ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
BRIAN J. MAY STEVE CARTER
South Bend, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
RICHARD OLIVER, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 71S00-9912-CR-699
v. )
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9809-CF-399
ON DIRECT APPEAL
September 28, 2001
RUCKER, Justice
A jury convicted Richard Oliver of murder in the stabbing death of
Donald Kime. The jury also adjudged Oliver a habitual offender. The trial
court sentenced him to sixty-five years for the murder enhanced by thirty
years for the habitual offender adjudication. In this direct appeal,
Oliver raises five issues for our review, which we reorder and rephrase as
follows: (1) did the trial court err in denying Oliver’s motion for a
mistrial; (2) did the trial court err by admitting into evidence the
details of one of Oliver’s prior convictions; (3) did the trial court err
by admitting into evidence an autopsy photograph; (4) is the evidence
sufficient to sustain the conviction; and (5) did the trial court err
during the habitual offender phase of trial by improperly admitting certain
documents into evidence.
We affirm.
Facts
The body of sixty-eight-year-old Donald Kime was discovered in his
South Bend apartment on December 27, 1997. The ensuing investigation led
to Oliver. In a videotaped interview with police, Oliver declared that on
December 26, 1997, he was present in Mr. Kime’s home when Mr. Kime began
making sexual advances toward him. According to Oliver, a scuffle ensued,
and Oliver “just stuck the knife out, and it hit him.” R. at 715. A
pathologist testified that Mr. Kime suffered three stab wounds, two were
superficial and the third penetrated his sternum and aorta. According to
the pathologist, “a lot of force” was required to cut through the sternum.
R. at 462. The cause of death was blood loss from the perforated aorta.
A jury convicted Oliver of murder and adjudged him a habitual
offender. The trial court sentenced Oliver to a total term of ninety-five
years. This direct appeal followed. Additional facts are set forth below
where relevant.
Discussion
I.
Oliver first contends the trial court erred in denying his motion for
a mistrial. The facts are these. During voir dire, prospective juror Juan
Rivera mentioned that he had heard of Oliver’s prior convictions:
JUROR RIVERA: Yeah, all the press and the media, they got like
prior convictions, and they slammed him really bad.
THE COURT: They allege all kinds of things, and they may be very
wrong. You understand? They often are. But can you put that aside,
or are you going to -- is that sort of a stain there that you can’t
really get around.
JUROR RIVERA: Well, they mentioned that he was a--.
THE COURT: I just want to know what you think?
JUROR RIVERA: I don’t know, I don’t know if I could be objective,
you know.
THE COURT: Well, okay. I don’t know if the lawyers want to talk to
you further. But I appreciate you telling us that.
R. at 343-44. Defense counsel moved for a mistrial because of Rivera’s
statements:
MR. DRENDALL: Generally, we would move for a mistrial and move to
excuse the panel. Mr. Rivera started to say that he had read that
actually he had said that he had read that Mr. Oliver had beat
somebody up and he went on to begin to say that he was a habitual.
THE COURT: I don’t think he got it out. You’re trained to listen for
that and I’m trained to listen for that, but I’ll bet this jury didn’t
hear it.
R. at 357. The trial court denied the motion but excused Rivera for cause.
Later, the trial court asked the remaining prospective jurors whether
anyone had a problem deciding the case on the evidence presented at trial
as opposed to anything heard in the press or during voir dire. The
prospective jurors assured the trial court their decision would be based on
the evidence presented at trial. Defense counsel renewed his motion for a
mistrial, which the trial court again denied. Oliver claims error.
A mistrial is an extreme remedy granted only when no other method can
rectify the situation. Jackson v. State, 728 N.E.2d 147, 151 (Ind. 2000).
The denial of a mistrial lies within the sound discretion of the trial
court, and reversal is required only if the defendant demonstrates that he
was so prejudiced that he was placed in a position of grave peril. Gill v.
State, 730 N.E.2d 709, 712 (Ind. 2000). The gravity of peril is measured
by the probable persuasive effect on the jury’s decision. Id. The trial
judge is in the best position to gauge the surrounding circumstances and
the potential impact on the jury when deciding whether a mistrial is
appropriate. Id.
The facts of this case are remarkably similar to those in Leach v.
State, 699 N.E.2d 641 (Ind. 1998). In that case a prospective juror
declared during voir dire: “[t]he only thing that would bother me is . . .
the second charge that the State has against the gentlemen [sic] being a
Habitual Criminal.” Id. at 644 (quotation omitted). Defense counsel moved
for a mistrial, which the trial court denied. On appeal, this Court
determined that because the comment was limited and the evidence against
the defendant was overwhelming, the trial court did not err in denying the
motion for a mistrial. Id. at 645.
Likewise, Rivera’s comment regarding Oliver’s criminal history was
limited, and the evidence against Oliver is overwhelming - he admitted to
the stabbing. Also, Oliver has
neither alleged nor demonstrated that the trial court’s inquiry of the
remaining prospective jurors was inadequate. We conclude the trial court
did not err in denying Oliver’s motion for a mistrial.
II.
Oliver next contends the trial court abused its discretion by
admitting evidence concerning the details of one of his prior convictions.
We disagree. The record shows that Oliver took the stand in his own
defense and admitted stabbing Mr. Kime. In an apparent effort to bolster
his claim of self-defense and to show that the use of a knife was his only
reasonable alternative, Oliver talked about his size and weight relative to
Mr. Kime’s size and weight. The left-handed Oliver also claimed that
because of a shooting incident that resulted in an injury, he now possessed
limited strength in his left hand and no strength in his right hand.
Oliver testified, “I can’t fight, I can’t really grab a person like I used
to do it before I got shot.” R. at 779. In a strategic move, Oliver also
admitted several convictions including a robbery that was the result of a
plea agreement.
Before beginning cross-examination, the State sought a side-bar
conference to determine whether the trial court would allow an inquiry into
the details of the robbery conviction. Pointing out that the robbery
involved force and occurred in May 1998, the State argued that it was
entitled to pursue this line of questioning to impeach Oliver’s testimony
that he had no strength in his right hand and limited strength in his left
hand a mere five months earlier. The trial court allowed the inquiry.
Over defense counsel’s objection, the State proceeded to ask Oliver a
series of questions concerning the details of the robbery. The
trial court struck those questions not specifically related to Oliver’s use
of force. Ultimately, Oliver admitted that he struggled with his female
victim and robbed her at knifepoint.
Generally, when a prior conviction is introduced for impeachment
purposes, the details of the conviction may not be explored. Skaggs v.
State, 260 Ind. 180, 293 N.E.2d 781, 785 (1973); see also Ind. Evidence
Rule 609(a) (allowing impeachment by evidence of certain “infamous crimes”
and crimes involving dishonesty or false statement). Rather, a witness may
be questioned only about whether he or she had been previously convicted of
a particular crime. Skaggs, 293 N.E.2d at 785. However:
When a party touches upon a subject in direct examination, leaving the
trier of fact with a false or misleading impression of the facts
related, the direct examiner may be held to have opened the door to
the cross examiner to explore the subject fully, even if the matter so
brought out on cross examination would have otherwise been
inadmissible.
Tawdul v. State, 720 N.E.2d 1211, 1217-18 (Ind. Ct. App. 1999) (quotations
omitted), trans. denied.
We first observe that even assuming Oliver “opened the door,” the
question of whether he possessed enough strength to rob someone five months
after he stabbed the victim in this case is only marginally relevant and
related to a collateral matter. “A claim of self-defense in a homicide
prosecution requires, among other things, that the defendant had a
reasonable belief that deadly force was ‘necessary to prevent serious
bodily injury to himself or a third person or the commission of a forcible
felony.’” Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999) (quoting Ind.
Code § 35-41-3-2 (a)). Whether Oliver possessed the physical strength to
rob a female victim on one occasion does not make it more or less probable
that
he had the physical strength to defend himself against an alleged male
attacker on this occasion.
Indeed, the State’s real motivation can be gleaned from the questions
asked on cross-examination. It is apparent the State’s strategy was to
place before the jury the details of Oliver’s previous conviction for the
sole purpose of creating the forbidden inference, namely: prior wrongful
conduct suggests present guilt. See Byers v. State, 709 N.E.2d 1024, 1026-
27 (Ind. 1999) (commenting that Indiana Evidence Rule 404(b) is designed to
prevent the jury from making the “forbidden inference”). However, Oliver
has demonstrated no harm. The record shows that Oliver’s counsel objected
to each question posed by the State concerning the details of the robbery
conviction. The trial court sustained the objections for all questions not
relating to Oliver’s use of force and ordered the questions stricken from
the record. There is a presumption the jury followed the trial court’s
admonition and that the State’s improper questioning played no part in the
jury’s deliberation. See Heavrin v. State, 675 N.E.2d 1075, 1084 (Ind.
1996). As for the use of force, Oliver denied the State’s major premise,
namely: that he held down the victim of the robbery with his right hand
while wielding a knife with his left hand. And the State offered no
evidence in rebuttal on this point. In the end, the State was left with
Oliver merely admitting on cross-examination that the robbery involved a
struggle and a knife. This can hardly be described as damaging evidence.
Trial courts possess broad discretion in ruling on the admissibility of
evidence,
and we reverse only for abuse of that discretion. Appleton v. State, 740
N.E.2d 122, 124 (Ind. 2001); Bacher v. State, 686 N.E.2d 791, 795 (Ind.
1997). We find no abuse of discretion here.
III.
Oliver next contends the trial court erred by admitting into evidence
an autopsy photograph that depicted Mr. Kime’s chest wound measured by a
two-inch ruler. He complains the photograph “was not critical to the
State’s case inasmuch as [defense] counsel admitted in his opening remarks
that his client stabbed the victim and he died as a result.” Br. of
Appellant at 11. Oliver acknowledges that existing case authority permits
the introduction of evidence on an issue which one party unilaterally
concedes or offers to stipulate. See, e.g., Butler v. State, 647 N.E.2d
631, 634 (Ind. 1995) (finding autopsy photographs admissible even though
defense counsel admitted in his opening statement that the defendant
stabbed the victims and they died as a result). Nevertheless, citing no
authority on the point and making no cogent argument in support, Oliver
asks this Court to “reconsider the law.” Br. of Appellant at 11. We
decline.
IV.
Oliver next contends the evidence is insufficient to sustain his
murder conviction. When reviewing a claim of insufficient evidence, we
consider only the evidence that supports the verdict and draw all
reasonable inferences therefrom. Johnson v. State, 743 N.E.2d 755, 757
(Ind. 2001). We do not reweigh the evidence or judge the credibility of
the witnesses. Id. We uphold a conviction if there is substantial
evidence of probative value
from which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Id.
The State charged Oliver with murder for the “knowing” killing of Mr.
Kime. “A person engages in conduct ‘knowingly’ if, when he engages in the
conduct, he is aware of a high probability that he is doing so.” I.C. § 35-
41-2-2(b). “A knowing killing may be inferred from the use of a deadly
weapon in a manner likely to cause death.” Hawkins v. State, 748 N.E.2d
362, 363 (Ind. 2001), reh’g denied. The evidence shows that Oliver stabbed
Mr. Kime three times, one of which penetrated his sternum and aorta with “a
lot of force.” R. at 462. Apparently acknowledging the strength of this
evidence, Oliver claims “he never intended to kill Donald Kime” and “[t]he
jury should have accepted his statement.” Br. of Appellant at 13. The
jury did not accept Oliver’s statement on this point, nor was it bound to
do so. The evidence is sufficient to sustain the conviction. We find no
error on this issue.
V.
For his final allegation of error, Oliver contends the trial court
erred by admitting into evidence a record of a prior conviction during the
habitual offender phase of trial because it was not properly certified.
The record shows the State introduced an exhibit detailing Oliver’s
conviction and sentence for a prior felony offense committed in the State
of Missouri. The exhibit consisted of six pages and contained a
certification on the first page made by the Corrections Records Manager of
the Fulton, Missouri Reception and Diagnostic Center. Oliver argues that
the certification on the first page of the exhibit without reference
to the total number of pages actually certified is an insufficient
authentication of the multi-paged exhibit.
We confronted a similar claim in Hernandez v. State, 716 N.E.2d 948
(Ind. 1999), reh’g denied. The challenged exhibits in that case consisted
of a two-page probable cause affidavit containing a certification stamp and
signature of the clerk on the first page only and a three-page sentencing
order containing a certification stamp and signature of the clerk on the
last page only. In each exhibit, the clerk left blank a part of the stamp
providing for the total number of pages being certified. Our review of the
exhibits revealed that each was a complete, individual document. We
concluded “[t]he certification on a single ‘page’ of either challenged
exhibit provided adequate certification for the entirety of each exhibit as
the certification placement ‘in no way caus[ed] confusion as to the
authenticity of the paper.’” Id. at 952 (quoting Chanley v. State, 583
N.E.2d 126, 131 (Ind. 1991)).
The same is true here. Oliver’s name and inmate number is listed on
the first four pages of the six-page exhibit. Additionally, his name is
listed on the fifth page and his inmate number is listed on the last page.
The trial court properly admitted the exhibit into evidence. See Kidd v.
State, 738 N.E.2d 1039, 1043-44 (Ind. 2000) (finding the trial court did
not err in admitting a multi-paged exhibit that contained a certification
on the last page only because several pages of the exhibit contained the
same cause number), reh’g denied. We find no error.
Conclusion
We affirm the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.