ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER JEFFREY A. MODISETT
Public Defender of Indiana Attorney General of Indiana
GREGORY L. LEWIS ROSEMARY L. BOREK
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ROBERT TURBEN, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 13S00-9810-CR-603
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CRAWFORD CIRCUIT COURT
The Honorable Kenneth Lynn Lopp, Judge
Cause No. 13C01-9711-CF-026
ON DIRECT APPEAL
April 19, 2000
RUCKER, Justice
A jury convicted Robert Turben of murder in the death of his wife. The
trial court sentenced him to sixty-five years imprisonment. In this direct
appeal Turben contends his conviction should be reversed because the trial
court erred by admitting an autopsy photograph into evidence. We agree the
trial court erred. However the error was harmless and we therefore affirm.
The record shows that Turben and his wife Jenny had a turbulent
marriage, separating and reuniting several times. In October 1997, Jenny
and the parties’ three minor children moved out of the marital home and
began living with a relative. Deciding that she would tell Turben of her
plans to file for divorce, Jenny took the children to the marital residence
for dinner on November 3, 1997. Later that evening, Turben returned the
children to the home of Jenny’s relative. Asked about Jenny, Turben
explained that the couple had engaged in an argument and that Jenny had
left the house walking. Friends and relatives began searching for Jenny
and alerted the police that she was missing. The following day police
questioned Turben about Jenny’s disappearance. Although first claiming
Jenny left the house alone after an argument the previous night, Turben
ultimately admitted that he had strangled Jenny with a cord. He then
accompanied officers to a cave in the Harrison Crawford Forestry where
Jenny’s body was discovered in a black canvas bag beneath a pile of rocks.
The cord was still around her neck.
Turben was charged with murder and in due course the case was tried
to a jury. In its case in chief the State called pathologist George
Nichols who testified that he had performed an autopsy on Jenny and
concluded that she died from strangulation. Specifically, the pathologist
testified that the cord cut off the supply of oxygenated blood to Jenny’s
brain and caused unconsciousness and irreversible brain damage, resulting
in death. To accompany the pathologist’s testimony, the State sought to
introduce several photographs taken during the autopsy. One of the
photographs showed 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. Over
Turben’s objection the photograph was introduced into evidence. The jury
convicted Turben as charged and the court sentenced him to sixty-five years
imprisonment. This direct appeal followed.
Turben contends the trial court erred by admitting the autopsy
photograph into evidence because its prejudicial impact on the jury
outweighed its probative value. We review the trial court’s admission of
photographic evidence for an abuse of discretion. Byers v. State, 709
N.E.2d 1024, 1028 (Ind. 1998). Photographs that depict a victim’s injuries
are generally relevant and thus admissible. Harrison v. State, 699 N.E.2d
645, 648 (Ind. 1998). The relevancy requirement also can be met if the
photographs demonstrate or illustrate a witness’ testimony. Id. However,
relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice[.]” Ind.Evidence Rule 403.
In this case the State seems to acknowledge the photograph is graphic.
However, the State contends the photograph is relevant because it
illustrates the pathologist’s testimony concerning the cause of death,
namely, strangulation. Assuming the photograph here is relevant, it is
only marginally so. Our review of the record shows a bloody mass that
barely resembles a human form. We doubt the jury was further enlightened
concerning the cause of death by viewing this gruesome spectacle. This
court has long held that photographs of a deceased victim during and after
an autopsy is performed may be held inadmissible on grounds that they serve
no purpose other than to arouse the emotions of the jury. Loy v. State,
436 N.E.2d 1125, 1128 (Ind. 1982). Indeed autopsy photographs are
generally inadmissible if they show the body in an altered condition.
Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997), cert. denied, 525 U.S.
1073, 119 S.Ct. 807, 142 L.Ed.2d 667. This is so because “such a display
may impute the handiwork of the physician to the accused assailant and
thereby render the defendant responsible in the minds of the juror for the
cuts, incisions, and indignity of an autopsy." Loy, 436 N.E.2d at 1128;
see also, Warrenburg v. State, 260 Ind. 572, 574, 298 N.E.2d 434, 435
(1973) (error to admit autopsy photograph which showed a partially resewn
corpse, nude from the waist up, with the right arm of the corpse severed
completely and the left arm re-attached with gaping sutures); Kiefer v.
State, 239 Ind. 103, 112, 153 N.E.2d 899, 903 (1958) (reversible error to
admit autopsy photographs showing hands and instruments of surgeon inside
chest of victim). Given the gruesomeness of the photograph in this case,
along with its marginal relevance, we conclude the photograph’s prejudicial
impact outweighed its probative value. Accordingly, the trial court erred
by admitting the photograph into evidence.
However, not every trial error requires 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. Fleener v. State,
656 N.E.2d 1140, 1141 (Ind. 1995); Ind.Trial Rule 61. 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).
Turben contends his defense at trial was that he killed his wife in a
sudden heat of passion. He argues the inflammatory photograph unfairly
influenced the jury to reject his defense and thus the jury returned a
verdict of murder rather than voluntary manslaughter. “Sudden heat” is an
evidentiary predicate that allows mitigation of a murder charge to
voluntary manslaughter. Bane v. State, 587 N.E.2d 97, 100 (Ind. 1992). It
is characterized as anger, rage, resentment, or terror sufficient to
obscure the reason of an ordinary person, preventing deliberation and
premeditation, excluding malice, and rendering a person incapable of cool
reflection. Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998).
In support of his sudden heat contention Turben introduced evidence of
his stormy marriage and facts supporting the claim that he and his wife
frequently fought and argued. He also called as a witness a clinical
psychologist who testified that Turben suffered an “explosive mood
disorder.” According to the psychologist, Turben told him that on the
night of the murder he and his wife argued, she threw a baby bottle at him
and he responded by hitting her in the face. Turben told the psychologist
he could not remember what happened next, but shortly thereafter
“discovered” that his wife was dead. R. at 1320. The psychologist
acknowledged that even in past highly charged situations Turben “has tended
to walk away.” R. at 1328. He also acknowledged that Turben could have
“controlled” his behavior, . . . “he had learned to do that before.” R. at
1324.
We first observe that words alone are not sufficient provocation to
precipitate sudden heat for purposes of determining whether a killing
constitutes voluntary manslaughter as opposed to murder. Gregory v. State,
540 N.E.2d 585, 593 (Ind. 1989). Thus, to the extent Turben claims that he
was provoked because his wife told him she was obtaining a divorce and that
she engaged in other verbal harangues does not support his sudden heat
contention. Nor was the jury bound to be persuaded that Turben being hit
with a baby bottle combined with his emotional disorder provided sufficient
provocation for a voluntary manslaughter conviction. A stressful encounter
does not inflame sudden heat sufficient to mitigate murder to voluntary
manslaughter simply because a defendant suffers from a psychological
disorder which gives him a “hair trigger.” Wilson v. State, 697 N.E.2d at
474.
The record before us shows not only that Turben and his wife had
frequently fought and argued, which did not result in death, but also that
Turben could control his behavior and in the past had simply walked away
from highly stressful situations. Further, there was evidence before the
jury that Turben threatened to kill his wife a week before the fatal night
when she had once again moved out of the marital home. There was also
testimony that Turben had told a friend that the shotgun shells in his
truck were intended for his wife if she ever decided to leave him. In sum,
the absence of substantial evidence of sudden heat convinces us that there
was no serious issue of whether the defendant committed murder or voluntary
manslaughter. We are convinced that the prejudice resulting from the
erroneously admitted photograph did not cause or significantly contribute
to the jury’s rejection of voluntary manslaughter. We find that the error
in admission of the photograph did not affect the substantial rights of the
defendant. Accordingly, although the trial court erred by admitting the
photograph, the error was harmless.
Judgment affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.