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Turben v. State

Court: Indiana Supreme Court
Date filed: 2000-04-19
Citations: 726 N.E.2d 1245
Copy Citations
23 Citing Cases
Combined Opinion




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.