ATTORNEY FOR APPELLANT
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
SUPREME COURT OF INDIANA
KEITH GERARD WHEELER, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 45S00-0006-CR-377
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James E. Letsinger, Judge
Cause No. 45G02-9807-CF-150
ON DIRECT APPEAL
June 20, 2001
Keith Gerard Wheeler was convicted of murder and criminal confinement and sentenced to
sixty-five years imprisonment. In this direct appeal, he contends that: (1)
the trial court erred in failing to hold a hearing to determine his
competency prior to trial; (2) the trial court abused its discretion in admitting
a mug shot of Wheeler; (3) the trial court abused its discretion in
admitting autopsy photos of the victims severed body; and (4) there was insufficient
evidence to support Wheelers conviction for confinement. We affirm the judgment of
the trial court.
Factual and Procedural Background
On the evening of July 24, 1998, Wheeler met Iola Merriweather on the
street and invited her to his home to smoke crack cocaine. Merriweather
and Wheeler smoked and listened to music for several hours in Wheelers basement.
Wheelers friend Pierre, and his three children were upstairs. At some
point, Elaine Curatolo and a man arrived at Wheelers house to purchase crack.
While Wheeler and Pierre packaged the mans drugs, Merriweather and Curatolo smoked
more crack. Curatolo and the man then left the house.
Later that evening, Curatolo returned to Wheelers home, picked up Merriweather, and drove
aimlessly while smoking more crack. When the two returned to Wheelers home
to purchase yet more crack, Wheeler and Pierre were waiting outside and Wheeler
accused the pair of stealing drugs from him. Wheeler ordered Merriweather and
Curatolo into the house, locked the doors, and stated that somebody is going
to die. Pierre grabbed a pot and directed Merriweather to kill Curatolo
with it. Merriweather hit Curatolo with the pot and dropped it to
the floor. Wheeler then picked up the pot, hit Curatolo with it
until she fell to the floor, and continued striking Curatolo with the pot
and his fists. Curatolo retaliated by grabbing the pot and hitting Wheeler
in the face. Wheeler began choking Curatolo, then dropped his stereo on
her head, and repeatedly slammed a television set into her. A witness
later saw Wheeler and Pierre carrying Curatolos body into Wheelers car.
During the beating, Wheeler told Merriweather that she could leave, but Pierre stopped
her, ordered her to remove her clothes, and engaged in a full body
cavity search in an attempt to locate the missing drugs. Wheeler then
ordered Pierre to take Merriweather downstairs, which he did. When Pierre returned
upstairs, Merriweather fled from the house naked and went to a neighbors home
where she found clothing and someone to call the police.
The police arrived, spoke with Merriweather, and drove to Wheelers home where they
found blood on the sidewalk and front steps. The police pounded on
the door, and when no one answered they entered and found blood on
the walls, floors, blinds, and carpeting. Later that evening, Wheeler returned to
his home with injuries to his face and hands and was arrested.
The next morning a conductor on a Norfolk Southern train heading to Chicago
spotted Curatolos body on the tracks. Although he applied the brake, by
the time the train came to a halt the body had been severed
at the waist. An autopsy was performed and a pathologist determined that
Curatolo had died from blunt force trauma, but was unable to determine whether
she was alive when the train severed her body. The police found
automobile tire tracks near the train tracks, a cigarette butt that had DNA
on it consistent with Wheelers, Curatolos blood scattered at the scene, and blood
in Wheelers car that was consistent with Curatolos.
Wheeler claimed that although he hit Curatolo, another man killed her. At
a jury trial, Wheeler was found guilty of murder and criminal confinement and
sentenced to sixty-five years imprisonment.
Wheeler claims that the trial court abused its discretion by not holding a
competency hearing. Before trial, Wheeler filed a motion to proceed pro se.
The trial court granted this motion, but then ordered an examination to
determine whether Wheeler was competent to conduct his own defense. The first
two doctors who examined Wheeler had differing opinions on his competency. Neither
opinion is included in the record. The trial court ordered a third
examination. Before the examination, Wheeler withdrew his request to proceed pro se.
The trial court granted that request, but allowed the third doctor to
examine Wheeler. That doctor determined that Wheeler could easily assist his counsel
in his defense [and that] [t]here was no evidence here of incapacity.
The trial court then proceeded to trial without holding a hearing on Wheelers
Indiana Code section 35-36-3-1(a) requires the trial court to conduct a hearing on
competency if the court has reasonable grounds for believing that the defendant lacks
the ability to understand the proceedings and assist in the preparation of his
defense. It is well settled that a defendant does not have an
absolute right to a competency hearing where the examining doctors have reported that
he is competent to stand trial.
Clifford v. State, 457 N.E.2d 536,
540 (Ind. 1984). Our statute and due process considerations require that a
hearing take place only if the evidence before the court raises a reasonable
doubt as to the defendants competency. Id. Here, Wheeler himself did
not file a motion to challenge competency and there were written findings by
a doctor that Wheeler was competent. We cannot say that the trial
court erred in concluding that there was no reasonable doubt as to competency
and in failing to hold a hearing on competency. Woods v. State,
547 N.E.2d 772, 788 (Ind. 1989) (holding that no hearing was required where
there were written reports supporting defendants competency), abrogated on other grounds by Richardson
v. State, 717 N.E.2d 32, 49 n.36 (Ind. 1999).
II. Mug Shots
Wheeler also claims that the trial court abused its discretion by admitting mug
shot photographs of him. At trial the State introduced several photographs of
Wheeler that were taken when he was arrested for the current crime.
Wheeler claims that admission of these photographs violated Indiana Rule of Evidence 403.
We review the admission of photographic evidence for an abuse of discretion.
Humphrey v. State, 680 N.E.2d 836, 842 (Ind. 1997). Rule 403 prohibits
the admission of photographic evidence if the probative value of the photograph is
substantially outweighed by the danger of unfair prejudice. Powell v. State, 714
N.E.2d 624, 629 (Ind. 1999).
The photographs have probative value. They show the head wound Wheeler sustained
while he was attacking Curatolo. This corroborates Merriweathers testimony describing the murder.
Contrary to Wheelers contention, this evidence does make it more or less
likely that the defendant committed the crime in question.
See Underwood v.
State, 535 N.E.2d 507, 517 (Ind. 1989) (photographs that corroborate a witness testimony
Nor are the photographs unfairly prejudicial. The typical objection to mug shots
is to photographs taken in conjunction with a prior arrest. The usual
objection is based on the danger that jurors may infer a criminal history
from the pictures. These photographs were taken at the time of Wheelers
arrest on the current charges and are clearly marked with the arrest date,
July 25, 1998. When the photographs were introduced into evidence, the detective
noted that they were taken on the morning of Wheelers arrest. These
photographs were placed into evidence by the State to support its contention that
Wheeler sustained a head injury while killing Curatolo. As in Coleman v.
State, [a] jury naturally would presume that appellant was arrested on the instant
charge. 546 N.E.2d 827, 831 (Ind. 1989) (allowing admission of mug shot from
current case). Because the probative value of the photographs was not substantially
outweighed by a danger of unfair prejudice, the trial court did not abuse
its discretion in admitting the mug shots.
III. Autopsy Photographs
During its case in chief, the State offered six autopsy photographs of Curatolo.
Wheeler objected to one of the photographs, States Exhibit 92.
See footnote Wheeler
contends that the admission of this photograph violated Indiana Rule of Evidence 403.
This issue also turns on the balance of probative value versus prejudice which
we review for an abuse of discretion. Humphrey v. State, 680 N.E.2d
836, 842 (Ind. 1997). Although a photograph may arouse the passions of
the jurors, it is admissible unless its probative value is substantially outweighed by
the danger of unfair prejudice. Cutter v. State, 725 N.E.2d 401, 406
(Ind. 2000) (quoting Ind. Evidence Rule 403). 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. Byers v. State, 709
N.E.2d 1024, 1028 (Ind. 1999) (citations omitted).
States Exhibit 92 showed Curatolos body after being beaten and hit by a
train. It assisted the jurors in understanding the pathologists description of Curatolos
injuries and the probable cause of death.
See Edgecomb v. State, 673
N.E.2d 1185, 1196 (Ind. 1996). Furthermore, in a case such as this
where the pathologist is uncertain exactly what caused the victims death, this Court
has previously ruled that admitting photographs of a dismembered corpse was not an
abuse of discretion. See Komyatti v. State, 490 N.E.2d 279, 287 (Ind.
1986). Wheeler argues that it is time for this Court to draw
a line to determine when autopsy photographs are too prejudicial and to give
meaning to Rule 403. Although we agree with Wheeler that there are
cases in which a distorted and disturbing photograph may be too prejudicial to
be admitted, this is not one of them. The trial court did
not abuse its discretion in admitting States Exhibit 92.
IV. Sufficiency of the Evidence
Finally, Wheeler claims that there is insufficient evidence to support his conviction for
the criminal confinement of Merriweather. Our standard for reviewing a claim of
sufficiency of the evidence is well settled. We do not reweigh the
evidence or judge the credibility of witnesses.
Spurlock v. State, 675 N.E.2d
312, 314 (Ind. 1996). We look to the evidence and the reasonable
inferences therefrom that support the verdict and will affirm a conviction if evidence
of probative value exists from which a jury or judge could find the
defendant guilty beyond a reasonable doubt. Id.
In this case, there is sufficient evidence to support Wheelers conviction for criminal
confinement. The crime of criminal confinement requires that the State prove that
Wheeler: (1) knowingly or intentionally (2) confined another person (3) without her
consent. Ind. Code § 35-42-3-3 (1998). The jury was instructed on
accomplice liability and, therefore, could have found Wheeler responsible for the actions of
At trial, Merriweather testified that Wheeler and Pierre ordered Curatolo and her into
the house. Wheeler admitted that he locked the doors and prevented anyone
from leaving the house. This evidence supports his conviction for criminal confinement
of Merriweather. Wheeler points to the fact that he told Merriweather to
leave after the initial confinement and that Pierre forced her to stay and
consent to a cavity search as evidence that he did not confine Merriweather.
However, Wheeler is responsible for the actions of his accomplice and assisted
in them when he ordered Pierre to take Merriweather downstairs. This is
also sufficient evidence to support Wheelers conviction for the criminal confinement of Merriweather.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concurs.
Both the State and Wheeler cite Splunge v. State as the test
governing admission of mug shots. See 641 N.E.2d 628, 632 (Ind. 1994)
(Mug shots . . . will be allowed if (1) they are not
unduly prejudicial and (2) they have substantial independent probative value.) (citations omitted).
Although this test is similar to Indiana Rule of Evidence 403, the formulation
was derived from cases decided before the adoption of the Indiana Rules of
Evidence. The rules themselves set forth the current formulation to the extent
they address an issue specifically.
At the start of the discussion on the admission of the photographs,
Wheeler expressed objection to the photographs. After discussing each photograph in detail,
Wheeler amended his objection: Your Honor, Im not objecting and saying that
none of those photographs should come in. My main concern is with
this ninety-two. I mean, if these other photographs are, if they illustrate these
injuries as the state states, then I really dont see any purpose in
this first photograph. Wheelers objections on the other photographs are therefore waived.
Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000) (Failure to object
to the admission of evidence at trial normally results in waiver . .
. .). In any event, the State noted that Exhibit 92 was
the most graphic of the set. For the reasons discussed above, the
trial court did not abuse its discretion in admitting the other photographs of