Yeagley v. State

• Decision Date: 06 September 1984
• Docket Number: No. 683S196,683S196
• Parties: James A. YEAGLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 730

467 N.E.2d 730

James A. YEAGLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 683S196.

Supreme Court of Indiana.

Sept. 6, 1984.

Eric T. Dean, Jr., Crawfordsville, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, James A. Yeagley, was convicted by a jury of two counts of attempted voluntary manslaughter, a Class B felony, Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.); Ind.Code Sec. 35-42-1-3 (Burns 1979 Repl.) and of one count of burglary, Ind.Code Sec. 35-43-2-1 (Burns 1984 Supp.). Defendant was also found to be a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1984 Supp.), and he received a total sentence of eighty years. Defendant raises the following ten issues in this direct appeal:

1. Whether the trial court erred in denying defendant's motion for a change of venue;

2. Whether the trial court erred in denying defendant's motion for a continuance;

3. Whether the trial court erred in admitting various diagrams and photographs into evidence 4. Whether the trial court erred in admitting a cardboard shooting test background into evidence;

5. Whether the trial court erred in giving a state's instruction dealing with burglary;

6. Whether the trial court erred by giving instructions that included the class of felony involved;

7. Whether the trial court erred in refusing defendant's tendered instruction on attempted reckless homicide;

8. Whether there was sufficient evidence to support the burglary conviction;

9. Whether the trial court erred in not merging the sentences for attempted voluntary manslaughter and burglary; and

10. Whether the trial court erred in refusing two of defendant's tendered instructions on the habitual offender charge.

A review of the facts most favorable to the state shows that on June 26, 1982, Charles May visited the home of his fiance, Becky Yeagley, in Ladoga. Becky Yeagley was defendant's ex-wife. Charles May was standing on the front porch when he noticed defendant approaching the house with a shotgun. May ran into the house to warn Becky. Defendant then fired the shotgun through the front door, striking Becky in the shoulder. Becky ran from the house. Defendant entered the house and fired again, this time wounding May in the hip. Defendant fled but surrendered to the police the next day.

I.

Defendant first argues that the trial court erred when it denied defendant's motion for a change of venue. Defendant asserts that this case generated a great deal of attention in Montgomery County and that he did not receive a fair trial because of community prejudice.

A decision on a motion for change of venue is a matter within the trial court's discretion. Ind.R.Crim.P. 12. The burden rests with the moving party to establish adverse publicity and that the jurors were unable to set aside their preconceived notions of guilt and render a verdict based upon evidence introduced at trial. McReynolds v. State, (1984) Ind., 460 N.E.2d 960; Sage v. State, (1981) Ind., 419 N.E.2d 1286.

Defendant here has not shown that the trial judge exceeded his discretion. A review of the newspaper articles on this case shows little more than a reporting of the facts of the incident. The voir dire transcript shows that the jurors indicated they could put aside what they already knew about the case and render a decision based on the facts introduced at trial. We also note that defendant failed to exhaust his peremptory challenges in an attempt to secure juror impartiality. Pine v. State, (1980) Ind., 408 N.E.2d 1271; Grooms v. State, (1978) 269 Ind. 212, 379 N.E.2d 458. The trial court did not err in denying defendant's motion for a change of venue.

II.

Defendant's second argument is that the trial court erred in denying defendant's motions for a continuance. Defendant twice requested a continuance on the grounds that records he needed from the Army had not been produced, that there had been inadequate time to test for glandular problems, and that he needed to develop ballistics evidence to rebut the testimony of a state's witness. Defendant also orally requested a continuance during trial.

A motion for a continuance based on non-statutory grounds is addressed to the discretion of the trial court. To demonstrate an abuse of discretion, the record must reveal that defendant was prejudiced by the failure to grant the continuance. Fielden v. State, (1982) Ind., 437 N.E.2d 986; Caccavallo v. State, (1982) Ind., 436 N.E.2d 775. There has been no showing of abuse of discretion here. Neither in his brief nor at trial has defendant shown how the Army records or the glandular tests would have benefited his case; defendant simply stated that they were "central to the presentation of an insanity defense." The denial of a motion based upon sheer speculation that some benefit might flow from it cannot be considered arbitrary or abusive. Brewer v. State, (1983) Ind., 449 N.E.2d 1091. The trial judge was also not required to continue the case in order to allow defendant to develop evidence to rebut some facet of the state's case. The continuances here were not requested until less than a week before trial. Defendant had ample time and opportunity to prepare prior to this time. There was no error in denying the requests for continuances.

III.

Defendant next contends that the trial court erred in admitting certain diagrams and photographs. The first of these, state's exhibits 2, 3, and 4, were diagrams of the house where the shooting occurred. Defendant objected to their admission on the ground that they were not drawn to scale and were therefore confusing to the jury.

Diagrams are admissible to represent objects and places that cannot otherwise be clearly shown or described. When offered in connection with the testimony of a witness, such documents are admissible as legitimate aids to the court or jury. Brown v. State, (1981) Ind., 417 N.E.2d 333; Sexton v. State, (1974) 262 Ind. 554, 319 N.E.2d 829. The diagrams that comprised state's exhibits 2, 3, and 4 showed the interior layout of the victim's house. Since the house itself obviously could not be brought before the jury, these diagrams were a legitimate aid for the jury. The diagrams were introduced during the testimony of Deputy Larry Lough, who investigated the incident. Lough testified that the diagrams were not drawn to scale but that they accurately depicted the layout of the house and the position of the furniture at the time of the investigation. We see no error in the introduction of these exhibits.

Defendant also contends the trial court erred when it admitted state's exhibits 12, 13, and 14, which were photographs of the scene of the shooting. Defendant's objection apparently relates to strings shown in the picture; these strings represented the line of fire. Defendant asserts that there was no foundation laid to establish that the strings did represent the line of fire.

The admission of photographic evidence is within the sound discretion of the trial court, reviewable only if the trial judge exceeds his discretion. Paige v. State, (1982) Ind., 441 N.E.2d 438; Wilson v. State, (1978) 268 Ind. 112, 374 N.E.2d 45. To be properly admitted the witness must establish that the photographs are true and accurate representations of the things they portray. Bray v. State, (1982) Ind., 430 N.E.2d 1162. The witness in this case, Deputy Lough, testified that the pictures accurately depicted the interior of the house. Lough explained the presence of the strings but made no attempt to establish that the strings did, in fact, show the trajectory of the shotgun pellets. Lough merely stated that the strings were present when he took the pictures. The trial judge did not abuse his discretion.

Defendant lastly objects to the admission of state's exhibits 7, 8, 16, 17, 18, 19, 20, 21, 22, and 23. These exhibits are photographs of the interior of the house and they depict the crime scene and various evidentiary items found in the house. Defendant claims the photographs were improperly admitted because they were taken nearly two hours after the shooting. Therefore, defendant asserts, they could not have accurately depicted the crime scene.

We believe the photographic exhibits were properly admitted. Deputy Lough testified that all of the photographs accurately depicted the crime scene at the time of his investigation. The photographs were thus being introduced to show what Deputy Lough was testifying about, which was his investigation. The fact that Lough could not state that nothing had been moved in the two-hour interval between the shooting and the taking of the pictures is not ground for reversal. The photographs were not introduced to show the crime scene as it existed at the time of the shooting. We find no error.

IV.

Defendant next contends that the trial court erred in admitting a cardboard background from a shooting test. The background was admitted during the testimony of Jerry Wilder, a firearms examiner for the Indiana State Police. Wilder testified that he fired defendant's shotgun at the cardboard background to produce shot patterns. The shot patterns in the cardboard were then compared with shot patterns in the victims' screen door, clothes, and flesh to determine how far away defendant stood when he fired. Defendant contends the use of the cardboard made the test "inherently unreliable" because of the dissimilarity of materials used in the comparison. However, Wilder specifically testified that in making a determination of the distance of a shot the resistance of the material was unimportant; what mattered was the pattern. Wilder testified in detail as to how he conducted his tests and was shown to be an expert in firearms. We find no error, and as such the trial judge did not abuse his discretion in allowing this evidence. See Napier v. State, (1983) Ind., 445 N.E.2d 1361.

V.

Defendant contends the...