MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Aug 04 2016, 8:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony C. Lawrence Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clarence Parsley, August 4, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1511-CR-1989
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1111-MR-2018
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Clarence Parsley (Parsley), appeals his conviction for
murder, a felony, Ind. Code § 35-42-2-1 (2011); and prisoner possessing device
or material, a Class B felony, I.C. § 35-44-3-9.5 (2011).
[2] We affirm.
ISSUES
[3] Parsley raises two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by admitting a photograph of
the victim, taken at a wedding years before the incident, to establish his identity
and the fact that he was alive prior to his murder; and
(2) Whether the trial court erred by permitting the jury to view Parsley in ankle
restraints during his testimony.
FACTS AND PROCEDURAL HISTORY
[4] On May 28, 2011, Timothy Knapp (Knapp) and Parsley were both incarcerated
at the Pendleton Correctional Facility Disciplinary Diagnostic Center and
housed in Unit 6D of its segregation wing. Knapp occupied Cell 1; while
Parsley was in Cell 8. On that day, Knapp and Parsley each requested
recreation time. A correctional officer escorted Knapp to the recreational area,
where Knapp was patted down before being placed in recreational cell 2.
Parsley was placed adjacent to Knapp, in recreational cell 3. At the time the
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altercation between Knapp and Parsley started, no correctional officers were
present. According to Parsley, Knapp directed “a derogatory statement” to him
within fifteen minutes of commencing the recreation period. (Transcript p.
1010). After about forty-five minutes, Parsley noticed Knapp trying to pry a
piece of fence off of Parsley’s recreational cell. Knapp told him that “he was
coming over to beat [his] ass” and called him “a snitch” loud enough for the
other prisoners to hear. (Tr. pp. 1013, 1018). Parsley grabbed part of the fence
in an effort to prevent Knapp from breaking it. However, determining his
efforts to be futile, Parsley entered Knapp’s recreational cell and started
struggling with Knapp. He claimed that Knapp pulled out “a weapon” which
he started “swinging” at Parsley’s face and neck. (Tr. p. 1029).
[5] Multiple officers arrived on the scene. They noticed the two men in the same
recreational cell, with Parsley standing over Knapp and Knapp asking the
officers to help him because Parsley was “killing [him].” (Tr. p. 598). Parsley
was holding a metal shank and was repeatedly stabbing Knapp with it. One of
the officers summoned an emergency response team to intervene. Meanwhile,
other officers pepper sprayed Parsley and ordered him to drop the shank and
back away from Knapp, to no avail. Parsley cut Knapp with the shank forty
times. Eventually, Parsley dropped the shank, backed up to the cuff port, and
was cuffed by the officers. The paramedic who examined Knapp noted that
Knapp had no pulse and was not breathing—resuscitation attempts failed and
he was pronounced dead. Of the forty stab wounds Knapp suffered, five were
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determined to be lethal and had been inflicted to Knapp’s heart, chest cavity,
and kidney.
[6] On November 1, 2011, the State filed an Information, charging Parsley with
murder and prisoner possessing dangerous device or material. On June 2
through June 5, 2015, the trial court conducted a jury trial. During the trial,
Rose Eggers (Eggers), Knapp’s mother, testified. Prior to Eggers taking the
stand, Parsley objected to her testimony as being cumulative, prejudicial, and
without any evidentiary value. He also objected to the admission of Knapp’s
photograph through Eggers’ testimony. The photograph was taken years before
this incident at Knapp’s brother’s wedding and depicted Knapp from the waist
up, dressed in wedding attire. Parsley claimed that the earlier introduction of
Knapp’s autopsy photos juxtaposed with this photograph would create a
prejudicial effect. The trial court overruled both objections.
[7] Prior to Parsley testifying, his counsel objected to the continued use of ankle
restraints that Parsley had worn throughout the trial when seated at the defense
table. While the restraints were hidden from view at the defense table, they
would be visible to the jury while seated at the witness stand when the jury
proceeded into the courtroom. The State objected to Parsley’s request to
remove the ankle restraints based on the nature of the charged crime and his
present incarceration for his prior voluntary manslaughter conviction. The trial
court provided three alternatives to Parsley, i.e., (1) moving the proceedings to
another courtroom; (2) having him testify from the counsel table; or (3) having
him testify from the witness stand with a temporary visual blockade. Defense
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counsel rejected these alternatives as these appeared to treat Parsley different
from the other witnesses.
[8] At the close of the evidence, the jury returned a guilty verdict on both Counts.
On October 19, 2015, the trial court conducted a sentencing hearing and
sentenced Parsley to sixty years for murder and fifteen years for prisoner
possessing dangerous device or material. The trial court ordered the sentences
to run consecutively to each other and consecutively to Parsley’s sentence in a
different cause.
[9] Parsley now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
[10] Parsley contends that the trial court abused its discretion by admitting into
evidence a photograph of Knapp. The photograph was taken several years ago
at Knapp’s brother’s wedding and was introduced to the jury through Knapp’s
mother’s testimony. It depicts Knapp from the waist up, dressed in formal
wedding attire and without any other individuals present. Parsley maintains
that “[t]he photograph was then juxtaposed against gruesome autopsy photos to
enflame the passions of the jury.” (Appellant’s Reply Br. p. 6). Accordingly,
Parsley argues that the State introduced the photograph as victim-impact
evidence designed to play to the jury’s sympathy and therefore it was
cumulative and prejudicial. The State claims that the photograph was relevant
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to prove that Knapp was alive, which was not contested by Parsley, and to
establish Knapp’s identity. 1
[11] Because the admission and exclusion of evidence falls within the sound
discretion of the trial court, this court reviews the admission of photographic
evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272
(Ind. 2002). All relevant evidence is generally admissible. Ind. Evidence Rule
401. Relevant evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be within the evidence.” Id. Relevant
evidence, including photographs, may be excluded only if its probative value is
substantially outweighed by the danger of unfair prejudice. Id. “Even gory and
revolting photographs may be admissible as long as they are relevant to some
material issue or show scenes that a witness could describe orally. Wilson, 765
N.E.2d at 1272. Photographs, even those gruesome in nature, are admissible if
they act as interpretative aids for the jury and have strong probative value. Id.
[12] Because murder involves the taking of a human life, the trier of fact must be
given some proof that the victim is actually dead but was alive before the date
and time of the killing. Humphrey v. State, 680 N.E.2d 836, 842 (Ind. 1997).
“The picture of a victim taken during life is technically relevant to establishing
1
In its appellate brief, the State also asserts that the photograph was relevant because it emphasized the size
difference between Knapp and Parsley and also served as an evaluation of a claim of self-defense. However,
the State did not advance these grounds before the trial court and they are therefore waived. See Craig v. State,
883 N.E.2d 218, 220 (Ind. Ct. App. 2008).
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that the victim was alive before the murder.” Pittman v. State, 885 N.E.2d 1246,
1256 (Ind. 2008) (quoting Humphrey, 680 N.E.2d at 842). But, like here, that
fact is rarely contested and usually easily established by less dramatic evidence.
Pitman, 885 N.E.2d at 1256. The State introduced the photograph through
Knapp’s mother while questioning her about the circumstances and the
moment she was notified of her son’s death. “This smacks of victim impact
evidence and is to be discouraged due to its possible emotional impact on the
jury.” Humphrey, 680 N.E.2d at 842.
[13] When this photograph was introduced, the jury had already seen photographs
of Knapp’s gruesome injuries. They also had heard the testimony of multiple
witnesses—three correctional officers, a state police investigator, and a forensic
pathologist—who had talked to Knapp on the day of the incident and who had
identified him by sight, height, weight, and appearance. Juxtaposing those
photographs with a picture of a young, healthy, and celebratory victim created
a prejudicial impact that outweighed the photograph’s probative value.
Therefore, we conclude that the admission of Knapp’s photograph was error.
[14] Nevertheless, if a trial court abused its discretion by admitting the challenged
evidence, we will only reverse for that error if “the error is inconsistent with
substantial justice” or if “a substantial right of the party is affected.” Payne v.
State, 854 N.E.2d 7, 17 (Ind. Ct. App. 2006). Any error caused by the
admission of evidence is harmless error for which we will not reverse a
conviction if the erroneously admitted evidence was cumulative of other
evidence appropriately admitted or if “the conviction is supported by
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independent evidence of guilt such that there is little likelihood that the
challenged evidence contributed to the verdict.” Id.; Blount v. State, 22 N.E.3d
559, 564 (Ind. 2014). Evidence was presented that Parsley stabbed Knapp forty
times, with five of those wounds being fatal. Several correctional officers
testified that Parsley continued stabbing Knapp even after being ordered to stop
and after being pepper sprayed. Accordingly, given the “avalanche of
evidence” of Parsley’s guilt, we conclude that the erroneous admission of
Knapp’s photograph was harmless. Weedman v. State, 21 N.E.3d 873, 895 (Ind.
Ct. App. 2014), trans. denied
II. Ankle Restraints
[15] Next, Parsley contends that the trial court abused its discretion when it forced
him to testify while wearing ankle restraints. A defendant has the right to
appear in front of a jury without physical restraints, unless such restraints are
necessary to prevent the defendant’s escape, to protect those in the courtroom,
or to maintain order during trial. Bivins v. State, 642 N.E.2d 928, 936 (Ind.
1994), cert. denied, 516 U.S. 1116 (2000). This right springs from the basic
principle of American jurisprudence that a person accused of a crime is
presumed innocent until proven guilty beyond a reasonable doubt. Wrinkles v.
State, 749 N.E.2d 1179, 1193 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002). For
this presumption to be effective, courts must guard against practices that
unnecessarily mark the defendant as a dangerous character or suggest that his
guilt is a foregone conclusion. Id. As such “the facts and reasoning supporting
the trial judge’s determination that restraints are necessary must be placed on
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the record. 2 Id. (citing Coates v. State, 487 N.e.2d 167, 169 (Ind. Ct. App. 1985),
overruled on other grounds by Hahn v. State, 533 N.E.2d 618 (Ind. Ct. App. 1989)).
Typical methods of restraint include handcuffs, shackles, security chairs, and
gagging a defendant. Wrinkles, 749 N.E.2d at 1193. An order to restrain a
defendant is reviewed for an abuse of discretion. Forte v. State, 759 N.E.2d 206,
208 (Ind. 2001).
[16] During a pretrial hearing, the parties discussed the security measures to be
taken during the trial. Parsley’s classification within the correctional facility
was high and, even at the time of trial, he remained segregated from the general
prison population. Parsley’s counsel informed the trial court that “[i]f it’s
simply ankle restraints, we don’t object.” (Tr. p. 284). “I want his arms to be
open so he can take notes, consult with us. We’re not afraid of him.” (Tr. p.
285). But he cautioned that he did not agree to his client wearing ankle
restraints when “he takes the stand.” (Tr. p. 284). The State objected to taking
the ankle restraints off on the stand, but suggested to place Parsley on the
witness stand outside the presence of the jury “so nobody see them.” (Tr. p.
284). The parties also noted that a Department of Correction S.E.R.T. team of
six officers dressed in black suits would be present in the courtroom during the
proceedings to monitor Parsley.
2
In his reply brief, Parsley, for the first time, asserts that the trial court’s record is insufficient. However,
parties may not raise an issue for the first time in a reply brief. See, e.g., Sisson v. State, 985 N.E.2d 1, 20 n.9
(Ind. Ct. App. 2012), trans. denied. Accordingly, Parsley waived the allegation.
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[17] Prior to Parsley taking the witness during the trial, the parties again discussed
Parsley’s ankle restraints, which had been invisible to the jury under the defense
counsel’s table. However, due to the design of the witness stand, when
testifying, the jurors, especially those seated “in the far right hand corner of the
jury box[,] are likely going to be able to see [Parsley’s] feet and shackles when
he testifies.” (Tr. p. 976). The trial court agreed that nobody “would dispute
that it’s a possibility that if the jurors look down there they’re going to see his
shackles as they’re coming into the jury box.” (Tr. p. 978). The State objected
to removing the ankle restraints “given the nature of this crime, and the reason
that he is currently incarcerated” for a voluntary manslaughter offense. (Tr. pp.
981-82). When Parsley repeated his objection to testifying wearing his ankle
restraints, the trial court offered him three alternatives: (1) Parsley could testify
from the counsel table; (2) the proceedings could be moved to a different
courtroom with a witness box that was more discreet; or (3) he could testify
from the witness stand “with the shackles on but with some temporary visual
blockade[.]” (Tr. p. 977). Parsley rejected all offered options because he did
not want to be “treated any different than any other witness . . . that would
make the jury treat his testimony differently.” (Tr. p. 977). Accordingly,
Parsley elected, with objection, to testify at the stand with his shackles on.
Defense counsel further noted
[p]art of our reason in doing this is there are six (6) S.E.R.T.
Team members here. I don’t think that there’s probably any
juror that hasn’t realized that they’re there with [Parsley] as
security personnel, not as his friends. And so I doubt that they
don’t realize that he’s in custody anyway.
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(Tr. p. 980).
[18] “Protection of those in the courtroom is a recognized reason for restraining a
defendant, and the facts and circumstances before the trial court support that
rationale.” Overstreet v. State, 877 N.E.2d 144, 160 (Ind. 2007), reh’g denied.
Here, Parsley wore ankle restraints during the trial proceedings, which were
invisible to the jurors, except for when he was testifying from the stand. While
the trial court acknowledged the likelihood of some jurors noticing the shackles,
Parsley does not direct us to any evidence establishing that the jurors actually
saw him shackled. Parsley had a high security classification, had been
convicted of manslaughter, and was standing trial for a particular violent
murder. At all times, six S.E.R.T. members were present in the courtroom to
monitor Parsley’s behavior. Accordingly, even though Parsley behaved at trial,
he had a history of violent acts committed against others such as to make him a
security risk. See Forte, 759 N.E.2d at 208 (a trial court may consider the
defendant’s history of behavior outside of the courtroom when deciding
whether shackling would be necessary during trial). Moreover, the jury was
aware that Parsley was incarcerated in a maximum security prison because that
was the setting of the current charge. Therefore, “[i]n a trial such as the case at
bar, jurors would reasonably expect that any one in police custody would be
restrained.” Malott v. State, 485 N.E.2d 879 (Ind. 1985). We cannot conclude
that Parsley’s presumption of innocence was undermined in a significant way.
See Wrinkles, 749 N.E.2d at 1193. “A defendant is entitled to a fair trial, not a
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perfect one.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014). The trial court did
not abuse its discretion.
CONCLUSION
[19] Based on the foregoing, we conclude that it was harmless error to admit a
photograph of the victim, taken at a wedding and years before the incident, and
the trial court did not abuse its discretion by permitting the jury to likely view
Parsley in ankle restraints during his testimony
[20] Affirmed.
[21] Kirsch, J. and Pyle, J. concur
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