Pierce v. State ( 1970 )

Arterburn, J.

Appellant was convicted of first degree murder in the Madison Circuit Court and sentenced to life imprisonment. We have heretofore granted appellant’s petition for a belated appeal pursuant to our Rule P. C. 2, Section 2.

For the sake of clarity it is necessary to review the history of this cause. On July 1, 1965, an indictment was returned in Marion County charging the appellant with first degree murder in the strangulation death of Norma Jean Toney. Upon appellant’s motion, the cause was venued to Hamilton County. The trial in Hamilton County resulted in appellant being found guilty of murder in the first degree and sentenced to death. However, appellant’s motion for a new trial, which was based largely upon newly discovered evidence, was granted. It was then that appellant’s trial counsel filed a motion for a change of venue from Hamilton County alleging publicity and news coverage of appellant’s trial prevented appellant from being afforded a fair new trial. Change of venue was granted and the cause was venued to Madison County. The attorney who had been appellant’s trial counsel in Hamilton County and who had obtained the change of venue from that county then withdrew and a new attorney entered an appearance on behalf of the appellant in the Madison Circuit Court. It is from his conviction for first degree murder in Madison County that appellant takes this belated appeal.

Appellant first argues that the Madison Circuit Court was without jurisdiction because the motion for a change of venue from Hamilton County was filed by appellant’s trial counsel without the knowledge and consent of the appellant. The motion is also attacked as not having been verified in conformity with Supreme Court Rule 1-12C. Appellant does not challenge the fairness of the trial he received in Madison County nor does he allege that he would have received a more impartial trial in Hamilton County.

On July 5, 1966, after a new trial was granted, appellant filed a motion asking that “this cause be venued to some other county not influenced by Indianapolis T.V. broadcasts and Indianapolis’ and Noblesville’s newspaper publications.” Oral argument was heard thereon and the motion was granted. Appellant struck from the list of counties submitted and the cause was venued to Madison County. Appellant appeared in that court and asked for time to consult with his family and his attorney. His attorney filed, in the Madison Circuit Court, a motion for the names of the state’s witnesses, a notice of alibi and a motion to suppress various evidence. The cause was set for trial. Not until February 14, 1967, the day before the trial, did appellant for the first time question the venue of the cause.

In our opinion the objection to the venue was not timely. The trial court has the power to grant a change of venue for the reasons stated in the motion. The appellant knew of the change yet made no objections. Pollard v. State (1969), 252 Ind. 513, 250 N. E. 2d 748; Clark v. State (1853), 4 Ind. 268.

Appellant next argues that it was error to permit the introduction into evidence of certain photographs and that these photographs served only to excite the passion and prejudice of the jury. The record shows that the bodies of Norma Jean Toney and Mabel Toney were found in the same bed. Appellant was charged only with the murder of Norma Jean Toney. The photographs that appellant objects to were photographs taken at the scene of the crime and showed the bodies of the two women lying on the bed. It is appellant’s contention that the portion of the pictures showing the body of Mabel Toney, for whose murder he was not charged, should have been excised prior to the introduction into evidence of the photographs.

The fact that the photograph might arouse the passions of the jury is not a sufficient ground in itself to justify its exclusion from the evidence if the photograph is material and relevant. Kiefer v. State (1958), 239 Ind. 103, 153 N. E. 2d 899; Wilson v. State (1966), 247 Ind. 680, 221 N. E. 2d 347. The relevancy of a photograph is to be determined by an inquiry as to whether or not a witness would be permitted to describe the obj ects or scenes photographed. Here the photographs showed the scene of the crime. It is undisputed that the photographs represented a true and accurate depiction of the scene. The record is replete with testimony describing the scene. As we noted in Brown v. State (1969), 252 Ind. 161, 247 N. E. 2d 76, whatever the jury may learn through their ears they may learn through their eyes. The pictures merely supplemented the testimony of various witnesses and presented a more accurate picture than a verbal description. Their relevancy cannot be disputed. 3 Wigmore on Evidence, 3rd Ed., § 792, p. 178.

Appellant further argues that Exhibit D, which was a photograph of the upper portion of the body of the victim, was merely cumulative evidence and prejudicial. An examination of the photograph indicates that marks are clearly discernable on the victim’s neck. The implication of foul play is apparent. The previously introduced photographs did not disclose the strangulation marks. The photograph was identified by Dr. Palmer as a picture of a person taken immediately before an autopsy was performed. Dr. Palmer testified he was not present, nor did he see the victim, at the scene of the crime. The picture, therefore, served the purpose of establishing that the person upon whom the autopsy was performed was the same person found at the scene of the crime. Upon the basis of the record before us the court committed no error in admitting the picture into evidence. The admission or exclusion of cumulative evidence, assuming this evidence to be such, is within the sound discretion of the trial court. Chappell v. State (1926), 197 Ind. 272, 150 N. E. 769.

• Appellant next charges that the prosecution suppressed .certain evidence capable of establishing his innocence. The evidence allegedly consisted of a bed sheet found beneath the bodies that allegedly bore footprint marks and three sandwich bags from a nearby restaurant. After extensive examination, we are constrained to hold that appellant’s charges find no support in the voluminous record of this cause.

The custody and possession of these sheets from the time they were removed from the scene of the murder was stipulated to by the appellant and the prosecutor. The record shows the sheets were taken to the police property room, as was all other physical evidence collected at the scene of the crime, and placed in one of four corrugated containers; the appellant thereafter filed a motion for the production of all physical evidence, which was granted; the investigating police officer testified that pursuant to court order the corrugated .containers were made available to the defense, and that appellant’s attorney and the appellant personally examined the four boxes. Appellant’s counsel introduced into evidence various exhibits. One was exhibit #9 which consisted of a corrugated container containing various objects. Appellant’s attorney, upon introducing the exhibit into evidence, stated:

“Defendant’s Exhibit ‘9’ includes the following items: sheets, brown sack and paper, pillow and case, envelope with writing — from bed where bodies were found, pillow, blanket, sheet, pillow case, pillow and case, sheet, envelope.” (Emphasis added)

We find no substance to the charge that appellant and his attorney had no opportunity to examine those items.

Appellant’s charge of suppression as it relates to sandwich bags from a nearby restaurant likewise is baseless since the existence of such articles is subject to question. The only evidence in the record supporting appellant’s claim that such articles existed was contributed by a witness for the defense whose recollection of the state of the murder scene was very inconsistent. Appellant’s attempt to torture this situation, where the very existence of the articles is doubtful, into a prosecutor’s scheme to suppress evidence must fail. The evidence must be shown to be relevant material and of some substantial use to the accused. United States v. Tomaiolo (1967), 378 F. 2d 26. We find the appellant has shown no error in the connection.

Appellant next argues misconduct by the prosecution for failing to compare all identifiable fingerprints found at the scene of the crime. Appellant’s argument is directed specifically at two soft drink bottles found at the scene of the murder. He takes issue with the manner in which the fingerprints thereon were checked. Appellant lists the persons he believes were other suspects and argues their prints were not checked. The appellant is in error.

The record indicates that some of the fingerprints found at the scene of the crime were identifiable and some were not. With the exception of four individual prints, all of the identifiable fingerprints belonged either to the decedent, the mother of the decedent or appellant. The four fingerprints which were identifiable, but unidentified as to whose prints they were, were found primarily upon the two soft drink bottles. The record shows that the prints of two other persons, who head up appellant’s list of alternate suspects, were compared to the unidentified prints on the soft drink .bottles and the results of these tests showed that these unidentified prints were not those of these two men. The prosecution need not anticipate every theory that the appellant might put forth. The appellant made ample use of the existence of the unidentified fingerprints on cross-examination in an effort to impeach the state’s expert. The existence of such factors goes more to credibility of the state’s case than toward showing misconduct. From an examination of the evidence we can only conclude that the finding of the jury is amply supported.

Appellant makes no contention the evidence is insufficient except as it relates to the evidence to support a finding of premeditated malice. As a practical matter, appellant’s argument evolves into an assertion that appellant’s guilt was not established beyond a reasonable doubt. Appellant states in his reply brief: “The evidence here only supports a conclusion of appellant’s guilt, and it is not enough to support such conclusion beyond a reasonable doubt.” The argument consists primarily of raising queries and speculation concerning appellant’s various theories concerning the murder. For instance, appellant asserts that the fact that the blankets were pulled up so as to cover the bodies found on the bed “suggests the mind of a tidy woman rather than a man.” We will not indulge in such speculation. It cannot seriously be asserted that it is our office to sit as a fact-finding body. As we have so often said, a conviction will not be upset if supported by substantial evidence of probative value. It is not our office to weigh the evidence and pass upon the credibility of witnesses.

The evidence is largely circumstantial. It indicates that appellant had been living with Mabel Toney, the mother of Norma Jean Toney. Appellant was married. Mabel Toney was pregnant. In May of 1964 the appellant moved out of the Toney apartment fearing he would be reported as a parole violator. At 10:00 p.m. on the evening of June 13, 1964, the appellant and Mabel Toney went upstairs to the Toney apartment. Norma Jean Toney was in an apartment downstairs watching television. At 11:30 p.m. the appellant called Norma Jean Toney upstairs. Appellant testified that he then left the apartment building, passing Norma Jean Toney on the stairs. The tenant of the downstairs apartment testified that she watched television until about 2:30 the following morning. She stated the stairs were not carpeted and that she could see and hear people using them. To her knowledge appellant did not descend the stairs while she was awake. Further, there were a number of people on the front porch of the apartment house until 2:00 the following morning. They did not see appellant leave. The room where the bodies were found had a rear door. However, this door was latched from the inside. Thus, appellant’s only means of exit was down the front stairs. At 4:30 a.m. on June 14, 1964, appellant went to his brother’s house and hurriedly sold his half interest in their busines to his brother for $90 cash and fled town. Appellant told his brother he was in trouble. He was apprehended in New York about ten months later. Appellant testified that after he left the Toney apartment he went to a local tavern and remained there until 2:00 the following morning. However, the owner of the tavern testified that the tavern was closed for the first three weeks in June of 1964. Flight and similar conduct indicate a consciousness of guilt, from which the jury may draw an inference, in connection with other circumstances, that the person so acting is guilty of the homicide charged. Meredith v. State (1966), 247 Ind. 233, 214 N. E. 2d 385. We feel the evidence is sufficient to support the jury’s finding.

As the argument relates to premeditated malice, we believe the circumstances surrounding the crime amply support the jury’s finding of first degree murder. The physician who performed the autopsy stated that death by strangulation would generally require several minutes of continuous pressure. Slow death by the means used in this case would give the appellant sufficient time to premeditate his act of killing; nevertheless, he kept the pressure applied for a number of minutes until death occurred. The jury could well have found the appellant had sufficient time to contemplate the killing, which could have been avoided by the release of his pressure during the minutes of strangulation. We have stated that no appreciable length of time need expire to- form the premeditated intent to kill. May v. State (1953), 232 Ind. 523, 112 N. E. 2d 439.

The judgment of the trial court is affirmed.

Hunter, C.J., concurs in result; Givan, J., concurs; Jackson, J., dissents with opinion, in which DeBruler, J., concurs.