ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David M. Henn Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
LAVELLE MALONE, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 49S00-9712-CR-678 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )Cause No. 49G04-9606-CF-089351
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Nancy L. Broyles, Judge Pro Tem
Appellant Lavelle Malone was convicted of murder, Ind. Code
§ 35-42-1-1, and carrying a handgun without a license, a class C felony, Ind. Code § 35-47-2-1. He was also found to be a habitual
offender, Ind. Code § 35-50-2-8. The trial court imposed the
presumptive sentence for murder, fifty-five years, and added thirty
years for the habitual offender finding. It imposed a concurrent
eight-year sentence for the handgun.
Malone's counsel, David M. Henn, has prepared an excellent
brief on his behalf in which he raises five issues:
1. Whether the foundation was adequate to admit various items of physical evidence;
2. Whether prosecutorial misconduct induced the trial
court to admit certain evidence;
3. Whether it was error to admit two photographs of the
4. Whether Malone's demand for the regular trial judge
instead of the judge pro tempore should have been
5. Whether the court erred by admitting the prior
statement of a witness.
Factual Background and Procedural History
Clifton Avenue. At the scene, witnesses saw Malone and Hollonquest
standing outside the car, apparently arguing. Malone fired one
shot at Hollonquest, and then cradled him in an attempt to stop the
bleeding. Finally, Malone re-entered the station wagon and left
After the shooting, the police learned that Malone may have
been at the home of his girlfriend, Diane Kelly. He occasionally
stayed overnight at Kelly's home during the month before the
murder, and was there on the day of the crime. Upon execution of
a search warrant for Kelly's home, the police discovered six live
.38 caliber lead bullets in a dresser drawer. Kelly neither owned
a gun, nor knew how the bullets ended up in her home. The bullets
were admitted at trial.
The police also collected blood samples from the sidewalk
where the victim was shot, the victim's body, the defendant, and
the station wagon that the defendant drove. Those samples were
also admitted into evidence.
The State planned to present the testimony of a DNA expert, but it misrepresented the witness's unavailability, thereby causing the court to order an otherwise unnecessary recess. While the testimony was not excluded as a sanction for the misrepresentation, it was excluded on another basis.
Finally, the State entered into evidence two photographs of
the wound, one a close view, and the other a view of the victim's
upper body. The latter picture also depicted an incision made by
medical personnel at the hospital.
Judge Patricia Gifford heard a motion in limine, but appointed Master Commissioner Nancy Broyles as judge pro tempore for the day of trial. Master Commissioner Broyles ruled on the admissibility of all the evidence described above.
A foundation for physical evidence is established where (1) a witness can testify that the exhibit is "like" an item associated
with the crime, and (2) there is a showing that the exhibit is
connected to the defendant and the commission of the crime. Evans
v. State, 643 N.E.2d 877, 881 (Ind. 1994). Malone challenges the
bullet and blood exhibits by claiming they are unconnected to the
defendant and the crime.
To be properly admissible, real evidence need only constitute
"a small but legitimate link in the chain" of evidence connecting
the defendant with the crime. Andrews v. State, 532 N.E.2d 1159,
1163 (Ind. 1989). A trial court may properly admit evidence "even
where there is only a slight tendency to connect the defendant with
the offense." Sons v. State, 502 N.E.2d 1331, 1332 (Ind. 1987).
Here, the bullet and blood exhibits were properly admitted because
they legitimately tend to connect the defendant with the crime by
way of reasonable inferences. See Samaniego v. State, 553 N.E.2d
120, 124 (Ind. 1990); Underwood v. State, 535 N.E.2d 507, 517
As for the .38 caliber bullets found at the home of Malone's girlfriend, the State demonstrated that the victim was killed with a .38 caliber bullet. Malone's girlfriend testified that he stayed at her home during the month of the murder, and that he was at her home on the day of the crime. She further testified that she did not own a gun or know from where the bullets came. The bullets were properly admitted because their caliber and location create a reasonable inference that Malone stored .38 caliber bullets at his
girlfriend's house and then used some of them to load the gun with
which he killed the victim.
Malone does not specify which of the five blood exhibits he
thinks were wrongly admitted. The State offered samples of blood
from the sidewalk where the victim's body was found, the victim's
body, Malone, and the station wagon that Malone drove near the time
of the murder. All of these exhibits, however, were admissible as
corroboration of the events constituting the crime: that Malone
was at the scene, committed the murder, tried to stop the victim's
bleeding, then drove away in the station wagon. See Underwood, 535
N.E.2d 517 (court properly admitted photographs that corroborated
testimony of the sequence of events that constituted the crime).
The blood exhibits were properly admitted.
This Court has set out a two part test for reviewing prosecutorial misconduct claims. We consider first whether the prosecutor committed misconduct and second whether the alleged misconduct placed the defendant in a position of grave peril.
Robinson v. State, 693 N.E.2d 548, 551 (Ind. 1998). "'The gravity
of the peril is determined by considering the probable persuasive
effect of the misconduct on the jury's decision, rather than the
degree of the impropriety of the conduct.'" Id. (quoting
Willoughby v. State, 660 N.E.2d 570, 582 (Ind. 1996).
The State apparently misrepresented to the trial court that
its DNA expert was unavailable until late in the week, causing the
court to permit a recess until the witness became available. It is
unclear whether the trial court found that this misrepresentation
amounted to prosecutorial misconduct. (Compare R. at 789 (where
the court called the State's action prosecutorial misconduct) with
R. at 939 (where the court commented that the action was not
misconduct).) In any event, the trial court refused to exclude the
testimony of the DNA expert on that ground, (R. at 789), but rather
excluded the testimony on another basis.See footnote 1
The DNA testimony could not have had any persuasive effect on the jury, because the jury was never allowed to hear it. Malone claims, however, that the prosecutor's misrepresentation prompted the court to admit other "blood evidence" on the basis that its connection to the defendant and to the crime would be established once the DNA evidence was admitted. As discussed above, the blood exhibits were properly admissible of their own accord, and they did
not require the DNA testimony to establish their foundation or make
them relevant. Therefore, the misrepresentation had no improper
effect on the jury's decision, and did not place Malone in grave
Autopsy photographs are admissible if (1) they provide
relevant evidence, and (2) their probative value is not
substantially outweighed by their tendency to impassion the jury
against the defendant. Edgecomb v. State, 673 N.E.2d 1185, 1196
(Ind. 1996), reh'g denied. Use of the photograph to illustrate the
pathologist's testimony satisfies the initial relevancy
requirement. See Harrison v. State, 644 N.E.2d 1243, 1256 (Ind.
1995); Ind.Evidence Rule 401 (relevant evidence is evidence having
any tendency to make the existence of a fact of consequence more or
less likely). The question then becomes one of balancing probative
value against prejudicial effect, and a trial court's ruling on
this issue will not be disturbed absent an abuse of discretion.
Robinson v. State, 693 N.E.2d 548 (Ind. 1998).
Malone also claims that the photograph is cumulative, because
another photograph, admitted without objection, depicted the wound.
We note that the photographs are different. The undisputed
photograph, State's Exhibit 49, depicts a close view of the wound,
while the disputed photo, State's Exhibit 48, depicts the victim's
upper body, giving a perspective on the location of the wound on
the body. The photographs are not really cumulative, and they are
not the stuff of reversible error.
Malone has made no argument, either at trial or on appeal, that Master Commissioner Broyles failed to satisfy the requirements
for appointment of a pro tem set out in Indiana Trial Rule 63(C) or
Instead, Malone cites a sentence in Rogers v. State in support
of his contention that, in addition to the requirements of Rule 63,
a specified level of "familiarity" is required of judges pro tem.
570 N.E.2d 906, 908 (Ind. 1991) ("In addition, [the judge pro tem]
was familiar with the case in that he heard the evidence at the
post-conviction hearing."). That statement in Rogers was meant to
suggest why the particular pro tem had been an appropriate choice;
it was not intended to prescribe a requisite level of preparation
for or understanding of a case. While the outer boundary of due
process may require that a judge be "duly advised in the premises,"
the evidentiary arguments presented to the pro tem were such that
the line was certainly not crossed here. Master Commissioner
Broyles properly presided over Malone's trial.
witness thereon" effectively, citing the requirements of Evidence
On appeal, Malone argues that Ms. Adams' prior statements were
A party may not object on one ground at trial and seek
reversal on appeal using a different ground. See Grinstead v.
State, 684 N.E.2d 482, 486 n.6. The issue is waived. Id.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Converted by Andrew Scriven