ATTORNEY FOR APPELLANT
Thomas J. LaFountain
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
SUPREME COURT OF INDIANA
FREDDIE L. BYERS, JR., )
Appellant (Defendant below), )
v. ) Supreme Court
) Cause No. 71S00-9808-CR-455
STATE OF INDIANA, )
Appellee (Plaintiff below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D04-9701-CF-59
ON DIRECT APPEAL
May 3, 1999
Freddie L. Byers, Jr. was convicted of two counts of murder, one count of attempted
murder, and one count of robbery as a Class B felony. He was sentenced to the maximum term
of years for each count, to be served consecutively, for a total sentence of 200 years
imprisonment. In this direct appeal, he contends that the trial court erred by: (1) excusing
the only African-American on the jury panel for cause, (2) allowing testimony and a
photograph from a prior arrest into evidence, (3) admitting a photograph of allegedly
gruesome knife wounds to one of the victim's neck into evidence, and (4) instructing the
jury on the issue of inconsistent statements made by a witness. We affirm the trial court.Factual and Procedural Background
Byers, known to some as Flint, was convicted of murdering Bennie Spears and
James Edison and attempting to murder Almeka Dodds. Spears and Dodds lived in a South
Bend home with their two children, ages one and two. Edison was visiting the home in the
late afternoon of January 30, 1997, when a knock was heard at the door. Dodds recognized
the two visitors as Flint and Gill. Flint was a friend of Spears who had previously been
to the home [a] whole bunch of times, but Dodds had met Gill only [a] couple of times
and he had never previously been to the home. Dodds went to the dining room where she
heard Spears tell Flint not to point a gun at him, then heard a gunshot. When she turned
around, she could see that Spears had been shot and Flint was holding a gun.
After Flint grabbed Dodds by the hair and asked where the money was, Dodds
retrieved cash hidden in the living room sofa. Meanwhile, Flint told Gill to lock the children
in the bathroom, get a knife from the kitchen, and cut Edison's neck. Gill complied. Flint
then told Gill to take Dodds to the basement and shoot her twice in the head. As Dodds was
being taken to the basement, Edison got up from the floor and tried to escape through a
window. A neighbor saw Edison fly[ ] out of the window then fall to the ground. As he
rose, Edison was shot in the head. The neighbor drove to a pay phone and called 911. Flint
or Gill then fired shots into the basement, where Dodds tried to hide until [she] could stop
hearing gunshots. After Dodds believed the intruders had left the house, she ran to a
neighbor's house. When police arrived, they found the two children locked in the bathroom.
Spears and Edison both died of gunshot wounds. I. Excusing a Juror for Cause
Dodds supplied the police only with the names Flint or Fred and Gill. However,
she also said that the police should have a picture of Flint from an incident that occurred
at the home of Flint's girlfriend Yolanda a few months earlier on the evening of the
Tyson/Holyfield fight. The police identified Byers as a person who had been arrested at that
time and place. They then assembled photo arrays from which Dodds identified Byers as
Flint. Based largely on Dodds' testimony and identification, Byers was charged, tried and
Byers first contends that the trial court erred when it excused the only African-
American prospective juror for cause. During voir dire, the juror stated that he had been
previously represented by Byers' trial counsel in a criminal case in which he pleaded guilty
to trespass. He felt that he was treated unfairly in that case by the police, agreed that
serving as a juror in the case might present a problem, and stated that if he were the
defendant having someone in his position serve as a juror would probably be a plus on my
Trial courts have the inherent discretion to excuse prospective jurors and abuse that
discretion only when it is exercised in an illogical or arbitrary manner. Owens v. State, 659
N.E.2d 466, 476 (Ind. 1995) (citing Campbell v. State, 547 N.E.2d 843, 844 (Ind. 1989)).
This Court has previously held that a trial court did not abuse its discretion by excusing a
prospective juror for cause solely because one of the attorneys for a party had recently drawn
wills for the prospective juror and her husband. Lamar v. State, 266 Ind. 689, 696, 366
N.E.2d 652, 656 (1977). In this case, the attorney-client relationship is at least as
problematic because of the closer similarity between this proceeding and the one in which
defense counsel had represented the juror. Moreover, the excused juror also indicated that
he had not been treated fairly by the police and that his service would probably be a plus
for Byers, both suggesting an inability to be impartial beyond extending Byers his
constitutional presumption of innocence. See Ind. Code § 35-37-1-5(a)(11) (1998) (listing
[t]hat the person is biased or prejudiced for or against the defendant as one of fifteen good
causes for challenge to any person called as a juror in any criminal trial).See footnote
circumstances, the trial court did not abuse its discretion by excusing the juror.
II. Prior Arrest
Byers next argues that the trial court erred by allowing State's witnesses to testify
about his prior arrest on an unrelated charge. Evidence Rule 404(b) provides in part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible for
other purposes[.] The rule is designed to prevent the jury from making the forbidden
inference that prior wrongful conduct suggests present guilt. Barker v. State, 695 N.E.2d
925, 930 (Ind. 1998). In order for this evidence to be admissible, the court must (1)
determine that the evidence is relevant to a matter at issue other than the defendant's
propensity to commit the charged act, and (2) balance the probative value of the evidence
against its prejudicial effect pursuant to Rule 403. Id. These issues are reviewed for an
abuse of discretion. Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997).
Evidence relating to Byers' prior arrest was highly relevant to Dodds' identification
of Byers as the perpetrator. When Dodds initially spoke to police she knew Byers only as
Flint or Fred, but told the police that they should have a picture of him from an incident
that occurred on the night of the Tyson/Holyfield fight at a house on Birdsell Street where
Flint's girlfriend Yolanda lived. Based on this information, the police located an arrest
report from that evening, as well as four photographs of men arrested during the incident.
The police then created four separate six-person photo arrays of individuals similar in
appearance to each of the four photographs from the Birdsell Street incident. These four
arrays were then shown to Dodds, who identified Byers as the person known to her as Flint.
Testimony regarding the prior incident was relevant and necessary to explain the eventual
identification of Byers, and highly probative because it corroborated Dodd's testimony that
she knew Flint, and that Byers was Flint.
Second, the probative value of the photograph was not substantially outweighed by
the danger of unfair prejudice. As explained above, testimony relating to the prior arrest was
necessary to explain the eventual identification of Byers through a photo array. As to any
potential for prejudice, the trial court specifically admonished the jury that
this information about another incident, whatever it was, and there being an arrest, if
you do conclude -- if you accept that testimony and if you do conclude that that gave
rise to a picture that was used and has or has not been identified here in court, that
other incident if you find that it generated a picture and it was of the Defendant, if
that's what you find, and I'm not saying you will. But if you do, that other incident
should not be used by you -- first of all, you don't even know what it was about.
Secondly, an arrest doesn't mean that anybody did something. It means the police
arrested somebody. And third and most important, it is very important that you know
that you cannot use the possibility that there had been some other contact with law
enforcement as evidence here that the Defendant did anything wrong in these charges.
So to suggest, okay, well, if he was arrested on that day, that means it is more likely
that he did something this time. No, no, no, you can't use that [at] all for that
purpose, at all. All it is here for, if you find that it's relevant, is as explaining how
the police may or may not have come up with some pictures.
This admonishment minimized the possibility that the jury would make the forbidden
inference. In addition, the trial court specifically prohibited the State from eliciting any
information as to the nature or outcome of the prior arrest.See footnote
The probative value of this
evidence was not substantially outweighed by the danger of unfair prejudice from the jury
learning of Byers' earlier arrest for this undefined offense. The trial court did not err by
allowing witnesses to testify about the Birdsell Street incident.
Byers also contends that the trial court erred in admitting the actual photo arrays from
which he was identified by Dodds. According to Byers, [b]y allowing the mug shots into
evidence, the jury was allowed more than enough information to infer that Byers had been
previously arrested. . . . There was simply no reason for the inclusion of the pictures into
evidence other than to prejudice Byers. The trial court observed that the jury had already
heard testimony, over objection, that photographs were taken in conjunction with arrests on
the evening of the Tyson fight. The admission of the photo arrays added no prejudicial
inference that was not already created by the testimony of the prior arrest. The probative
value of the photographs was not substantially outweighed by the potential for prejudice, and
the trial court did not err by admitting them. III. Gruesome Photograph
Byers next argues that the trial court erred in admitting State's Exhibit 23, a
photograph taken of Edison at the crime scene that depicted knife wounds on his neck.
Defense counsel objected to the exhibit on the grounds that it was gruesome,
inflammatory, and unduly prejudicial. The trial court overruled the objection.See footnote
We review the admission of photographic evidence for an abuse of discretion.
Humphrey v. State, 680 N.E.2d 836, 842 (Ind. 1997). To constitute error, the probative
value of the photograph must be substantially outweighed by the danger of unfair
prejudice[.] Ind. Evidence Rule 403; see also Bufkin v. State, 700 N.E.2d 1147, 1149 (Ind.
1998). The photograph was identified by a police officer who testified that it depicted Mr.
Edison with the two cut marks to the neck area. The photograph was taken after the medics
and the officer turned over Edison, who had been lying facedown in the snow. In addition,
the photograph corroborated the testimony of Dodds, who saw Gill cutting Edison's neck
with a kitchen knife at Byers' direction. 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 v. State, 696 N.E.2d 44, 45 (Ind. 1998); see also Woods
v. State, 677 N.E.2d 499, 504 (Ind. 1997).See footnote
Because any potential for prejudice does not
substantially outweigh the photograph's probative value, the trial court did not abuse its
discretion by admitting the photograph. IV. Jury Instruction
As a final point, Byers contends that the trial court erred when it removed one
sentence dealing with alleged inconsistencies in Dodds' testimony from one of his tendered
final instructions. The tendered instruction read as follows:
The credibility of a witness may be attacked by introducing evidence that on some
former occasion the witness made a statement inconsistent with his testimony in this
case. It is inconsistent if the witness denied making the prior statement. Evidence of
this kind may be considered by you in deciding the weight to be given the testimony
of the witness.
Over Byers' objection, the trial court deleted the second sentence because Dodds had not
denied making the prior statements but rather consistently testified that she did not remember
making the prior statements. Indeed, with one exception Dodds stated I don't recall or I
don't remember when asked about several specific details of the crime.
A trial court erroneously refuses a tendered instruction when: (1) the instruction
correctly sets out the law; (2) evidence supports the giving of the instruction; and (3) the
substance of the tendered instruction is not covered by the other instructions given. Legue
v. State, 688 N.E.2d 408, 411 (Ind. 1997). The same holds true when a trial court refuses
part of a tendered instruction. In this case, the trial court deleted one sentence that was not
supported by the evidence, and the general issue of Dodds' credibility is covered by the two
sentences that remain. The trial court did not err by modifying Byers' instruction.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
1 As Lamar makes clear, the statutory list of factors is not exhaustive. 266 Ind. at 696, 366 N.E.2d
at 656 (Although an attorney-client relationship is not enunciated as one of the causes for challenge, this
Court has recognized the legitimacy of such a challenge.) (citing Klinck v. State, 203 Ind. 647, 179 N.E.
2 In discussing the 404(b) evidence prior to the start of the trial, the trial court stated: There's not
going to be one word from any of the officers about what was going on or why these people got arrested or
what the possible charges were going to be, none at all.
3 The State first offered Exhibit 23 during the testimony of South Bend Police Officer Steven
Hammer. At that time, defense counsel had no objection and the exhibit was admitted into evidence. Later in
the trial, the State asked Dr. Michael Gerald Quinn, the pathologist who performed the autopsies of Edison
and Spears, if State's 23 fairly and accurately show[s] James Edison the way you saw him? At a sidebar
conference, the trial court stated that 23 was already admitted, I believe, but the State believed the exhibit
had only been identified earlier and not admitted. The trial court then entertained Byers objection and
overruled it. Although certainly not required to do so, trial courts have the authority to reconsider rulings on
the admissibility of evidence prior to an exhibit being passed to the jury. Under these circumstances, Byers'
belated objection preserved the issue for our review, as the State concedes.
4 Because the photograph was later identified by the pathologist who performed the autopsy as being
an accurate depiction of Edison, Byers argues that the photograph was in the nature of an autopsy
photograph and therefore inadmissible because the knife wounds shown in the photograph were not relevant
to the finding of the cause of death. Byers cites Grimes v. State, 450 N.E.2d 512, 516 (Ind. 1983) for the
proposition that [a]utopsy photographs are admissible when relevant to a victim's cause of death and
illustrative of a witness' testimony. A pathologist's testimony regarding a crime scene photograph does not
transform it into an autopsy photograph. Evidence Rule 403, not Grimes, controls the determination of its
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