ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen M. Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
David P. Freund Arthur Thaddeus Perry
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
JAMES SWINGLEY, )
Defendant-Appellant, )
)
v. ) 18S00-9905-CR-271
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
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APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Steven R. Caldemeyer
Cause No. 18C01-9805-CF-34
________________________________________________
On Direct Appeal
December 1, 2000
DICKSON, Justice
The defendant, James Swingley, was convicted of murder[1] for the
November 12, 1996, killing of Brian Insco in Muncie, Indiana. The
defendant's one claim on appeal is that three autopsy photographs were
erroneously admitted into evidence thereby infringing his right to a fair
trial.
The defendant's claim focuses on three slides in a ten-slide
presentation labeled collectively as State's Exhibit 13. Record at 594.
These slides were projected on a screen during the pathologist's testimony.
The defendant argues that the probative value of the slides was outweighed
by their prejudicial effect. 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 abuse of
discretion. Byers v. State, 709 N.E.2d 1024, 1028 (Ind. 1999); Amburgey v.
State, 696 N.E.2d 44, 45 (Ind. 1998). Relevant evidence, including
photographs, may be excluded only if its probative value is substantially
outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403;
Byers, 709 N.E.2d at 1028. "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." Amburgey, 696 N.E.2d at 45;
see also Byers, 709 N.E.2d at 1028. Photographs, even those gruesome in
nature, are admissible if they act as interpretative aids for the jury and
have strong probative value. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind.
1999); Robinson v. State, 693 N.E.2d 548, 553 (Ind. 1998).
The defendant does not dispute that this is the standard of review
but points to Allen v. State, 686 N.E.2d 760 (Ind. 1997), cert. denied, 525
U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999), for the proposition that
"autopsy photographs are generally inadmissible if they show the body in an
altered condition." Id. at 776. When a body is altered for a photograph,
the concern is that the handiwork of the physician may be imputed to the
accused assailant and "'thereby render the defendant responsible in the
minds of the jurors for the cuts, incisions, and indignity of an autopsy.'"
Id. (quoting Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982)). While this
is the general rule, we have recognized exceptions. In Fentress v. State,
702 N.E.2d 721 (Ind. 1998), we held two photographs, which depicted the
victim's skull with the hair and skin pulled away from it, admissible
notwithstanding Allen. Because the pathologist had explained what he had
done and the alteration was necessary to determine the extent of the
victim's injuries, we found that the "potential for confusion was minimal"
and that the probative value outweighed the prejudicial effect. Fentress,
702 N.E.2d at 722.
We also found autopsy photographs depicting a body that had been
altered to be admissible in Cutter v. State, 725 N.E.2d 401, 406 (Ind.
2000). The photograph at issue in Cutter depicted a pathologist's hand
holding open the victim's vagina to display bruises that were relevant to
the "by force" element of the rape charge. Id. We stated this photograph
was admissible because the "distortion was necessary to show the jury [the
victim's] largely internal injury." Id. As these cases show, there are
situations where some alteration of the body is allowed where necessary to
demonstrate the testimony being given.
The cause of death in this case was exsanguination (bleeding to
death) from a cut in the neck that extended about one-third of the way
through. Record at 603. Two of the photographs depict the victim's gaping
neck wound. The pathologist had done nothing to the wound other than to
clean it. The record is unclear as to the extent the body was altered so
that the wound was open, but even if the body was positioned in such a way
as to open the wound more than it was originally, the positioning was
necessary to show the extent of the wound and the cause of death. Also, in
regards to the second slide where the wound is the most open, the
pathologist stated that he had opened the wound to show the blood vessels
that had been cut (resulting in death). Record at 603. As the probative
value of these slides outweighed their prejudicial effect, the admission of
these two slides was not error.
The third slide depicted the victim's windpipe or larynx removed from
the body and lying on a sheet. This is the type of alteration Allen
contemplates, and as other photographs depicted the extent of the
defendant's wounds and the cause of his death, the additional altered
photograph was unnecessary. See Turben v. State, 726 N.E.2d 1245, 1247
(Ind. 2000)(photograph inadmissible that depicted gloved hands manipulating
a bloody mass with a probe, the mass purportedly represented the victim's
head with the skin and bones cut open and peeled back to expose the
interior of the victim's neck). Because its potential for prejudice
outweighed it probative value, the trial court erred in allowing the
admission of the slide depicting the removed windpipe.
However, finding that the trial court erred in admitting the
photograph is not enough to warrant reversal. Errors in the admission or
exclusion of evidence are to be disregarded as harmless error unless they
affect the substantial rights of the party. Ind. Trial Rule 61; Fleener v.
State, 656 N.E.2d 1140, 1141 (Ind. 1995). To determine whether an error in
the introduction of evidence affected the appellant's substantial rights,
this Court must assess the probable impact of that evidence upon the jury.
Alva v. State, 605 N.E.2d 169, 171 (Ind. 1993).
The defendant argues that the error was not harmless, but "swayed the
jury to ignore the huge credibility gaps in the State's case." Brief of
Defendant-Appellant at 33. The defendant also alleges inconsistencies in
the witnesses' testimony. We find it improbable that the gruesome slide
had any significant impact on the jury's decision. Two men saw the
defendant commit the crime, and four other people on separate occasions
heard the defendant state that he cut the victim's throat. In light of
this evidence of guilt, we find that the probable impact of the erroneous
admission of the windpipe slide did not affect the defendant's substantial
rights, and that the error in admitting the exhibit must be disregarded as
harmless error.
We affirm the defendant's conviction for murder.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1.