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01/12/88 GARY MUELLER v. STATE INDIANA

Filed: January 12, 1988.

GARY MUELLER, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION, ROOM NO. 3, The Honorable John R. Barney, Jr., Judge, Cause No. CR84-211C.

Givan, J., Shepard, C.j., DeBruler and Pivarnik, JJ., concur. Dickson, J., Concurs in result without separate opinion.

Author: Givan

GIVAN, J.

A jury trial resulted in a verdict of guilty of First Degree Murder and guilty of Murder While in the Perpetration of a Robbery. The trial Judge entered judgment on both charges; however, the sentence was fifty (50) years for Murder While in the Perpetration of a Robbery. The commitment issued to the Department of Correction shows appellant was convicted of Murder, a Class A felony, and Felony Murder. However, it reflects that he was sentenced only on the Felony Murder count. The cause is remanded to the trial court for proper judgment. The trial court is in all other things affirmed.

The facts are: For approximately five (5) years before the instant crime, appellant had been hitchhiking around the country. On October 20, 1984, he hitchhiked to Indianapolis and stayed a few days with a girl friend who lived on South Pennsylvania Avenue. On October 24, 1984, he was hitchhiking out of Indianapolis and was picked up by Louis Polk, the victim in this case. Polk took appellant to a tavern where Polk was known by the bartender. At the tavern, they consumed beer and pizza which was purchased by Polk. They went to another bar where they drank more beer. They then went to Polk's home where they watched television and drank mixed drinks. Sometime during the evening appellant struck Polk on the head with a 1.75 liter liquor bottle. The blow crushed Polk's skull to the extent that a portion of the bone penetrated his brain. When Polk's body was discovered, his house had been ransacked, the telephone wires had been cut, and his GMC truck was missing.

Appellant's version of the incident was that Polk made homosexual advances to him and that he "tapped" Polk on the head to defend himself. Later that evening appellant was arrested for driving under the influence in Polk's GMC truck. He spent the rest of the night in the Marion County Jail. He explained the blood on his shoes by stating that he had had a nose bleed, and he explained his possession of the truck by saying that he was running an errand for his quadriplegic roommate at the time he was stopped.

He was released on his own recognizance the next morning and retrieved the truck by paying the towing charge. He left a note with his girl friend, Michelle Thomas, stating that he was driving the truck to Colorado for another person. He then drove to the State of Washington and then to California where he was arrested. He was still driving Polk's truck and was still in possession of Polk's Texaco credit card which he had used on the trip to buy food and gasoline. He also was still wearing the bloodstained tennis shoes. The blood on the tennis shoes was shown to be the same type as the blood of the victim.

Appellant claims the trial court erred in admitting State's Exhibit No. 12, a color photograph of the victim's face. Appellant claims that, although the State introduced the photograph for the purpose of identifying the victim, the victim had been identified by other means and the photograph was thus repetitious and introduced solely to arouse the passion of and prejudice of the jury.

An autopsy was performed on the victim by Dr. Holly, who testified at the trial. State's Exhibit No. 12 was used by Dr. Holly to identify the person upon whom he performed the autopsy. The fact that a photograph is gruesome or revolting does not necessarily make it inadmissible. The trial Judge may determine the relevancy of a photograph by determining whether or not a Witness would be permitted to describe verbally the scene depicted in the photograph. Drollinger v. State (1980), 274 Ind. 5, 408 N.E.2d 1228.

In the case at bar, Dr. Holly used the photograph for identification purposes. The photograph clearly depicted facts described by him in his testimony. There was no error in admitting State's Exhibit No. 12.

Appellant claims the trial court erred in admitting State's Exhibit No. 2, an array of photographs, which were police "mug shots" that had been prepared for trial by the State by covering up all identification markings on the photographs. It is true that generally "mug shots" are inadmissible because they infer that a defendant has a prior criminal record. Head v. State (1982), Ind., 443 N.E.2d 44. However, in the case at bar, the State had carefully prepared the photographs so as to obscure the police information thereon.

Appellant argues that the photographs obviously had a portion covered up which would be a clue to the jury that they were in fact "mug shots"; this procedure, however, has been found to be acceptable by this Court. See Walker v. State (1984), Ind., 471 N.E.2d 1089. There was nothing visible to the jury in State's Exhibit No. 2 that would inform them of a prior criminal record of appellant. The trial court did not err in admitting the exhibit into evidence.

Appellant claims the trial court erred in admitting State's Exhibit No. 65 into evidence. The exhibit was a handwritten note purportedly sent by appellant to his girl friend, witness Michelle Thomas. The note gave Thomas appellant's Tacoma, Washington address and stated: "If I'm not at that address, I'll be in jail in Tacoma. I won't be there for about 11 days[.] I do love you."

Appellant objected to the note on the grounds it was irrelevant and immaterial and argues that the use of the word "jail" in the note could have led the jury to believe that appellant had a criminal history. The State argues that the note was admissible because it showed appellant's intent to flee the jurisdiction after the commission of the crime, and further that the note as used as a handwriting exemplar to identify a known sample of appellant's handwriting with the handwriting on the credit card receipts signed by appellant as he travelled across the United States. The State further argues that the fact the note referred to "jail" could just have easily referred to appellant's expectation of being arrested on the instant crime ...


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