ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
BRIAN J. MAY STEVE CARTER
South Bend, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
RICHARD OLIVER, )
Appellant-Defendant, ) Supreme Court Cause Number
STATE OF INDIANA, )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9809-CF-399
ON DIRECT APPEAL
September 28, 2001
A jury convicted Richard Oliver of murder in the stabbing death of Donald
Kime. The jury also adjudged Oliver a habitual offender. The trial
court sentenced him to sixty-five years for the murder enhanced by thirty years
for the habitual offender adjudication. In this direct appeal, Oliver raises five
issues for our review, which we reorder and rephrase as follows: (1)
did the trial court err in denying Olivers motion for a mistrial; (2)
did the trial court err by admitting into evidence the details of one
of Olivers prior convictions; (3) did the trial court err by admitting into
evidence an autopsy photograph; (4) is the evidence sufficient to sustain the conviction;
and (5) did the trial court err during the habitual offender phase of
trial by improperly admitting certain documents into evidence.
The body of sixty-eight-year-old Donald Kime was discovered in his South Bend apartment
on December 27, 1997. The ensuing investigation led to Oliver. In
a videotaped interview with police, Oliver declared that on December 26, 1997, he
was present in Mr. Kimes home when Mr. Kime began making sexual advances
toward him. According to Oliver, a scuffle ensued, and Oliver just stuck
the knife out, and it hit him. R. at 715. A
pathologist testified that Mr. Kime suffered three stab wounds, two were superficial and
the third penetrated his sternum and aorta. According to the pathologist, a
lot of force was required to cut through the sternum. R. at
462. The cause of death was blood loss from the perforated aorta.
A jury convicted Oliver of murder and adjudged him a habitual offender.
The trial court sentenced Oliver to a total term of ninety-five years.
This direct appeal followed. Additional facts are set forth below where relevant.
Oliver first contends the trial court erred in denying his motion for a
mistrial. The facts are these. During voir dire, prospective juror Juan
Rivera mentioned that he had heard of Olivers prior convictions:
JUROR RIVERA: Yeah, all the press and the media, they got like prior convictions,
and they slammed him really bad.
THE COURT: They allege all kinds of things, and they may be very wrong.
You understand? They often are. But can you put that
aside, or are you going to -- is that sort of a stain
there that you cant really get around.
JUROR RIVERA: Well, they mentioned that he was a--.
THE COURT: I just want to know what you think?
JUROR RIVERA: I dont know, I dont know if I could be objective, you
THE COURT: Well, okay. I dont know if the lawyers want to talk
to you further. But I appreciate you telling us that.
R. at 343-44. Defense counsel moved for a mistrial because of Riveras
MR. DRENDALL: Generally, we would move for a mistrial and move to excuse the
panel. Mr. Rivera started to say that he had read that actually
he had said that he had read that Mr. Oliver had beat somebody
up and he went on to begin to say that he was a
THE COURT: I dont think he got it out. Youre trained to listen
for that and Im trained to listen for that, but Ill bet this
jury didnt hear it.
R. at 357. The trial court denied the motion but excused Rivera
for cause. Later, the trial court asked the remaining prospective jurors whether
anyone had a problem deciding the case on the evidence presented at trial
as opposed to anything heard in the press or during voir dire.
The prospective jurors assured the trial court their decision would be based on
the evidence presented at trial. Defense counsel renewed his motion for a
mistrial, which the trial court again denied. Oliver claims error.
A mistrial is an extreme remedy granted only when no other method can
rectify the situation. Jackson v. State, 728 N.E.2d 147, 151 (Ind. 2000).
The denial of a mistrial lies within the sound discretion of the
trial court, and reversal is required only if the defendant demonstrates that he
was so prejudiced that he was placed in a position of grave peril.
Gill v. State, 730 N.E.2d 709, 712 (Ind. 2000). The gravity
of peril is measured by the probable persuasive effect on the jurys decision.
Id. The trial judge is in the best position to gauge
the surrounding circumstances and the potential impact on the jury when deciding whether
a mistrial is appropriate. Id.
The facts of this case are remarkably similar to those in Leach v.
State, 699 N.E.2d 641 (Ind. 1998). In that case a prospective juror
declared during voir dire: [t]he only thing that would bother me is .
. . the second charge that the State has against the gentlemen [sic]
being a Habitual Criminal. Id. at 644 (quotation omitted). Defense counsel
moved for a mistrial, which the trial court denied. On appeal, this
Court determined that because the comment was limited and the evidence against the
defendant was overwhelming, the trial court did not err in denying the motion
for a mistrial. Id. at 645.
Likewise, Riveras comment regarding Olivers criminal history was limited, and the evidence against
Oliver is overwhelming - he admitted to the stabbing. Also, Oliver has
neither alleged nor demonstrated that the trial courts inquiry of the remaining prospective
jurors was inadequate. We conclude the trial court did not err in
denying Olivers motion for a mistrial.
Oliver next contends the trial court abused its discretion by admitting evidence concerning
the details of one of his prior convictions. We disagree. The
record shows that Oliver took the stand in his own defense and admitted
stabbing Mr. Kime. In an apparent effort to bolster his claim of
self-defense and to show that the use of a knife was his only
reasonable alternative, Oliver talked about his size and weight relative to Mr. Kimes
size and weight. The left-handed Oliver also claimed that because of a
shooting incident that resulted in an injury, he now possessed limited strength in
his left hand and no strength in his right hand. Oliver testified,
I cant fight, I cant really grab a person like I used to
do it before I got shot. R. at 779. In a
strategic move, Oliver also admitted several convictions including a robbery that was the
result of a plea agreement.
Before beginning cross-examination, the State sought a side-bar conference to determine whether the
trial court would allow an inquiry into the details of the robbery conviction.
Pointing out that the robbery involved force and occurred in May 1998,
the State argued that it was entitled to pursue this line of questioning
to impeach Olivers testimony that he had no strength in his right hand
and limited strength in his left hand a mere five months earlier.
The trial court allowed the inquiry. Over defense counsels objection, the State
proceeded to ask Oliver a series of questions concerning the details of the
trial court struck those questions not specifically related to Olivers use of force.
Ultimately, Oliver admitted that he struggled with his female victim and robbed
her at knifepoint.
Generally, when a prior conviction is introduced for impeachment purposes, the details of
the conviction may not be explored. Skaggs v. State, 260 Ind. 180,
293 N.E.2d 781, 785 (1973); see also Ind. Evidence Rule 609(a) (allowing impeachment
by evidence of certain infamous crimes and crimes involving dishonesty or false statement).
Rather, a witness may be questioned only about whether he or she
had been previously convicted of a particular crime. Skaggs, 293 N.E.2d at
When a party touches upon a subject in direct examination, leaving the trier
of fact with a false or misleading impression of the facts related, the
direct examiner may be held to have opened the door to the cross
examiner to explore the subject fully, even if the matter so brought out
on cross examination would have otherwise been inadmissible.
Tawdul v. State, 720 N.E.2d 1211, 1217-18 (Ind. Ct. App. 1999) (quotations omitted),
We first observe that even assuming Oliver opened the door, the question of
whether he possessed enough strength to rob someone five months after he stabbed
the victim in this case is only marginally relevant and related to a
collateral matter. A claim of self-defense in a homicide prosecution requires, among
other things, that the defendant had a reasonable belief that deadly force was
necessary to prevent serious bodily injury to himself or a third person or
the commission of a forcible felony. Taylor v. State, 710 N.E.2d 921,
924 (Ind. 1999) (quoting Ind. Code § 35-41-3-2 (a)). Whether Oliver possessed
the physical strength to rob a female victim on one occasion does not
make it more or less probable that
he had the physical strength to defend himself against an alleged male attacker
on this occasion.
Indeed, the States real motivation can be gleaned from the questions asked on
cross-examination. It is apparent the States strategy was to place before the jury
the details of Olivers previous conviction for the sole purpose of creating the
forbidden inference, namely: prior wrongful conduct suggests present guilt. See Byers v.
State, 709 N.E.2d 1024, 1026-27 (Ind. 1999) (commenting that Indiana Evidence Rule 404(b)
is designed to prevent the jury from making the forbidden inference). However,
Oliver has demonstrated no harm. The record shows that Olivers counsel objected
to each question posed by the State concerning the details of the robbery
conviction. The trial court sustained the objections for all questions not relating
to Olivers use of force and ordered the questions stricken from the record.
There is a presumption the jury followed the trial courts admonition and
that the States improper questioning played no part in the jurys deliberation.
See Heavrin v. State, 675 N.E.2d 1075, 1084 (Ind. 1996). As for
the use of force, Oliver denied the States major premise, namely: that
he held down the victim of the robbery with his right hand while
wielding a knife with his left hand. And the State offered no
evidence in rebuttal on this point. In the end, the State was
left with Oliver merely admitting on cross-examination that the robbery involved a struggle
and a knife. This can hardly be described as damaging evidence.
Trial courts possess broad discretion in ruling on the admissibility of evidence,
and we reverse only for abuse of that discretion. Appleton v. State,
740 N.E.2d 122, 124 (Ind. 2001); Bacher v. State, 686 N.E.2d 791, 795
(Ind. 1997). We find no abuse of discretion here.
Oliver next contends the trial court erred by admitting into evidence an autopsy
photograph that depicted Mr. Kimes chest wound measured by a two-inch ruler.
He complains the photograph was not critical to the States case inasmuch as
[defense] counsel admitted in his opening remarks that his client stabbed the victim
and he died as a result. Br. of Appellant at 11.
Oliver acknowledges that existing case authority permits the introduction of evidence on an
issue which one party unilaterally concedes or offers to stipulate. See, e.g.,
Butler v. State, 647 N.E.2d 631, 634 (Ind. 1995) (finding autopsy photographs admissible
even though defense counsel admitted in his opening statement that the defendant stabbed
the victims and they died as a result). Nevertheless, citing no authority
on the point and making no cogent argument in support, Oliver asks this
Court to reconsider the law. Br. of Appellant at 11. We
Oliver next contends the evidence is insufficient to sustain his murder conviction.
When reviewing a claim of insufficient evidence, we consider only the evidence that
supports the verdict and draw all reasonable inferences therefrom. Johnson v. State,
743 N.E.2d 755, 757 (Ind. 2001). We do not reweigh the evidence
or judge the credibility of the witnesses. Id. We uphold a
conviction if there is substantial evidence of probative value
from which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Id.
The State charged Oliver with murder for the knowing killing of Mr. Kime.
A person engages in conduct knowingly if, when he engages in the
conduct, he is aware of a high probability that he is doing so.
I.C. § 35-41-2-2(b). A knowing killing may be inferred from the
use of a deadly weapon in a manner likely to cause death.
Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001), rehg denied. The
evidence shows that Oliver stabbed Mr. Kime three times, one of which penetrated
his sternum and aorta with a lot of force. R. at 462.
Apparently acknowledging the strength of this evidence, Oliver claims he never intended
to kill Donald Kime and [t]he jury should have accepted his statement.
Br. of Appellant at 13. The jury did not accept Olivers statement
on this point, nor was it bound to do so. The evidence
is sufficient to sustain the conviction. We find no error on this issue.
For his final allegation of error, Oliver contends the trial court erred by
admitting into evidence a record of a prior conviction during the habitual offender
phase of trial because it was not properly certified. The record shows
the State introduced an exhibit detailing Olivers conviction and sentence for a prior
felony offense committed in the State of Missouri. The exhibit consisted of
six pages and contained a certification on the first page made by the
Corrections Records Manager of the Fulton, Missouri Reception and Diagnostic Center. Oliver
argues that the certification on the first page of the exhibit without reference
to the total number of pages actually certified is an insufficient authentication of
the multi-paged exhibit.
We confronted a similar claim in Hernandez v. State, 716 N.E.2d 948 (Ind.
1999), rehg denied. The challenged exhibits in that case consisted of a
two-page probable cause affidavit containing a certification stamp and signature of the clerk
on the first page only and a three-page sentencing order containing a certification
stamp and signature of the clerk on the last page only. In
each exhibit, the clerk left blank a part of the stamp providing for
the total number of pages being certified. Our review of the exhibits
revealed that each was a complete, individual document. We concluded [t]he certification
on a single page of either challenged exhibit provided adequate certification for the
entirety of each exhibit as the certification placement in no way caus[ed] confusion
as to the authenticity of the paper. Id. at 952 (quoting Chanley
v. State, 583 N.E.2d 126, 131 (Ind. 1991)).
The same is true here. Olivers name and inmate number is listed
on the first four pages of the six-page exhibit. Additionally, his name
is listed on the fifth page and his inmate number is listed on
the last page. The trial court properly admitted the exhibit into evidence.
See Kidd v. State, 738 N.E.2d 1039, 1043-44 (Ind. 2000) (finding the
trial court did not err in admitting a multi-paged exhibit that contained a
certification on the last page only because several pages of the exhibit contained
the same cause number), rehg denied. We find no error.
We affirm the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.