and accurate representation of the things they are intended to portray. Johnson v. State, (1972) 258 Ind. 648, 283 N.E.2d 532. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photograph depicts. Murphy v. State, (1977) Ind., 369 N.E.2d 411. Although the photographs may depict gory, revolting or inflammatory details of the crime when presented to the jury, this is not a sufficient basis for excluding such evidence. Sotelo v. State, (1976) 264 Ind. 298, 342 N.E.2d 844; Meredith v. State, (1966) 247 Ind. 233, 214 N.E.2d 385.

The photographs in this case show the fatal shotgun wound to the chest and the location and position of the body in Thomas Market. Testimony indicated that these photographs are a true and accurate representation of the scene. Since oral testimony concerning the location of the body and the wounds sustained is proper, photographs accurately depicting the scene are also admissible even though they may be considered by some to be gory. Therefore, the trial court's admission of the photographs was correct.

III.

Appellant next claims the jury was not adequately instructed on matters of law pertaining to his theories of defense and that the trial court improperly refused his tendered instructions. Ind.Code § 35-1-35-1 (Burns 1975) requires the trial court to instruct the jury on all matters of law necessary for their information in giving their verdict. In addition, a defendant is entitled to instructions which are properly tendered on any theory of defense which has some foundation in the evidence. United States v. Hillsman, (7th Cir. 1975) 522 F.2d 454. However, when the substance of a tendered instruction is covered by other instructions given by the trial court, refusal of the tendered instruction is not grounds for reversal. Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482.

Appellant argues that his tendered instructions numbered 1, 4 and 10, dealing with his theory of self defense, should have been given to the jury. However, the substance of these instructions was adequately covered by the court's preliminary instruction number 8 and final instruction number 23, which told the jury, inter alia, that the question of apparent danger is to be determined from circumstances as they appeared to the defendant at the time of the shooting. Accordingly, the trial court properly refused appellant's request.

Appellant's tendered instruction number 7 defining the necessary premeditation for first-degree murder was properly denied for three reasons. First, the court's final instruction number 34 adequately instructed the jury on the law covering premeditation. Secondly, appellant's tendered instruction was a misleading statement of the law. The tendered instruction states that:

"(T)he thought of taking life must have been consciously conceived in the mind, the inception must have been meditated upon, and a deliberate determination formed to do the act. There must be time and opportunity for premeditation after the mind has consciously formed the design to take life."

This instruction fails to point out that the time span between formation of the thought to take another's life and the act need not be appreciable to constitute premeditation. It may be as instantaneous as successive thoughts. Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745. Finally the instruction actually given was a broader definition of premeditation than appellant's tendered instruction above. Nevertheless, the jury found appellant guilty of second-degree murder. Therefore, any error which may have occurred by not giving appellant's narrower tendered instruction would not affect the jury's verdict of guilt of second-degree murder. For these reasons, appellant's tendered instruction on premeditation was properly rejected.

Appellant's tendered instruction number 9 states that intent to kill is a necessary element in the crime of second -degree murder, and if the jury has a reasonable doubt that the killing was done intentionally then appellant could not be convicted of the crime. Tendered instruction number 3 attempts to further explain that appellant could not be convicted of second-degree murder if the killing resulted from "inadvertence, lack of attention, accident or negligence" on the part of appellant. The trial court correctly refused the tendered instructions. The jury was instructed on the law pertaining to reasonable doubt and burden of proof in the court's instructions numbered 9, 13 and 14, and on the necessary elements of second-degree murder in the court's preliminary instruction number 11. The combination of these instructions adequately covered the substance of appellant's tendered instructions numbered 3 and 9. Furthermore, the tendered instructions contain incorrect statements of law. They seem to require a specific intent to kill in order to be convicted of second-degree murder. The necessary elements for second-degree murder are: (1) the killing of a human being; (2) that it was done purposely, and (3) that it was done maliciously. Ind.Code § 35-1-54-1 (Burns 1975); Blackburn v. State, ...

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