Wright v. State

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

R. Brent Zook                           Karen Freeman-Wilson
Goshen, Indiana                   Attorney General of Indiana

                                        Thomas D. Perkins
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



JAMES F. WRIGHT, JR.,             )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )Cause No. 20S00-9808-CR-431
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )




                    APPEAL FROM THE ELKHART CIRCUIT COURT
                     The Honorable Gene R. Duffin, Judge
                         Cause No. 20C01-9706-CF-30


                                July 3, 2000


SHEPARD, Chief Justice.





      The appellant James Wright appeals from a  conviction  of  murder  and
presents four issues of our review:
        I. Whether the trial court properly instructed the jury  about  the
           State’s burden of proof.


       II. Whether the trial court correctly instructed the jury  regarding
           the statutory intoxication defense.

      III. Whether the trial court properly admitted several photographs of
           the victim.

       IV. Whether  the  trial  court  properly  admitted  several  hearsay
           statements.


      In the early morning of May 31, 1997, Debra Damron went to the home of
her mother, Barbara Marshall, and found Marshall dead, lying on  her  living
room floor in a pool of blood, amid several knives.  The cause of death  was
a stab wound to the neck, accompanied  by  strangulation.   Marshall’s  body
had a total of sixty-five incisional wounds.


      At some point, investigation of the murder focused  on  James  Wright,
who was Marshall’s neighbor.  Wright then gave a statement to the police  in
which he admitted going to  Marshall’s  home  on  May  31st.   According  to
Wright, he went to her home to use the telephone because he was  locked  out
of his own home.  While he was using  the  phone,  Marshall  approached  him
with a knife.  An altercation ensued, during which Wright stabbed  Marshall,
then fled.  A search of Marshall’s home uncovered two  blood  spots  in  the
hallway near one of the doors.  The DNA  contained  in  this  blood  matched
that of Wright.


      Wright was convicted of murder and sentenced to sixty-five years.






                      I.  Reasonable Doubt Instructions


      Wright first contends that three of the  jury  instructions  regarding
reasonable doubt and  the  jury’s  duty  were  improper  because  they  were
mandatory in nature.  (Appellant’s Br. at 16.)


      The  thrust  of  Wright’s  claim  is  that  the  court’s  instructions
impermissibly impinged upon the jury’s role under Article I, section  19  of
the Indiana Constitution, which states:  “In all  criminal  cases  whatever,
the jury shall have the right to determine the law and the facts.”


      The defense did not object to these instructions at trial.  Failure to
object to a jury instruction results in waiver on appeal, unless giving  the
instruction was fundamental error.  Brown v.  State,  691  N.E.2d  438,  444
(Ind.  1998).   Error  is  fundamental  if  it  is  “a  substantial  blatant
violation of basic principles” and where, if not corrected, it would deny  a
defendant fundamental due process.  Id.

      Two of  the  instructions  in  question  read  in  pertinent  part  as
follows:
                            Instruction 15


           The State has the burden of proving that the defendant is guilty
      beyond a reasonable doubt. . . .  Proof beyond a reasonable  doubt  is
      proof that leaves you firmly convinced of the defendant’s guilt. . . .
       If, based on your consideration  of  the  evidence,  you  are  firmly
      convinced that the defendant is  guilty  of  the  crime  charged,  you
      should find him guilty.  If on the other hand, you think  there  is  a
      real possibility that he is  not  guilty,  you  should  give  him  the
      benefit of the doubt and find him not guilty.


(R. at 158, 727-28.)



                            Instruction 21


            I submit this case to you with  the  confidence  that  you  will
      faithfully discharge the grave duty resting upon you, bearing in  mind
      that the liberty of the accused is not to be trifled away nor taken by
      careless  or  inconsiderate  judgment;  but   if   after   a   careful
      consideration of the  law  and  the  evidence  in  the  case  you  are
      satisfied beyond a reasonable doubt that the defendant is guilty,  you
      should return your verdict accordingly.  Duty demands it and  the  law
      requires it.


(R. at 165, 733.)

      Instructions 15 and 21 do not violate  Article  I,  section  19.   The
instructions inform the jurors that if they  conclude  beyond  a  reasonable
doubt that the defendant is guilty, they should return a verdict of  guilty.
 The instructions are hardly offensive to any of  our  fundamental  precepts
of criminal justice; indeed, we have approved of them  in  several  previous
cases.  See Barber v. State, 715 N.E.2d 848, 851 (Ind. 1999);  Winegeart  v.
State, 665 N.E.2d 893, 895 (Ind. 1996).

      We now turn to the third instruction at issue, which read:

                            Instruction 16

            All the material allegations of the information must  have  been
      proved by the evidence beyond a reasonable doubt before you  would  be
      warranted in  convicting  the  Defendant.   If  anyone  [sic]  of  the
      material allegations has not been so proved, it would be your duty  to
      acquit.  If all the material allegations of the information have  been
      so proved, it is your duty to convict the Defendant.


(R. at 159, 728-29.)

      Our caselaw on similar instructions makes several distinctions.

      First, it is proper to tell the jury  it  “should”  convict.   Justice
DeBruler outlined the rule in Loftis v. State, 256  Ind.  417,  419-20,  269
N.E.2d 746, 747 (1971):
            The principle is established that a trial court may instruct the
      jury that if they find  that  all  the  material  allegations  of  the
      indictment or affidavit are proven beyond a reasonable doubt that they
      “should” convict the defendants.  However, such an  instruction  would
      be erroneous where the court failed to  set  forth  all  the  material
      allegations which the state must prove  before  a  conviction  can  be
      obtained or where the court failed to instruct the jury that they were
      the judges of the law as well as the facts.

      Second, as the Loftis court recognized, it is error  to  mandate  that
jurors return a guilty  verdict  upon  a  finding  of  certain  specifically
mentioned facts.  In Pritchard v. State, 248 Ind. 566, 568, 230 N.E.2d  416,
417 (1967), the trial court instructed the jury as follows:
      The Court now  instructs  you  that  if  you  should  find  that  [the
      defendant] . . . [was] guilty of cruelty  or  neglect  of  Kathy  Jean
      Pritchard and that as a result of such cruelty  or  neglect  beyond  a
      reasonable doubt Kathy Jean Pritchard did sicken,  languish  and  die,
      then you shall find such defendant guilty of involuntary manslaughter.




(emphasis omitted).  We held this instruction  impinged  upon  the  role  of
jurors under our state Constitution.  Id. at 576, 230 N.E.2d at 421.

      Third, instructions that might be erroneous do not constitute  grounds
for reversal where no objection was  lodged.   Fundamental  error  does  not
occur, for example, even when the trial judge gives the jurors a  relatively
strong directive, so long as the court also tells them the elements  of  the
offense and reminds them that they are the judges  of  both  law  and  fact.
Barker v. State, 440 N.E.2d 664 (Ind.  1982)  (no  fundamental  error  where
instructions told jury that it “must”  convict  if  material  elements  were
proven and that it was judge of both law and  facts);  see  also  Taylor  v.
State, 420 N.E.2d 1231 (Ind. 1981) (no fundamental error  to  tell  jury  it
“must find the Defendant guilty” if material allegations are  proven  beyond
a  reasonable  doubt  where  no  “Pritchard  instruction”  was   given   and
instruction on jury as judge of law and facts was given).

      The instructions here fit inside the holdings of  Barker  and  Taylor.
The trial court gave a final instruction on the elements of murder.  (R.  at
145.)  It also instructed the jurors that they were the judges of  both  the
law and the facts, and that they were to consider all  the  instructions  as
they  relate  to  each  other.   (R.  at  143,  162.)   Any  error  was  not
fundamental.


                   II.  Voluntary Intoxication Instruction

      Wright also asserts that the trial court wrongly instructed  the  jury
about whether  it  could  consider  evidence  of  Wright’s  intoxication  in
assessing his mens rea as an element of the murder offense.

      We have had other occasions to consider such a claim.

      When Wright committed the offense in question, Ind.  Code  §  35-41-3-
5(b) read:  “Voluntary intoxication is a defense only to the extent that  it
negates an element of an offense referred to by the phrase  with  intent  to
or with an intention to.”  This Court held that statute  void  in  Terry  v.
State, 465 N.E.2d 1085, 1088 (Ind. 1984), saying the voluntary  intoxication
defense can be offered for any crime, regardless of the exact language  used
in defining the elements of the crime.

      Even giving an instruction based on this voided statute, however, does
not always require a new trial.  In Horan v.  State,  682  N.E.2d  502,  509
(Ind. 1997), the trial court did precisely that, but the defendant  did  not
object.  Because none of the  charged  crimes  contained  the  phrase  “with
intent to” or “with an intention to”, the  legal  upshot  of  the  erroneous
instruction was that voluntary intoxication was not a defense  available  to
Horan.


      We affirmed the conviction anyway.  As Justice Sullivan put it, when a
defendant “was not entitled to a voluntary intoxication instruction  in  the
first place, it could not have been fundamental error to  give  a  defective
one.”[1]  Id.

      A voluntary intoxication instruction  is  required  only  where  “‘the
evidence relevant to the defense, if believed, was such that it  could  have
created a reasonable doubt in the jury’s mind that  the  accused  had  acted
with the requisite mental state.’”  Id. (quoting Van Cleave, 674  N.E.2d  at
1303).  As Justice Boehm recently observed,  establishing  reasonable  doubt
through an intoxication instruction “is not  an  easy  threshold  to  meet.”
Van Cleave, 674 N.E.2d at 1303.  The author of Terry, Chief  Justice  Givan,
thought it  required  showing  the  defendant  was  “completely  non  compos
mentis.”  Sills v. State, 463 N.E.2d 228,  242  (Ind.  1984)  (Givan,  C.J.,
concurring).

      The degree of intoxication is immaterial; rather, the issue is whether
the accused was still able to form the mens  rea  required  for  the  crime.
Van Cleave, 674 N.E.2d at 1303.  Evidence that shows a defendant could  form
the requisite mens rea includes proof such as  his  ability  to  “‘devise  a
plan, operate equipment, instruct the behavior of others, or carry out  acts
requiring physical skill.’”  Id. (quoting Owens v. State,  659  N.E.2d  466,
473 (Ind. 1995)).[2]

      After reviewing the record, we conclude  that  the  evidence  did  not
demonstrate that Wright was so intoxicated at the time  the  crime  occurred
as to prevent him from forming the  requisite  intent  to  murder.   Several
days after Barbara Marshall was murdered, Wright spoke with the  police  and
gave them a statement regarding his activities on May 31,  1997.   A  review
of Wright’s statement reveals  that  he  was  able  to  give  the  police  a
comprehensive account of his activities, providing details substantiated  by
other witnesses.


      For example, Wright told the police that, early in the evening,  after
he had consumed crack cocaine, he went to  an  ATM  and  withdrew  cash,  an
operation that requires  a  fair  level  of  consciousness.   (R.  at  565.)
Officer Windbigler corroborated Wright  on  this  score;  he  found  an  ATM
receipt in Wright’s sweatpants following a search of Wright’s home.  (R.  at
590.)  Later that evening, Wright’s wife dropped him  off  at  an  apartment
house so that he could purchase more  drugs.   (R.  at  565.)   When  Wright
returned home, he was locked out of his house,  so  he  went  next  door  to
Marshall’s home to use her phone.   (Id.)   According  to  Wright,  Marshall
allowed him into her home and he used a phone that he  accurately  described
as a “white push button phone.”  (Id.; R. at 646.)


      Wright told the police that when he finished using the phone, Marshall
was standing behind him holding a knife.  A fight ensued, and  Wright  began
stabbing Marshall, eventually  using  more  than  one  knife  to  kill  her.
Police reports and photos confirm that more than one knife was used to  stab
Marshall.  Realizing what he had done, Wright  ran  to  the  back  door  and
tried to exit.  Wright said he was unable to open  the  chain  lock  on  the
back door, so he went to the front door and left through it.   The  fact  of
there being a chain lock on the  back  door  is  also  confirmed  by  police
reports and photos.


      Wright was also able to recall the events occurring after  the  crime.
In his statement, Wright told the  police  that,  after  leaving  Marshall’s
house, he went  to  a  crackhouse  to  purchase  drugs.   Several  witnesses
confirmed Wright’s presence at the crackhouse.  While  there,  someone  told
Wright that he had blood on his face, so Wright  requested  some  water  and
washed his face.   Finally,  Wright  walked  home.   Still  locked  out,  he
entered his home by climbing through a window.  He then changed his  clothes
and washed his face and hands.


      Wright pursued three defenses.  First, he contended  he  was  not  the
perpetrator at all.  Second, he argued that if he was  the  perpetrator,  he
acted in self-defense.  Third, he claimed he  was  too  drugged  to  possess
intent.


      Although Wright claims he was unable to form the requisite  intent  to
commit murder due to his drug use during the night before  and  the  morning
of Marshall’s murder, the only evidence tending to establish lack of  intent
is Wright’s own insistence that his memory of the events was like  a  “dream
or vision.”  (Appellant’s Br. at 11.)  Still,  Wright  was  able  to  recall
accurately the events of May 31st, and acted in a lucid and rational  manner
following the crime.  Despite his alleged  intoxication,  Wright  was  alert
enough to walk home, climb through a window, and wash the blood off  of  his
hands and face.


      Based on the foregoing, even if Wright did consume drugs on May  31st,
the evidence “relevant to the defense of voluntary intoxication . .  .  even
if believed, was not such that it could have created a reasonable  doubt  in
the jury’s mind as  to  whether”  Wright  knowingly  killed  Marshall.   See
Horan, 682 N.E.2d at 509.

      As in Horan, the court erroneously  instructed  the  jury.[3]  Because
Wright was not entitled to an intoxication instruction this error  does  not
provide grounds for reversal.




                   III.  Photographs of the Victim’s Body


      Numerous  photographs  were  admitted  at  trial   depicting   Barbara
Marshall’s body at the scene  of  the  crime  and  during  autopsy.   Wright
objected  to  their  admission  on  grounds  that  their   gruesome   nature
outweighed  their  probative  value   and   that   they   were   cumulative.
(Appellant’s Br. at 19.)  The  trial  court  overruled  the  objections  and
admitted the photographs.

      To exclude photographs from  evidence  on  relevancy  grounds,  Wright
must show that  their  improper  influence  on  the  jury  outweighed  their
probative value to the extent that they were unduly  prejudicial.   Harrison
v. State, 699 N.E.2d  645,  647  (Ind.  1998).   Photographs  depicting  the
victim’s injuries or  demonstrating  a  witness’s  testimony  are  generally
admissible and will not be rejected merely  because  they  are  gruesome  or
cumulative.  Id.   To  exclude  photographs  because  they  are  cumulative,
Wright must show that the probative value  is  substantially  outweighed  by
the needless presentation of cumulative evidence.  Id. at  648.   We  review
the trial court’s ruling for an abuse of discretion.  Id.

      Of the photographs at issue, two depict Marshall’s body on the  floor,
where it was found.  One shows only  her  head;  another  shows  her  entire
body.  These photos show her body in  relation  to  the  door  and  hallway.
They also  demonstrate  that  several  knives  were  found  near  her  body.
Exhibits 32-45 are a catalogue of the numerous stab  wounds  inflicted  upon
the victim.  One photo shows a complete  overview  of  the  victim’s  torso,
while two others are close-ups of her face and neck, and  the  corresponding
incisions.   The  remaining  ten  photographs  are  close-up  shots  of  the
victim’s stab wounds, including photographs of her hands, arms, and scalp.

      The photographs at issue establish the cause of death and  the  manner
in which the crime was committed.  This evidence was particularly  probative
inasmuch as Wright attempted to establish that he was  not  the  perpetrator
and, in the alternative, that the  killing  was  “without  deliberation,  in
response to being confronted by a woman with a knife” while Wright was in  a
deeply intoxicated state.  (Appellant’s Br. at  12.)   The  photographs  are
also probative in light of Wright’s testimony  at  trial  that  he  did  not
remember stabbing Barbara Marshall.

      The photographs are not particularly gruesome and show the  wounds  as
the coroner found them, without alteration.  Each photo  shows  a  different
view of the crime scene or the victim’s injuries.   These  photographs  were
not needlessly cumulative and were not introduced solely for the purpose  of
inflaming the jurors’ emotions.  We do not see an  abuse  of  discretion  by
the trial court.






                 IV.  This Hearsay Confirmed Other Evidence



      Finally, Wright asserts that  the  trial  court  erred  in  permitting
Officer Windbigler  to  testify  about  statements  made  by  Tony  Holiday,
Nickolis Wilson, and an  unidentified  person.   Wright  argues  that  these
statements are inadmissible hearsay under Indiana Evidence Rule 802.
      Windbigler testified during his direct examination that  he  conducted
an investigation of the places where Wright had been on May 30th  and  31st.
One of the places was a known crackhouse.  Windbigler took  statements  from
several  people  who  observed  Wright  at  the   crackhouse.    On   cross-
examination, Wright’s attorney asked  Windbigler  about  the  investigation,
and the following colloquy occurred:
       Q. Did you --- to your  knowledge,  did  anybody  go  to  the  crack
          houses?

        A. Yes, sir.

        Q. Were there any statements taken from those people?

        A. Sure.

        Q. You’ve seen them?

        A. Yes, sir.  I believe they are in the case.

        Q. Did those persons who were interrogated say  that  Jim  [Wright]
           had been there?

        A. Somebody had remembered seeing him with blood on him.  Something
           to that effect.  I remember that statement.

        Q. But you weren’t involved in that part?

        A. I believe somebody else took the statement.  What we did  is  we
           knocked on doors of allegedly these places where he was  at.   I
           know we found one or two people or maybe three who  said,  yeah,
           he stopped and they had gotten money with blood on it.   He  had
           blood on his shirt; those type things.

(R. at 587.)

      On redirect, the State attempted to introduce  three  written  witness
statements, the  statements  of  Tony  Holiday,  Nickolis  Wilson,  and  one
unidentified person.  The defendant objected to the  introduction  of  these
statements as inadmissible  hearsay,  and  the  trial  court  sustained  the
objection.  The State then resumed Windbigler’s redirect,  asking  him  what
the witnesses said.  Windbigler testified that  one  witness  said  she  had
observed Wright arriving at the  crackhouse  with  blood  on  his  face  and
clothing.  She also said that Wright asked for some  water  and  washed  his
face.   Windbigler said that another witness told  him  that  Wright  bought
some crack cocaine and paid for it with money partially  covered  in  blood.
The defense objected to these statements as inadmissible  hearsay,  and  the
trial court overruled the objection.

      Although the defense objected to and now complains  of  the  admission
of the hearsay  statements  on  redirect,  no  objection  was  made  to  the
testimony about the statements on cross examination.   Indeed,  the  defense
first  injected  the  issue  of  the  witness  statements  into  the  trial.
Reversal may not be predicated upon  the  erroneous  admission  of  evidence
when  evidence  having  the  same  probative  effect  is  admitted   without
objection or without contradiction.  Bobbitt v. State,  266  Ind.  164,  361
N.E.2d 1193 (1977).  The statements made on redirect are about the  same  as
those  elicited  by  the  defense  during  cross-examination.   We  find  no
reversible error.





                                 Conclusion


      Accordingly, we affirm the judgment of the trial court.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] The voluntary intoxication defense has “endured an unsteady evolution
in Indiana law.”  State v. Van Cleave, 674 N.E.2d 1293, 1302 (Ind. 1996),
modified on reh’g on other grounds, 681 N.E.2d 181 (Ind. 1997), cert.
denied, 118 S. Ct. 1060 (1998).

      Before September 1, 1980, intoxication was a defense to any crime only
to the extent it negated “specific intent.”  Ind. Code Ann. § 35-41-3-5(b)
(West Supp. 1979).  In 1980, the legislature revised the statute to limit
the voluntary intoxication defense only to those offenses specifically
defined by use of the phrases “with intent to” or “with the intention to.”
Ind. Code Ann. § 35-41-3-5(b) (West 1986); Van Cleave, 674 N.E.2d at 1302.
This Court strictly construed that amendment and applied the statute only
to those crimes defined by those phrases until Terry, 465 N.E.2d 1085,
wherein we declared the 1980 amendment “void and without effect,” reasoning
that the U.S. and Indiana Constitutions required voluntary intoxication as
a defense to any crime.  Van Cleave, 674 N.E.2d at 1302 (citing Terry, 465
N.E.2d at 1088).  We subsequently held in Pavey v. State, 498 N.E.2d 1195,
1196 (Ind. 1986), that Terry applied retroactively.


      In 1996, the U.S. Supreme Court held in Montana v. Egelhoff, 518 U.S.
37 (1996), that the Due Process Clause of the Fourteenth Amendment to the
U.S. Constitution does not require states to make the voluntary
intoxication defense available.  Thus, Terry is no longer good law as it
applies to the federal Constitution.  This Court has not considered whether
Terry still has precedential value under the Indiana Constitution, as the
question has not yet been squarely before us.  See Van Cleave, 674 N.E.2d
at 1302-03 n.15; Horan, 682 N.E.2d at 508 n.5.




[2] An instruction informing the jury that a defendant who can perform
these acts should not be relieved of responsibility is error.  Dunlop v.
State, 724 N.E.2d 592, 594-95 (Ind. 2000).
[3] The instruction in Wright’s trial, to which he did not object, reads  as
follows:


      You are instructed that at the time of the commission of  the  offense
      herein, there was in full force and effect a Statute in the  State  of
      Indiana reading as follows, to-wit:


        a) “35-41-2-5.  Intoxication not a defense.
           Intoxication is not a defense in a prosecution  for  an  offense
           and may not be  taken  into  consideration  in  determining  the
           existence of a mental state that is an element  of  the  offense
           unless the defendant meets the requirements of IC 35-41-3-5.”


        b) “35-41-3-5.  Intoxication.
           It is a defense that a person  who  engaged  in  the  prohibited
           conduct  did  so  while  he  was  intoxicated,   only   if   the
           intoxication resulted from the introduction of a substance  into
           his body:


              1) Without his consent; or
              2) When he  did  not  know  that  the  substance  might  cause
                 intoxication.”

(R. at 150.)

      Relying on this Court’s opinion in  Terry,  465  N.E.2d  1085,  Wright
argues that the trial court  erred  in  giving  the  jury  this  instruction
because the statutes on which it is based violate the Indiana  Constitution.
 Wright concedes that  the  statutes  are  not  unconstitutional  under  the
United States Constitution.  See Montana v. Egelhoff, 518 U.S. 37.

      Although both sides agree that these statutes  apply  in  the  instant
case, we note that Ind. Code § 35-41-2-5 became effective on July  1,  1997,
while Wright was charged with a murder that occurred on  or  about  May  31,
1997.  Therefore, Ind. Code  §  35-41-2-5  does  not  apply  to  this  case.
Accordingly, we need not  address  the  precedential  value  of  Terry,  465
N.E.2d 1085, as it applies to the state constitutional implications  of  our
legislature’s decision to abolish the voluntary intoxication defense.