ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
GREGORY L. LEWIS CHRISTOPHER L. LAFUSE
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
BRANDON TYLER CUSTIS, ) ) Appellant-Defendant, ) ) vs. ) No. 11A01-0210-CR-420 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Corbett v. State, 764 N.E.2d 622, 627 (Ind. 2002) (internal citations and quotation
omitted). For its admission to amount to reversible error, a photograph must
be irrelevant to an issue or its probative value must be substantially outweighed
by the danger of unfair prejudice. Evid. R. 402; Evid. R. 403;
Bufkin v. State, 700 N.E.2d 1147, 1149 (Ind. 1998).
Photographs that depict a victims injuries are generally relevant and admissible. Wallace v. State, 725 N.E.2d 837, 839 (Ind. 2000). However, the graphic portrayal of an autopsy by a photograph or photographs carries the potential for displaying more than the state of the victims body at the time it was discovered. Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982). Autopsy photos often present a unique problem because the pathologist has manipulated the corpse in some way during the autopsy. Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997), rehg denied, cert. denied 525 U.S. 1073 (1999).
Autopsy photographs are generally inadmissible if they show the body in an altered condition. Corbett, 764 N.E.2d at 627. This is so because the photographs may impute to the accused the handiwork of the pathologist and thereby render the defendant responsible in the minds of the jurors for the cuts, incisions, and indignity of an autopsy. Turben v. State, 726 N.E.2d 1245, 1247 (Ind. 2000).
Notwithstanding that general rule, there are situations where some alteration of the body is necessary to demonstrate the testimony being given. Corbett, 764 N.E.2d at 627; and see Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000) (photograph of pathologist holding open a vagina to show bruises was properly admitted as relevant to show the by force element of the rape charge), rehg denied; Fentress v. State, 702 N.E.2d 721, 722 (Ind. 2000) (two photographs depicting the victims skull with the hair pulled back were admissible because the pathologist explained the alteration was necessary to determine the extent of the victims injuries).
In Swingley v. State, 739 N.E.2d 132 (Ind. 2000), the defendant was convicted of murdering the victim by slashing his throat. At the States request, the trial court admitted three autopsy photographs, two of which depicted the victims gaping neck wound and one of which depicted the victims windpipe or larynx removed from the body and lying on a sheet. On appeal, Swingley argued the trial court erred in admitting the photographs because the victims body had been altered. Finding that the pathologist had done nothing to the body in the first two photographs other than clean the gaping wound and reposition the body, our supreme court held them properly admitted. Id. at 134.
In contrast, the court found the removed larynx to be the type of alteration that Allen contemplates. Noting that other evidence depicted the extent of the victims wounds and the cause of death, the court held that the trial court erred in admitting the photograph of the larynx. Id.; See also Turben, 726 N.E.2d at 1247 (photograph inadmissible that depicted gloved hands manipulating with a probe a bloody mass representing victims head with skin and bones cut open and peeled back to expose interior of victims neck).
Here, outside the presence of the jury, the State proffered five photographs of Tony that were taken during the autopsy. See footnote Exhibit 74 was an 8 ½ by 11-inch black and white photograph of Tonys head. It shows Tonys empty brain cavity with the top of his skull and his brain removed. The photographs also show the gloved hand of Dr. Kohr holding a ruler inside the brain cavity and pointing out the path of the bullet.
The State argued the photographs were relevant
on at least two aspects, especially in a self-defense issue which is, of course, an issue here. One being the path of the bullet and that leads secondly to the testimony about the relevance of defensive wounds or lack thereof. And Dr. Kohr testified that those photographs would help demonstrate that, so the relevance would be high. Weve attempted to lessen the impact by submitting them as black and white photographs. And, Your Honor, I think also this would be extremely important when we have a trial based on self-defense which with the conflicting testimony already about the defendant waiving [sic] a gun in the air versus an eye witness who saw them standing face to face. These two issues, the path of the bullet and the lack of defensive wounds, will be directly relevant on the heart of this case[.]
(Tr. at 665-66.) Custis argued:
The issue for the jury is not whether the firing of that weapon killed Tony Vanet. So to show this jury these exhibits, specifically 74 and 75, which Ill characterize as gruesome, grotesque, is highly inflammatory, is going to allow sympathy and prejudice in the jury against the defendant . . . If the defendant was saying I didnt pull the trigger or I shot him from fifty feet away, or he didnt die because of my shot, they would be relevant, and I wouldnt be making this objection. But he is not doing any of those arguments. Hes saying I fired the shot, that shot resulted in Tonys death; therefore, there is no probative value to putting these gruesome pictures into evidence.
Id. at 662.)
We commend the trial court for its thorough evaluation of the probative value and prejudicial impact of the photographs in this case See footnote and find the trial court did not abuse its discretion in admitting Exhibit 74. The photograph was relevant to show the trajectory of the bullet and whether Tony had defensive wounds. The States theory was that Custis pulled a gun out of his pocket and shot Tony without warning. The straight trajectory of the bullet and the absence of defensive wounds to Tony is consistent with the States theory. Under Evid. R. 401, the photograph did make a fact of consequence to the determination of the case more or less probable than it would have been without the evidence.
While the photograph was of an autopsy, the danger of unfair prejudice was lessened because it was in black and white and the scene represented in the photograph was fully explained to the jury by Dr. Kohr. Dr. Kohr explained that the ruler in his gloved hand, pictured in the photograph, pointed to a darkened area showing the straight, front-to-back path of the bullet, which had no deviation left or right. In Fentress, 702 N.E.2d at 722, the pathologist explained to the jury in great detail that, in order to determine the extent of the damage to the victims skull, he needed to look under the skin. The pathologist described to the jury the nature of the victims injuries that he uncovered and the likely cause of those injuries. Our supreme court found the potential for confusion minimal because the pathologist described the procedure and its outcome to the jury and the jury also had pictorial evidence of the victim prior to the procedure. Id. The trial court was therefore within its discretion in determining that the probative value of this evidence--to show the force of the blow which in turn bore on the intent to kill--outweighed its prejudicial effect. Id. We believe the Fentress reasoning requires the same result in the case before us. The trial court did not abuse its discretion in admitting Exhibit 74.
Even if the trial court erred in admitting the photograph that error does not warrant reversal. An error in admitting evidence is harmless if its probable impact on the jury, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of a party. Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002). In Buchanans prosecution for child molesting, the trial court erroneously admitted evidence in the form of an assortment of drawings, postcards depicting nude or semi-nude young girls, and a magazine containing nude photographs of women titled Little Girls. Id. at 969. The drawings and photographs were not tied to Buchanans relationship with the victim. The other evidence available to the jury for consideration included the victims testimony, the statements of five adults that the victim told them essentially the same story, and Buchanans statements to FBI agents that were consistent with the victims testimony. Our supreme court found the erroneous admission of the drawings and photographs harmless: Given the substantial quantity of incriminating evidence presented, particularly the defendants confession, we find that the admission of the drawings and postcards did not affect the defendants substantial rights and does not warrant reversal. Id. at 970.
Similarly, in Swingley, the court found harmless the erroneous admission of a photograph of the victims windpipe or larynx removed from the body and lying on a sheet. The court found it improbable that the gruesome slide had any significant impact on the jurys decision where two men had seen Swingley commit the crime and four other people on separate occasions heard the defendant say he cut the victims throat. 739 N.E.2d at 134. The admission of the slide therefore did not affect Swingleys substantial rights, and the error was disregarded as harmless. Id.
Admission of the autopsy photograph in the case before us did not affect Custis substantial rights. Custis asserts the exhibit might have caused the jury to find him guilty of murder rather than finding him not guilty or finding him guilty of the lesser offense of voluntary manslaughter, because the jury might have unfairly rejected the evidence of self-defense and sudden heat because it held him responsible for the cuts, incisions, and indignity of the autopsy. (Br. of Defendant-Appellant at 12.)
Dr. Kohr testified to the alterations he had made in the brain cavity in order to show the path of the bullet; the jury therefore could not have held Custis responsible for the . . . indignity of the autopsy. Swingley, 739 N.E.2d at 133. Further, as in Buchanan and Swingley, the substantial quantity of incriminating evidence presented indicates Custis substantial rights were not affected by the admission of the autopsy photograph. The jury heard testimony that Custis and Tony fought a few hours before Tony was killed. The two argued again later that night before deciding to fight in the bank parking lot. They fought there for a short time before moving the fight to the church parking lot. After the group arrived at the church, Custis was given a gun and he concealed it in his pants. At one point, the Vanets started to leave the parking lot when Custis made a slashing motion across his throat and told Paul Vanet Im going to kill your brother. Your brothers dead. (Tr. at 488.) A number of witnesses testified that Custis did not show his concealed weapon or warn Tony before shooting him. Custis testified he knew Tony was unarmed but shot him anyway. Even if admission of the black-and-white autopsy photograph was error, it was harmless in light of the overwhelming evidence that Custis was guilty and that he was not acting in self-defense or sudden heat.
Custis contends the trial court erred because it did not consider certain mitigating circumstances that would have supported a lesser sentence. Sentencing lies within the discretion of the trial court. Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999), rehg denied. When a judge increases the presumptive sentence, the record must disclose what factors were considered mitigating and aggravating. Harrington v. State, 584 N.E.2d 558, 565 (Ind. 1992), (emphasis supplied) rehg denied. By contrast, when the trial court imposes the basic sentence prescribed by a particular criminal statute, compliance with the applicable sentencing statutes is presumed regardless of whether the record includes the trial courts specific enumeration of aggravating and mitigating factors. Jones v. State, 698 N.E.2d 289, 290 (Ind. 1998).
The trial court sentenced Custis to a term of fifty-five years for murder, thirty years for attempted murder, and one year for carrying a handgun without a license. These were the presumptive sentences for each of those crimes and the sentences were to run concurrently. Because Custis received the presumptive sentence for each of his convictions and the sentences were not ordered served consecutively, we cannot say the trial court erred in failing to recognize the mitigating circumstances Custis offered.
BRANDON TYLER CUSTIS, )
vs. ) No. 11A01-0210-CR-420
STATE OF INDIANA, )
DR. KOHR: Yes, sir.
MR. FUHS: Had Mr. Thomas [the States attorney] told you that?
DR. KOHR: No, he had not.
MR. FUHS: Okay. Well, if I tell you that the cause of death
is not an issue in this case, and assume thats true, and assume
Exhibit 73 which is a frontal view comes into evidence, youre going to
testify that the wound to the cheek caused the death of Tony Vanet?
DR. KOHR: Yes, sir.
Transcript at 656. Apparently, Dr. Kohr was not told until the trial
that Custis agreed with Dr. Kohrs opinion as to the cause of death.
When asked how the photographs of Tonys brain cavity were relevant, Dr.
Kohr stated that they showed the position the decedent was assuming at the
time of the shooting, i.e., whether he was trying to allude [sic] a
shot or take it face on or whether he made any type of
defensive posturing or movement. Transcript at 657.
Still outside the presence of the jury, Fuhs objected to the admission of the photographs as follows:
T]he defendant has never asserted that he did not shoot Tony Vanet. In fact, he has maintained throughout the pre-trial conferences, I think throughout my opening remarks and its gonna [sic] be his testimony that he shot Tony Vanet. That the bullet which . . . exited his handgun . . . struck Tony Vanet. Exhibit 73, which is going to be shown to the jury, is going to show that the bullet entered Tony Vanet I believe in the right cheek area. Dr. Kohr, who did the autopsy, can certainly testify that that bullet wound was fatal, that that bullet wound caused the death of Tony Vanet. Mr. Custis does not dispute that. Mr. Custis says I was justified in firing that weapon. Thats the issue for the jury. The issue for the jury is not whether the firing of that weapon killed Tony Vanet. So to show this jury these exhibits, specifically 74 and 75, which Ill characterize as gruesome, grotesque, is highly inflammatory, is going to allow sympathy and prejudice in the jury against the defendant. In these types of cases, the case law is clear that the court needs to balance the probative value of these pictures against the potential inflammatory nature and the prejudice to the defendant. If the defendant was saying I didnt pull the trigger or I shot him from fifty feet away, or he didnt die because of my shot, they would be relevant, and I wouldnt be making this objection. But he is not doing any of those arguments. Hes saying I fired the shot, that shot resulted in Tonys death; therefore, there is no probative value to putting these gruesome pictures into evidence. I think the prejudice far outweighs any probative value in a case of this magnitude. Frankly, I dont know why Mr. Thomas, as an officer of the court, is offering them since weve conceded what the doctors testimony is going to be on cause of death. Weve conceded it was a straight-on shot. The evidence is going to be it was at close range. . . . I know the court has discretion in this regard and I know in some cases gory, gruesome photographs are proper.
Transcript at 661-63.
The States argument that the photographs were relevant was as follows:
Your Honor, I believe [Exhibits 74 and 75] are relevant on at least two aspects, especially in a self-defense issue which is, of course, an issue here. One being the path of the bullet and that leads secondly to the testimony about the relevance of defensive wounds or lack thereof. And Dr. Kohr testified that those photographs would help demonstrate that, so the relevance would be high. Weve attempted to lessen the impact by submitting them as black and white photographs. And, Your Honor, I think also this would be extremely important when we have a trial based on self-defense which with the conflicting testimony already about the defendant waiving a gun in the air versus an eye witness who saw them standing face to face. These two issues, the path of the bullet and the lack of defensive wounds, will be directly relevant on the heart of this case. . . .
Transcript at 665-66.
While I recognize that the trial court took care to evaluate the prejudicial impact of the photographs in this case, and I join the majority in commending the court for such care, I nevertheless believe that Exhibit 74 was not relevant under Ind. Evidence Rule 401 and that the trial court abused its discretion in admitting it. The State asserts that the photograph was relevant to show the trajectory of the bullet and whether Tony had defensive wounds. Although the parties disagreed about whether Custis took out his gun and waved it around before the shooting, both parties agreed that the actual shot that killed Tony was one that took the victim by surprise and was a straight shot to the face. Custiss theory was that the victim would not stop charging at him, and he had to shoot in self-defense. The States theory was that Custis pulled a gun out of his pocket and shot Tony without warning. A straight shot, with no defensive wounds to the victim, would be consistent with both of these theories. The photograph did not make any fact of consequence to the determination of the case more or less probable than it would have been without the evidence, and, thus, I believe it was irrelevant under Rule 401.
Even if relevant, Exhibit 74 should still have been excluded from trial because its probative value was substantially outweighed by the danger of unfair prejudice. Evid. R. 403. Exhibit 74 had very little, if any, probative value. Inspection of the photograph does not reveal how it could have contributed to the jurys understanding of the trajectory of the bullet or the existence of defensive wounds. After offering the photograph into evidence, Dr. Kohr admitted that it is obviously difficult to orient unless youre familiar with neuro anatomy or skull anatomy. Transcript at 687. The jury had no such training. Dr. Kohr explained that the ruler in his gloved hand, pictured in the photograph, pointed to a darkened area showing the straight, front-to-back path of the bullet, which had no deviation left or right. The difficulty in orienting oneself to the inside of Tonys skull, plus the two-dimensional nature of the photograph, make it impossible to determine the trajectory of the bullet or the lack of defensive wounds. The debatable probative value, especially in light of the arguable lack of relevance, is substantially outweighed by the photographs prejudicial nature. Thus I believe it was error to admit the photograph.
An error in the admission or exclusion of evidence may be disregarded unless the error affects the substantial rights of the parties. Wilson v. State, 770 N.E.2d 799, 802 (Ind. 2002). Here, I cannot conclude that this is the case. The photograph was gruesome and the jury likely was impacted. Further, Custis requested, and, over the States objection, the trial court gave an instruction on the lesser-included offenses of murder, i.e., voluntary manslaughter and reckless homicide. From this it can be inferred that the trial court believed the evidence could have supported a conviction of one of the lesser-included offenses. See Anderson v. State, 681 N.E.2d 703, 709 (Ind. 1997) (where a charge is an inherently included offense of murder, a requested instruction on that charge should always be given in a case in which murder has been charged if the evidence warrants it). Since the prejudicial effect of the photograph may have caused the jury to unfairly reject the evidence of self-defense or the evidence that Custis was guilty of only a lesser-included offense, I cannot say that the erroneous inclusion of the photograph did not substantially affect his rights.
I would reverse Custis conviction and remand for a new trial.