Wallace v. State





ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLEE:

JEFF SCHLESINGER                  JEFFREY A. MODISETT
Appellate Public Defender                    Attorney General of Indiana
Crown Point, Indiana
                                        JAMES A. GARRARD
                                        Deputy Attorney General
                                        Indianapolis, Indiana




                                   IN THE

                          SUPREME COURT OF INDIANA


CARLOS WALLACE,                   )
                                        )
      Appellant-Defendant,              )
                                        )    Supreme Court Cause Number
            v.                          )    45S00-9808-CR-426
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee-Plaintiff.                    )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                     The Honorable Richard Maroc, Judge
                        Cause No.  45G01-9708-CF-171

                              ON DIRECT APPEAL

                               March 23, 2000


RUCKER, Justice


      A jury convicted Carlos Wallace of murder and attempted murder.   The
trial court sentenced him to concurrent  presumptive  terms  of  fifty-five
years and thirty years respectively.  In this direct appeal, Wallace raises
three issues for our review which we rephrase as:  (1) did the trial  court
err by admitting post-mortem photographs of the murder victim, (2) was  the
evidence sufficient to negate Wallace’s claim of self-defense, and (3)  did
the trial court properly sentence Wallace.
      We affirm.
      The facts most favorable to the verdict  show  that  on  December  19,
1996, Wallace paged his long-time acquaintance Joe Jones and  asked  for  a
ride to the bus  station.   Wallace  asserted  that  he  was  traveling  to
Minnesota to visit  his  mother.   Jones  agreed  and  drove  to  Wallace’s
residence accompanied by another person, Larry Magee.  Wallace entered  the
car and sat in the back seat.  Jones drove and  Magee  rode  in  the  front
passenger seat.  Wallace informed  Jones  that  before  going  to  the  bus
station he wanted to make a stop in order to obtain needed cash.   He  then
directed Jones to park the car  near  a  house  a  few  streets  away  from
Wallace’s residence. Rather than park where instructed, Jones parked  under
a streetlight.  After demanding that Jones  move  the  car  away  from  the
light, Wallace produced a .22 caliber handgun and began firing.  Magee  was
struck in the eye and shoulder and died as a result of  the  wound  to  his
head.  Jones survived shots to his shoulder, hand, and face.   Wallace  was
ultimately arrested and charged with the murder of Magee and the  attempted
murder of Jones.
      At trial, Wallace testified on his own  behalf  and  admitted  to  the
shooting, but claimed he acted in self-defense.  According  to  Wallace,  he
sold drugs for Jones and owed him money.  Wallace testified  that  after  he
entered the car, Jones threatened to harm him if he did not pay  the  money.
Wallace claimed that Magee then reached for  him,  at  which  point  Wallace
produced a handgun and began firing wildly.  The jury convicted  Wallace  as
charged.  This appeal followed.
                                     I.
      Wallace first contends the trial court erred  when  it  admitted  into
evidence two post-mortem photographs taken of the  victim.   One  photograph
shows the victim’s face with surgical  tubes  extending  from  the  victim’s
nose and mouth.  The other photograph is  similar  to  the  first,  but  the
tubes are removed.  Both photographs reveal a gunshot wound to the  victim’s
eye and what appear to be powder burns to  the  victim’s  face.   Describing
the photographs as gruesome, Wallace argues their relevancy  was  outweighed
by their prejudicial impact upon the jury.
      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’s 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.
      The two  photographs  here  were  admitted  into  evidence  after  the
pathologist had explained the  nature  of  the  victim’s  injury,  namely  a
gunshot wound to the left eyelid.  The State  then  drew  the  pathologist’s
attention  to  “puck  marking”  around  the  wound,  which  the  pathologist
characterized as “stippling.”  R. at 136.  According to the  pathologist,  a
gun fired at close range caused  the  stippling.   Because  the  photographs
illustrated the witness’s testimony, the  relevancy  requirement  for  their
admission was properly met.
      As for alleged prejudicial impact, we do not agree the photographs are
particularly gruesome.  Indeed, because the photographs  were  taken  before
the pathologist actually  began  his  internal  examination,  they  show  no
incisions  and  do  not  portray  the  gruesome  spectacle  this  court  has
previously condemned.  See, e.g., Kiefer v. State, 239 Ind.  103,  111,  153
N.E.2d 899, 902 (1958) (deeming photographs so “gruesome  and  shocking”  as
to be inadmissible).  It is true  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).   However,  this
Court  has  found  photographs  showing  the  deceased  victim  before   the
pathologist has made incisions to be admissible even when they are  gruesome
or gory.  Id.  That is so because such photographs allow  the  jury  to  see
the wounds  or  trauma  inflicted  upon  the  victim,  and  they  are  often
accompanied by the testimony of the pathologist about the  cause  of  death.
Id.  Here, the pathologist testified  about  the  cause  of  death  and  the
stippling surrounding the fatal wound.  The photographs allowed the jury  to
see the wound and to place the  pathologist’s  testimony  in  context.   The
probative value of these photographs outweighs any prejudicial impact.   The
trial court did not err by allowing the photographs into evidence.[1]
                                     II.
      Wallace next contends the State failed to negate his  claim  of  self-
defense.  Pointing to his own  testimony  in  support,  Wallace  alleges  he
fired his weapon out of fear of death or great bodily harm.  A  valid  claim
of self-defense is  legal  justification  for  an  otherwise  criminal  act.
Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997).  When a  defendant  raises
the claim of self-defense, he is required to show three facts: 1) he was  in
a place where he had a right to be; 2) he acted without  fault;  and  3)  he
had a reasonable fear of death or great bodily harm.  McEwen v.  State,  695
N.E.2d 79, 90 (Ind. 1998).  The  issue  on  appellate  review  is  typically
whether the State presented sufficient evidence to support  a  finding  that
at least one of the elements  of  the  defendant’s  self-defense  claim  was
negated.  The standard of review for  a  challenge  to  the  sufficiency  of
evidence to rebut a claim of self-defense is the same as  the  standard  for
any sufficiency of the evidence claim.  Sanders v. State,  704  N.E.2d  119,
123 (Ind. 1999).  We neither reweigh the evidence nor judge the  credibility
of witnesses.  Id.  If there is sufficient evidence of  probative  value  to
support the conclusion of the trier of fact, then the verdict  will  not  be
disturbed.  Id.

      Jones was the State’s key witness and provided most  of  the  evidence
against Wallace. In turn, the only evidence supporting a self-defense  claim
was Wallace’s own testimony.  The trial court gave the jury  a  self-defense
instruction, and it  convicted  Wallace  nonetheless.  Obviously,  the  jury
rejected Wallace’s testimony,  which  it  had  the  right  to  do.   Wallace
essentially invites this court to reweigh the evidence.   We  decline.   The
State presented sufficient evidence  to  negate  Wallace’s  claim  of  self-
defense.

                                    III.

      For his final contention, Wallace complains the trial  court  did  not
consider a significant mitigating factor, namely, that he acted out of  fear
of great bodily harm.  A claim  that  the  trial  court  failed  to  find  a
mitigating  circumstance  requires  the  defendant  to  establish  that  the
mitigating evidence  is  both  significant  and  clearly  supported  by  the
record.  Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).  Here, the  trial
court listed the following mitigating factors:  Wallace’s youthful  age;  no
prior history  of  criminal  convictions;  Wallace  was  the  product  of  a
dysfunctional family; and Wallace expressed remorse for  his  actions.   The
jury’s rejection of  Wallace’s  self-defense  claim  demonstrates  that  his
assertion that he acted out of fear is not clearly supported by the  record.
 See, e.g., Shields v. State,  699  N.E.2d  636,  640  (Ind.  1998)  (“[T]he
mitigation  claim  that  the  victim  induced  the  crime  was  not  clearly
supported by the record, as the jury  rejected  the  defendant's  claims  of
self-defense and sudden heat, instead finding that he knowingly  killed  the
victim.”).  We conclude the  trial  considered  all  significant  mitigating
factors and did not err in sentencing Wallace.
      Judgment affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
      [1]  We observe that  although  neither  photograph  was  particularly
gruesome, the photograph showing surgical tubes extending from the  victim’s
nose and mouth was cumulative.  However, relevant  evidence   need   not  be
excluded simply because it is cumulative.  McCord v. State, 622 N.E.2d  504,
512 (Ind. 1993).  Further, Wallace does raise this  point  as  an  issue  on
appeal.