Haggenjos v. State

HUNTER, Justice,

concurring in result.

I am unable to join the majority’s conclusion that the victim properly was permitted to relate the nature of her surgery and the length of her confinement in hospital. Based on the evidence presented, however, which included both direct and circumstantial evidence of defendant’s guilt, I would affirm the judgment entered against defendant on the basis that any error which arose by virtue of the prosecutor’s evocation of the testimony was harmless. Consequently, I concur in the result reached by the majority.

The validity of the evidentiary rule that the extent of a victim’s injuries is admissible to prove an intent to kill is not at issue. Gayer v. State, (1965) 247 Ind. 113, 210 N.E.2d 852; Washington v. State, (1978) Ind.App., 379 N.E.2d 1032; Smith v. State, (1975) 165 Ind.App. 37, 330 N.E.2d 384. Often it has been recognized that the victim, eyewitnesses, and physicians may testify to the extent and nature of the injuries. Id. Concomitantly, photographs of wounds may *435be admitted to establish the extent of injuries. Bond v. State, (1980) Ind., 403 N.E.2d 812; Bates v. State, (1977) 267 Ind. 8, 366 N.E.2d 659.

Given the availability and adequacy of these evidentiary methods to establish the extent of a victim’s injuries, it does not follow that the curative measures and hospital confinement necessitated by the injuries should also be admitted. Assuming that minimal probative value could be attached to either matter in any particular case, that supposition does not justify the conclusion that the testimony is admissible. It is a fundamental precept of our rules of evidence that notwithstanding the relevance of particular evidence, its admissibility is also dependent upon countervailing considerations — among which is the question whether the probative value of the evidence is outweighed by its potential for unduly arousing the jurors’ prejudice and sympathy. Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482; Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899; Hawkins v. State, (1941) 219 Ind. 116, 37 N.E.2d 79; 6 WlGMORE on Evidence § 1904 (Chad-bourn Rev.1976); M. Seidman, The Law op Evidence in Indiana p. 65 (1977).

The probative value in permitting a victim to relate the nature of surgery necessitated by injuries is attenuated at best. Its materiality follows from the existence of the injuries, of course; once the injuries are described or revealed by photographs, or both, a description of the nature of the surgery is proof which is cumulative in nature. Against this minimal probative value must be measured the significant potential for prejudice and sympathy to be interposed into the fact-finding process if the victim is permitted to take the stand and relate the nature of her surgery. Given the attenuated nature of its materiality and the fact that its potential for prejudice far outweighs its relevance, the testimony regarding the nature of surgery should not be admitted. Compare, People v. Nickolopoulos, (1962) 25 Ill.2d 451, 185 N.E.2d 209.

The majority recognizes the great potential for prejudice in such testimony, for it characterizes the testimony in this case as “elicited in a straightforward manner with no attempt by the State to embellish upon gory details.” Majority Opinion, supra. The language cannot be overlooked, for notwithstanding the inherent ambiguity of the words employed, the import of the terms defines the limits of admissibility. Any evidence concerning the nature of surgery necessitated by injuries, if it be admitted at all, should be confined to a description couched in objective medical terms.

Just as it would be immaterial and prejudicial for a victim to relate the “gory” details of surgery and convalescence, so also should the length of a victim’s confinement in a hospital be inadmissible. It is true that in Arnett v. State, (1969) 251 Ind. 685, 244 N.E.2d 912 (Jackson and Hunter, JJ., dissenting), the majority of this Court did hold that evidence of the length of the victim’s hospital confinement was admissible to establish defendant’s intent. A minority of this Court took the position that the amount of time the victim spent in various hospitals was not relevant to establish defendant’s intent at the time he inflicted the wounds. It was recognized in those dissenting opinions that the length of hospitalization in any particular instance may be the product of variables unrelated to the intent of the defendant; likewise, it was acknowledged that revelations of a lengthy period of hospitalization endured by a victim was rife with potential for arousing the twin passions of jurors — sympathy for the victim and prejudice toward the defendant. Id., 251 Ind. at 696, 244 N.E.2d at 918 (Jackson and Hunter, JJ., dissenting). I reiterate my position in Arnett that whatever minimal relevance the length of a victim’s hospitalization may have to a defendant’s intent, that evidence should not be admissible to prove that fact due to its prejudicial impact on the minds of jurors.

It must be conceded that, as in the instant case, it is not necessary for the state to introduce evidence of the victim’s surgery and length of hospitalization as a vehicle to prove the extent of injuries suffered and, in turn, the defendant’s intent. That *436evidence can be proved by a verbal description or photographic display of the wounds. The only additional ingredient to be gained by a victim’s recitation of the nature of surgery and the length of hospital confinement is an emotional gloss. Our rules of evidence are designed to preclude that approach to the fact-finding process.

For all the foregoing reasons, I am unable to join the majority’s resolution of Issue II. Based on the direct and circumstantial evidence of defendant’s guilt, however, I conclude the error was harmless. Consequently, I concur in the result ultimately reached by the majority.

I concur in result.