ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy E. Stucky Karen M. Freeman-Wilson
Blume, Connelly, Jordan & Stucky Attorney General of Indiana
Fort Wayne, Indiana
Arthur Thaddeus Perry
Deputy Attorney General
INDIANA SUPREME COURT
DAVID E. CORBETT, )
v. ) 02S00-0004-CR-260
STATE OF INDIANA, )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D04-9904-CF-215
On Direct Appeal
March 19, 2002
The defendant, David E. Corbett, was convicted of murder
See footnote and robberySee footnote for the
incidents surrounding the slaying of Edwin Massengill on April 20, 1999 in Fort
Wayne, Indiana.See footnote The trial court sentenced the defendant to eighty-five years imprisonment.
In his appeal, the defendant asserts five grounds: (1) insufficient evidence;
(2) erroneous admission of autopsy photographs; (3) improper transferred intent jury instruction; (4)
errors in findings of aggravating and mitigating circumstances; and (5) manifestly unreasonable sentence.
We affirm the defendant's convictions and sentence.
Sufficiency of the Evidence
The defendant claims the evidence introduced at trial was insufficient to support his
convictions. Specifically, although he admits that he fatally struck Massengill with a
sledgehammer and took the victim's wallet and handgun, the defendant claims that the
State failed to prove the element of intent as to each of the
charged offenses. The defendant contends that the only evidence on this issue
came from a witness, Joseph Davis, whose testimony was incredibly dubious.
In addressing a claim of insufficient evidence, an appellate court must consider only
the probative evidence and reasonable inferences supporting the judgment, without weighing evidence or
assessing witness credibility, and determine therefrom whether a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Marcum v. State,
725 N.E.2d 852, 863 (Ind. 2000). Under the "incredible dubiosity" rule, however,
a reviewing court may impinge on the fact-finder's responsibility to judge witness credibility
when "a sole witness presents inherently contradictory testimony which is equivocal or the
result of coercion and there is a complete lack of circumstantial evidence" of
the defendant's guilt. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994);
accord Lee v. State, 735 N.E.2d 1169, 1173 (Ind. 2000); White v. State,
706 N.E.2d 1078, 1079-80 (Ind. 1999).
Davis's testimony does not fit into the incredible dubiosity rule. While inconsistencies
exist between witness Davis's statement to police and his trial testimony, they do
not render his testimony inherently contradictory as a result of coercion. Further,
the convictions were not based solely on Davis's testimony. The defendant admitted
to police that he and Davis had gone to the victim's home and
that, when the victim and Davis ignored the defendant's demand that they stop
arguing, he threw a hammer, intending to hit Davis but striking Massengill instead.
In addition, the pathologist testified that the victim was probably struck three
times in the head. The jury could have easily inferred that striking
a man in the head three times with a sledgehammer was intentional and
not accidental. Sufficient evidence was presented to establish the element of intent
for the defendant's convictions of murder and robbery.
The defendant challenges the admission of 26 photographs taken immediately before, during and
after the autopsy performed on the decedent, Edwin Massengill. We recently stated
the standard of review for admission of photographic evidence:
Because the admission and exclusion of evidence falls within the sound discretion of
the trial court, this Court reviews the admission of photographic evidence only for
abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1028 (Ind. 1999);
Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998). Relevant evidence, including
photographs, may be excluded only if its probative value is substantially outweighed by
the danger of unfair prejudice. Ind.Evidence Rule 403; Byers, 709 N.E.2d at
1028. "Even gory and revolting photographs may be admissible as long as
they are relevant to some material issue or show scenes that a witness
could describe orally." Amburgey, 696 N.E.2d at 45; see also Byers, 709
N.E.2d at 1028. Photographs, even those gruesome in nature, are admissible if
they act as interpretative aids for the jury and have strong probative value.
Spencer v. State, 703 N.E.2d 1053, 1057 (Ind. 1999); Robinson v. State,
693 N.E.2d 548, 553 (Ind. 1998).
Swingley v. State, 739 N.E.2d 132, 133 (Ind. 2000). Autopsy photos often
present a unique problem because the pathologist has manipulated the corpse in some
way during the autopsy. 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 (1999). But Swingley recognizes that "there are situations where some alteration
of the body is necessary to demonstrate the testimony being given." 739
N.E.2d at 133-34. In Fentress v. State, 702 N.E.2d 721 (Ind. 1998),
a case similar to the one before us today, we held admissible two
photographs that depicted the victim's skull with the hair and skin pulled away
from it. Because the pathologist had explained what he had done and
the alteration was necessary to determine the extent of the victim's injuries, we
found that the "potential for confusion [was] minimal" and that the probative value
outweighed the prejudicial effect. Fentress, 702 N.E.2d at 722. Transferred Intent Instruction
In this case, eleven of the photographs depict the body before the autopsy
(Exhibits 42-48, 49-50, 66-67). Two additional photographs show one of the head
wounds cleaned and with some hair shaved away. The admission of these
photographs was not error. See Loy v. State, 436 N.E.2d 1125, 1128
(Ind. 1982)(holding photographs that depict victim in natural state after death admissible).
In fact, these photographs are fairly tame for a murder case. The
rest of the challenged photographs depict various stages of the autopsy.
Exhibits 51, 52, and 53 depict the victim's head with the skin and
hair pulled back from the skull. The pathologist stated this was necessary
to determine the extent of the injuries, and he explained the procedure he
undertook. These photographs are akin to the ones in Fentress. Two
of the photographs, however, Exhibits 51 and 52, are problematic. In addition
to depicting the victim's head and wounds, these pictures show the hollow shell
of the victim's body, which greatly and unnecessarily enhances the gruesomeness of the
pictures. These two photographs, although relevant to the cause of death and
the disputed issue of the number of blows, were so prejudicial that the
trial court abused its discretion in allowing them to be admitted.
Exhibit 54, a close-up of the victim's head, shows part of the brain
exposed. The pathologist explained the photo shows the effects of external blunt
force trauma. Record at 620-21. Exhibit 55 depicts a fracture in
a portion of the skull, which has been removed from the victim's head.
The pathologist explained how he removed this portion and highlighted the fracture
to the jury. Record at 621-23. It was not error to
admit these two exhibits. It was error, however, to admit Exhibit 56
because, although the portion of the skull depicted in Exhibit 55 is in
the foreground, the photograph focuses on the hollow shell of the victim's body.
The probative value of Exhibit 56 is outweighed by its unfair prejudicial
Exhibits 57 and 58 depict the base of the skull with the brain
removed. As the pathologist explained the alteration he had made and the
need to show the extent of the victim's injuries, the trial court did
not err in allowing the admission of these photographs. The same is
true of Exhibit 59, which depicts a portion of the skull against the
edge of a table to show how a hard surface could produce the
fracture. The pathologist also testified that Exhibit 11, a sledgehammer (the alleged
murder weapon), could have caused the fractures pictured in Exhibit 59. Record
Exhibits 60, 61 and 63 depict the victim's brain removed from his skull.
While these pictures do indicate trauma to the brain consistent with an
external blunt force trauma, the photographs are cumulative and their prejudicial effect outweighs
their probative value. It was error to allow them to be admitted.
In the same way, Exhibits 64 and 65 should have been excluded.
These photographs depict the hollow shell of the victim and focus on
his ribs. The probative value of these pictures was slight as the
existence of broken ribs was not a material issue and their unfair prejudicial
effect is high given their gruesomeness. It was error not to exclude
Finding that the trial court erred in admitting some photographs is not enough
to warrant reversal, however. Errors in the admission or exclusion of evidence
are to be disregarded as harmless error unless they affect the substantial rights
of the party. Ind.Trial Rule 61; Fleener v. State, 656 N.E.2d 1140,
1141 (Ind. 1995). 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).
The defendant does not demonstrate how the erroneous admission of some of the
photographs affected his substantial rights. Under the defendant's version of events, he
threw the hammer at another man, Davis, and accidentally struck Massengill in the
head. After attempting to render first aid, the defendant states he panicked
and took the victim's wallet and a handgun. The only evidence that
corroborates the defendant's story is that a pillow was found under the victim,
a bottle of hydrogen peroxide was found near his head, and blood had
been wiped from under the victim's nose. It is undisputed that the
defendant took the hammer with him and was in possession of two rifles,
which he claimed Davis took. The pathologist wrote in his report and
testified at trial that the victim suffered more than one and probably three
blows to the head. We find it highly improbable that the six
erroneously admitted photographs influenced the jury from believing the defendant's highly improbable version
of events. The probable impact of the erroneous admission of the photographs
did not affect the defendant's substantial rights, and the error in admitting the
exhibit must be disregarded as harmless.
The defendant next contends that the trial court erred in giving the jury
an instruction on transferred intent. Over objection, the trial court gave the
State's tendered instruction on the doctrine of transferred intent:
If one intends to injure or kill a person with a deadly weapon,
and by mistake or inadvertence injures or kills another person with such weapon,
his intent is transferred from the person to whom it was directed to
the person actually injured, and he may be found guilty of murder of
the person who was killed.
You may find a person guilty of murder of a person who was
killed, even if you find that person intended to kill another.
Record at 159. The defendant contends the trial court erred in giving
this instruction because it was contrary to the State's theory, which asserted that
Davis was not in the house when Massengill was killed, and because it
created an improper mandatory presumption that the defendant acted with the specific intent
to kill Davis.
In reviewing a trial court's decision to give or refuse tendered jury instructions,
the Court considers: (1) whether the instruction correctly states the law; (2)
whether there is evidence in the record to support the giving of the
instruction; and (3) whether the substance of the tendered instruction is covered by
other instructions which are given. Cutter v. State, 725 N.E.2d 401, 408
(Ind. 2000); Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999).
An instruction may deviate from the State's theory of the case as long
as it is supported by the evidence and is a correct statement of
law. See Hoskins v. State, 441 N.E.2d 419, 424-25 (Ind. 1982).
The contested instruction was supported by evidence that the defendant intended to kill
Davis rather than the victim. The defendant stated that he threw a
hand-held sledgehammer at Davis. The jury was instructed, "[t]he intent to kill
can be found from the acts, declarations, and conduct of the Defendant at
or just immediately before the commission of the offense and/or from the nature
of the weapon used." Record at 158. This instruction is a
correct statement of the law in Indiana. See Barany v. State, 658
N.E.2d 60, 65 (Ind. 1995). From the defendant's declaration that he threw
a sledgehammer at Davis, the jury could infer that the defendant intended to
kill Davis. The challenged instruction was supported by the evidence.
The defendant also claims the instruction creates an improper mandatory presumption that the
defendant acted with the specific intent to kill. By the language of
the instruction, the jury was essentially told that if the defendant, acting with
the intent to kill Davis, accidentally killed Massengill; the defendant may be found
guilty of the murder of Massengill. This is not a mandatory instruction.
It permitted, but did not require, the jury to find guilt.
In addition, the defendant contends that the giving of the challenged transferred intent
instruction essentially alleged that the defendant had attempted to murder Davis, and that
the trial court was thus required to instruct the jury on the specific
intent for the
offense of attempted murder. The defendant did not tender any proposed instructions
addressing this issue. Record at 101-111. Nor did he object on
this basis at trial.
See footnote "No party may claim as error the giving
of an instruction unless he objects thereto . . . stating distinctly the
matter to which he objects and the grounds of his objection." Ind.Trial
Rule 51(C). When objecting at trial to the
giving of an instruction,
a party is not required to tender an alternative instruction if the party's
objection is sufficiently clear and specific to inform the trial court of the
claimed error and to prevent inadvertent error. Mitchell v. State, 742 N.E.2d
(Ind. 2001). If a party is objecting to the failure
to give an instruction, however, a tendered instruction is necessary. Id.
Not only is the defendant precluded from claiming on appeal that the trial
court should have given an instruction regarding specific intent for attempted murder, but
this claim does not qualify as fundamental error authorizing review of this claim
despite the defendant's failure to establish that he properly raised the issue at
Aggravating and Mitigating Circumstances
The defendant contends that the trial court erred in failing to find mitigating
circumstances and in finding the defendant's minimal criminal history as a significant aggravating
circumstance. The trial court sentenced the defendant to sixty-five years for his
murder conviction and twenty years for his robbery conviction, and ordered the sentences
to be served consecutively.
Sentencing decisions generally rest within the discretion of the trial court, and are
reviewed on appeal only for an abuse of discretion. Monegan v. State,
756 N.E.2d 499, 501 (Ind. 2001). It is within the trial court's
discretion to determine whether a presumptive sentence will be enhanced due to aggravating
factors. Id. Because reasonable minds may differ due to the subjectivity
of the sentencing process, it is generally inappropriate for us to merely substitute
our opinions for those of the trial judge. Hurt v. State, 657
N.E.2d 112, 114 (Ind. 1995).
The defendant argues that the trial court erroneously found no mitigating factors, notwithstanding
evidence of the defendant's cooperation with law enforcement by providing an incriminating voluntary
statement, his acceptance of responsibility for his admitted criminal conduct, his attempt to
render aid to the victim immediately after the fatal blows, his genuine remorse
for his conduct, and his untreated substance abuse problem. The trial court's
written sentencing order states, "Court finds that there are no mitigating circumstances."
Record at 176.
Determining mitigating circumstances is within the discretion of the trial court. Walter
v. State, 727 N.E.2d 443, 448 (Ind. 2000); Legue v. State, 688 N.E.2d
408, 411 (Ind. 1997). A trial court need not regard or weigh
a possible mitigating circumstance the same as urged by the defendant. Monegan,
756 N.E.2d at 504. When a defendant alleges that the trial court
failed to identify or find a mitigating circumstance, the defendant must 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). The trial court
is not required to make an affirmative finding expressly negating each potentially mitigating
circumstance. Stout v. State, 528 N.E.2d 476 (Ind. 1988); see also Walter,
727 N.E.2d at 448; Legue, 688 N.E.2d at 411. The failure to
find mitigating circumstances that are clearly supported by the record, however, may imply
that they were overlooked and not properly considered. Jones v. State, 467
N.E.2d 681, 683 (Ind. 1984). In reviewing a sentencing decision in a
non-capital case, we are not limited to the written sentencing statement but may
consider the trial court's comments in the transcript of the sentencing proceedings.
Walter, 727 N.E.2d at 449.
In this case the trial court's oral remarks at the conclusion of the
sentencing hearing demonstrate that, although concluding that none of the things presented by
the defense constitute mitigating circumstances, the court discussed each of the proposed mitigating
circumstances. Record at 201-02. The court noted that the defendant's "substance
abuse may in fact be a reason for committing the crime and it's
not an excuse." Record at 201. As to his claim of
cooperation with the law enforcement, after noting that the defendant told the police
an untruthful story, the trial court stated, "I just don't think that there's
any indication that he cooperated with the police in any way." Record
at 202. Likewise, the trial court observed, "There's been no acceptance of
responsibility" but rather a significant effort "to minimize your responsibility." Id. The
trial court did not expressly discuss the defendant's assertion that mitigating consideration should
have been given for his care for the victim immediately after striking the
fatal blow. We find, however, that the defendant's momentary aid, including the
possible placement of a pillow under the victim's head and possible use of
hydrogen peroxide, but then rummaging through the house and removing the victim's wallet
and several weapons, does not clearly constitute a significant mitigating circumstance. We
find no error as to defendant's claim that the trial court failed to
find and consider mitigating circumstances.
The defendant contends that the trial court erred "in placing significant weight on
the Defendant's minimal, remote, and nonviolent criminal history." Br. of Appellant at
27. "Significance varies based on the gravity, nature and number of prior
offenses as they relate to the current offense." Wooley v. State, 716
N.E.2d 919, 929 n.4 (Ind. 1999). In Wooley, we held that "a
criminal history comprised of a single, nonviolent misdemeanor is not a significant aggravator
in the context of a sentence for murder." Id. at 929.
The chronological remoteness of a defendant's prior criminal history should be taken into
account. Harris v. State, 396 N.E.2d 674, 677 (Ind. 1979). However,
"we will not say that remoteness in time, to whatever degree, renders a
prior conviction irrelevant." Id. The remoteness of prior criminal history does
not preclude the trial court from considering it as an aggravating circumstance.
Bowling v. State, 493 N.E.2d 783 (Ind. 1986) (citing Perry v. State, 447
N.E.2d 599, 600 (Ind. 1983)).
The defendant was previously convicted of burglary in Arkansas in 1986 and grand
theft in Idaho in 1983.
See footnote These past felony convictions rise to the
level of a significant aggravator in this case where the crimes are murder
and robbery. The trial court did not error when it found the
defendant's criminal history to be a significant aggravating factor.
We conclude that the trial court thoughtfully exercised its discretion in ordering that
both presumptive sentences be enhanced and be served consecutively.
Manifestly Unreasonable Sentence
The defendant also claims the trial court's imposed sentence was manifestly unreasonable, as
it was the maximum sentence permitted by law.
Article 7, § 4 of the Indiana Constitution authorizes the review and revision
of criminal sentences imposed. This authority is implemented through Indiana Appellate Rule
7(B), which provides: "The Court shall not revise a sentence authorized by
statute unless the sentence is manifestly unreasonable in light of the nature of
the offense and the character of the offender."
Here, the defendant smashed Edwin Massengill's skull with repeated blows of a sledgehammer.
As Massengill lay dying, the defendant rummaged through the house stealing a
handgun, two rifles, and the victim's wallet. The defendant has prior convictions
of burglary and grand theft. Given the nature of the offense and
the character of this offender, the sentence is not manifestly unreasonable.
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind.Code § 35-42-1-1.
Footnote: Ind.Code § 35-42-5-1.
Footnote: The defendant was also convicted of felony murder and theft, but these
two convictions were merged into the murder and robbery convictions respectively at sentencing.
Following the presentation of evidence and before final arguments, the trial court
and counsel reviewed the trial court's intended instructions, one by one. Record
at 822-48. Our review of this colloquy discloses no objection or argument
by the defense on this issue. We note, however, that at one
point, when the defense stated that, "for purposes of the record," it "oppose[s]
any instruction on the transferred intent," the trial court responded: "Oh, I
understand that. And we'll give you time. . . . I guess
we're going through these now as a practical matter. What I'll do
is after we're done with closings, we'll let you make specific verbatim objections
to each instruction." Record at 841. The defendant does not cite,
nor do we find, any point in the record showing that further specific
objections were made.
The State also highlights the defendant's conviction for misdemeanor driving under the
influence in 1996.