Donald J. Burns v. State of Indiana , 2016 Ind. App. LEXIS 330 ( 2016 )

FILED
Sep 08 2016, 9:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joseph P. Hunter Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald J. Burns, September 8, 2016
Appellant-Defendant, Court of Appeals Case No.
27A02-1510-CR-1785
v. Appeal from Grant Circuit Court.
The Honorable Mark E. Spitzer,
Judge.
State of Indiana, Cause No. 27C01-1310-MR-5
Appellee-Plaintiff.
Sharpnack, Senior Judge
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Statement of the Case
1
[1] Donald Burns appeals his convictions for murder, a felony, two counts of
2 3
forgery, as Class C felonies, theft as a Class D felony, and two counts of
4
receiving stolen property, as Class D felonies. He also was found to be an
5
habitual offender. He alleges the trial court abused its discretion when it
admitted certain photographs at trial, and that there is insufficient evidence of
his intent to kill the victim to support a conviction of murder. We affirm.
Issues
[2] Burns raises the following restated issues for our review:
I. Whether the trial court abused its discretion when it admitted into
evidence photographs of the victim's remains; and
II. Whether there was sufficient evidence of his intent to kill the
victim to support his conviction for murder.
Facts and Procedural History
[3] The facts most favorable to the verdict are as follows. Burns was in financial
straits in June of 2011. He had been served an eviction notice for failure to pay
1
Ind. Code § 35-42-1-1(1) (2007).
2
Ind. Code § 35-43-5-2(b)(4) (2006).
3
Ind. Code § 35-43-4-2(a) (2009).
4
Ind. Code § 35-43-4-2(b) (2009).
5
Ind. Code § 35-50-2-8 (2005).
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fees associated with his trailer and lot rental, and a disconnect warning for
failure to pay his utility bills. He no longer was engaged in full-time
employment, and instead worked sporadically performing menial labor.
[4] At some point on the day of June 13, 2011, Burns made contact with his
seventy-four-year-old aunt, Dorothy Hurd. Hurd left her home with Burns,
leaving a note for Robert “Bob” King, a friend of hers, stating: “Bob[,] I'll be
back in a little bit. Went to the cemetery with Little [Donnie].” Tr. p. 181.
The cemetery was located in Noblesville, Indiana, and was where her late
husband as well as Burns’ deceased father (Hurd’s brother) were buried. Burns
murdered Hurd and left her body in a thicket just off an access road near the
Mississinewa River in Grant County in an area where Burns had fished in the
past.
[5] Later that evening, Burns used Hurd’s credit card to purchase three gold
necklaces from the jewelry department at Walmart (located in Marion, Indiana)
and attempted a second purchase from the jewelry counter which was rejected
by the card service. At 5:20 p.m. on that day, Burns pawned Hurd’s wedding
ring set at the EZ Pawn located in Marion, Indiana. He drove to his wife Janel
Bishir’s home in Sweetser, Indiana, and left for her an envelope containing
(among other things) a greeting card, a ring belonging to Hurd that had been
given to Hurd by Bob King, and one of the gold necklaces that had been
purchased by Burns using Hurd’s credit card.
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[6] On June 14, 2011, when members of Hurd’s family could not reach her by
telephone, they went to her home and found the note Hurd had left taped to the
side door window. They checked the voicemail on her phone and heard a
message from Hurd’s bank that some suspicious transactions had been made
and attempted with her credit card. They called the police.
[7] A police officer drove to Burns’ trailer and attempted to speak with him about
Hurd’s disappearance. At the time, Burns was on parole for a prior conviction.
When the officer spotted Burns and called to him, Burns jumped into his
vehicle and drove away. The officer pursued Burns and Burns soon stopped his
vehicle and surrendered. Burns was taken into custody. That evening, a
resident of the trailer park where Burns lived found a plastic bag on the
premises containing Hurd’s VISA credit card that had been used by Burns at
Walmart, a JC Penney credit card in Hurd’s name, a blank check from Hurd’s
checking account, and two gold necklaces.
[8] While being held in jail, Burns wrote to his wife Janel Bishir urging her to “take
those two things I gave you . . . and flush them down the toilet;” and, “get rid
of them” so that “no one will ever know.” Tr. p. 594. Burns sent the letter
sometime during the last week of June, 2011.
[9] The police investigation of Hurd’s disappearance led to evidence of the above
stated facts and that Burns’ cell phone, which Burns had told the police was
always with him, had been used in the vicinity of Mississinewa River at 1:05
p.m. on June 13, 2011, the day of Hurd’s disappearance. A search eventually
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led to the discovery of Hurd’s remains on February 9, 2012. A forensic
investigation showed that Hurd had been struck multiple times, causing several
factures to her skull and jaw prior to her death. Evidence was presented that
her death, most likely, was due to that trauma, and that such trauma could not
have been accidentally inflicted or inflicted by Hurd herself.
[10] The remains were a skeletal torso and upper legs, scattered other bones, and a
skull separated from the torso. It was concluded that Hurd’s body had been
subjected to scavenging animals, causing the separation of the body and
skeleton into pieces.
[11] Burns was charged with Hurd’s murder, one count of theft, two counts of
forgery, and two counts of receiving stolen property. At the conclusion of the
trial, the jury found Burns guilty as charged and also found him to be an
habitual offender. Burns received a total sentence of 103 years. He now
appeals.
Discussion and Decision
I. Admissibility of Photographs
[12] Burns contends that the trial court erred in admitting photographs of the site
where Hurd’s bodily remains were discovered, photographs of Hurd’s bodily
remains, and autopsy photographs. Burns argues the prejudice attributable to
the photographs’ gruesomeness substantially outweighed their probative value,
that some photographs were cumulative and duplicative, and that some
photographs were taken after medical intervention or after the autopsy was
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completed. The State maintains the photographs were properly admitted
“because they were probative, relevant, accurate representations of the crime.”
Appellee’s Br. p. 18.
[13] The admission and exclusion of evidence falls within the sound discretion of
the trial court. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). This Court
reviews the admission of photographic evidence only for an abuse of discretion.
Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005), cert. denied; Ealy v. State, 685
N.E.2d 1047, 1049-50 (Ind. 1997). Photographs may be excluded only if their
probative value is substantially outweighed by the danger of unfair prejudice.
Ind. Evidence Rule 403; see also, Byers v. State, 709 N.E.2d 1024, 1028 (Ind.
1999). No claimed error in admitting photographs will prevail “unless a
substantial right of the party is affected.” Ind. Evidence Rule 103(a); see also,
Pruitt, 834 N.E.2d at 117; Corbett v. State, 764 N.E.2d 622, 628 (Ind. 2002).
“Whether an appellant’s substantial rights are affected is determined by
examining the ‘probable impact of that evidence upon the jury.’” Pruitt, N.E.2d
at 117 (quoting Corbett, 764 N.E.2d at 628).
[14] Generally, photographs that depict a victim’s injuries or demonstrate the
testimony of a witness are admissible. Corbett, 764 N.E.2d at 627 (citing Fentress
v. State, 702 N.E.2d 721 (Ind. 1998)); Ind. Evidence Rules 401, 402.
Photographs that may be gruesome in nature are admissible if they act as
interpretive aids for the jury and have strong probative value. Spencer v. State,
703 N.E.2d 1053, 1057 (Ind. 1999). Though autopsy photographs have been
found to be inadmissible to avoid the risk that the finder of fact could
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mistakenly infer that the defendant inflicted the autopsy incision, Allen v. State,
686 N.E.2d 760, 776 (Ind. 1997), cert. denied, exclusion of such photographs is
not necessary if they are accompanied by testimony to explain what had been
done to the body, thus minimizing the potential for confusion and showing that
the probative value outweighed the prejudicial effect. Corbett, 764 N.E.2d at
627 (citing Fentress, 702 N.E.2d at 722).
[15] Burns challenges the admission of twenty-eight photographs, over his objections
at trial, which included eleven photographs of Hurd’s skull, six photographs of
her torso, two photographs of her hand, seven photographs depicting either the
site where Hurd’s remains were found or the remains themselves in the
condition in which they were discovered, and two photographs showing Hurd’s
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torso at the time the autopsy was performed. The admission of these
photographs was not error.
[16] No incisions were made to Hurd’s remains during the autopsy. The forensic
pathologist testified that the autopsy performed on Hurd’s remains was not “a
full autopsy,” and that “[t]he coroner requested that I don't do any kind of
incision or invasive testing.” Tr. p. 841. The remainder of the photographs
show Hurd’s remains as they were on the day they were found and on the
following day when the remains were recovered.
6
Four photographs, two depicting the site where Hurd’s remains were found and two showing Hurd’s skull
lying in the woods, were admitted into evidence without objection.
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[17] The Indiana State Police crime scene investigator who was present when
Hurd’s remains were found and recovered testified that the other twenty-six
pictures, admitted over objection, depicted the site where Hurd’s remains were
found, the actual remains as they were found, and that Hurd’s skull was found
some distance from her torso and from where other remains were found. See,
e.g., Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998) (gory and revolting
photographs may be admissible if they are relevant to some material issue or
show scenes that a witness could describe orally).
[18] Burns does not put forth an argument that his substantial rights were affected by
the admission of the photographs and does not argue how the admission of the
photographs might have prejudiced the jury. Furthermore, evaluating whether
the photographs’ probative value was substantially outweighed by the danger of
unfair prejudice is a discretionary task best performed by the trial court. See
Dunlap v. State, 761 N.E.2d 837, 842 (Ind. 2002). The photographs, although
unpleasant, were relevant to material issues and to the testimony of the criminal
investigator and the forensic pathologist. We do not find any abuse of
discretion by the trial court in admitting the photographs over Burns’
objections.
II. Sufficiency of the Evidence of Intent to Kill
[19] Burns next contends that insufficient evidence was presented by the State to
prove beyond a reasonable doubt that he intended to kill Dorothy Hurd. Our
standard of reviewing claims relating to sufficiency of the evidence is well
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established. On appeal, we do not weigh the evidence or judge the credibility of
witnesses. Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991). We consider only
that evidence most favorable to the verdict together with all reasonable and
logical inferences to be drawn therefrom. Id. If there is substantial evidence of
probative value to support the conclusion of the trier of fact, the verdict will not
be disturbed. Id. A conviction of murder may be sustained on circumstantial
evidence alone. Green v. State, 587 N.E.2d 1314, 1315 (Ind. 1992). The
reviewing court need not determine that circumstantial evidence is adequate to
overcome every reasonable hypothesis of innocence, but only that an inference
may reasonably be drawn which supports the finding of guilt. Smith v. State,
468 N.E.2d 512, 515 (Ind. 1984).
[20] Burns was charged with knowingly or intentionally killing another human
being. See Ind. Code § 35-42-1-1. “A person engages in conduct ‘intentionally’
if, when he engages in the conduct, it is his conscious objective to do so.” Ind.
Code § 35-41-2-2(a) (1977). An intent to kill sufficient to sustain a murder
conviction can be established in several ways. The intent to kill may be inferred
from the use of a deadly weapon. Chapman v. State, 719 N.E.2d 1232, 1234
(Ind. 1999). Intent may be inferred from the nature of the attack and the
circumstances surrounding the crime. Corbin v. State, 563 N.E.2d 86, 88 (Ind.
1990). The duration and brutality of the attack and the relative strengths of the
defendant and victim may also indicate an intent to kill. Gibson v. State, 515
N.E.2d 492, 496 (Ind. 1987); see also Shackelford v. State, 264 Ind. 698, 702-04,
349 N.E.2d 150, 154 (1976). Additionally, where blows of magnitude are
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repeated, a jury could conclude that the defendant had an intent to kill. Nunn v.
State, 601 N.E.2d 334, 339 (Ind. 1992).
[21] Burns argues there was insufficient evidence of his intent to kill because the
cause and manner of Hurd’s death were undetermined and no formal autopsy
was performed. We disagree. Hurd’s remains were found eight months after
her disappearance in a remote part of the Mississinewa River area, in a thicket
located off of an access road in a wooded area. Evidence indicated Burns was
familiar with the area because he fished the Mississinewa River. Forensic
analysis revealed that Hurd suffered multiple fractures to her skull. A forensic
pathologist testified at trial that the most likely cause of Hurd’s death was a
head injury inflicted by another person. A forensic anthropologist testified that
Hurd suffered blunt force trauma to the left side of her face, her cheek bone,
and her lower jaw; that the trauma occurred “around the time of [Hurd’s]
death;” and that the trauma did not occur after Hurd’s death. Tr. p. 806. She
further testified that the trauma could have been caused by a baseball bat or
some other “long” instrument like a crow bar that could impact both the middle
of Hurd’s chin and her cheek bone at the same time. Id. at 814.
[22] Evidence was presented that Hurd told one of her daughters that she wanted to
meet with “little Donnie” so that she could give him family photographs.
Other evidence was presented showing Burns was not doing well financially,
was not steadily employed, was perpetually behind in paying his rent, and was
behind in paying his electricity bill. On the day that Hurd was last heard from
by relatives, Hurd left a note taped to the side door of her Noblesville, Hamilton
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County, Indiana, residence that indicated she was going to the cemetery with
Burns. Early in the afternoon on that day, Burns’ cell phone, which evidence
indicated he always carried with him, was used near the area where Hurd’s
remains were found, a remote area of Grant County near the Mississinewa
River. Later still that day, Burns was seen in a Walmart in Marion, Indiana,
using Hurd’s credit card to make jewelry purchases, and in a pawn shop
pawning Hurd’s wedding ring set. Also on that day, Burns delivered to his wife
one of the necklaces he purchased at Walmart using Hurd’s credit card and a
ring that belonged to Hurd. Evidence indicated that Burns must have taken
Hurd’s property from her person, as there were no signs of forced entry into
Hurd’s home, and evidence was presented that Hurd rarely removed her
wedding ring set from her finger.
[23] When a police officer attempted to approach Burns and question him about the
disappearance of Hurd, Burns fled. After Burns was apprehended and
questioned, he showed no concern and asked no questions about Hurd’s
disappearance. Burns also lied to the police when he was asked his
whereabouts on the day of Hurd’s disappearance. While incarcerated and
awaiting trial, Burns wrote to his wife and told her to “get rid” of the items he
gave her and to deny knowledge of the gifts. Tr. p. 594. He also wrote that
“things just got so out of control.” Tr. p. 595. Hurd was a five foot two inch,
seventy-four-year-old woman of slight build. Burns was a five foot ten inch,
forty-seven-year-old man weighing approximately 190 pounds. The multiple
blows to Hurd’s head and consequent fractures support an inference of intent to
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kill. The fact that Hurd knew Burns and that he could not avoid prosecution
for robbing her if she lived to tell of it also supports an inference of intent to kill.
[24] Although no single fact proves Burns’ intent to kill Hurd, we find that the
collective circumstantial evidence was sufficient to allow a reasonable jury to
infer that Burns intended to kill Hurd. Considering these facts together, the jury
could have found beyond a reasonable doubt that Burns intended to kill
Dorothy Hurd. Thus, sufficient evidence supports Burns’ murder conviction.
Conclusion
[25] For the reasons stated above, the judgment of the trial court is affirmed.
[26] Affirmed.
Robb, J., and Altice, J., concur.
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