ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jessie A. Cook Jeffrey A. Modisett
Terre Haute, Indiana Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
SUPREME COURT OF INDIANA
HERSCHEL SPENCER, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 84S00-9704-CR-280 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )Cause No. 84D01-9603-CF-0081
APPEAL FROM THE VIGO SUPERIOR COURT The Honorable Michael H. Eldred, Judge
SHEPARD, Chief Justice.
A jury found appellant Herschel Spencer guilty of murdering
Tammy Carlyle. Spencer was sentenced to sixty-five years in
II. Whether the court erred by admitting Carlyle's prior
statements regarding her fear of Spencer;
III. Whether the court erred by admitting three autopsy
IV. Whether the
court erred by giving a final instruction
about the batteries.
On several occasions, Carlyle spoke of fear that Spencer would harm her, including an incident in which she reported Spencer told her she "needed to be dead," but that "a bullet was too good for"
her and that she "just needed to be tortured." (R. at 1134-35.)
Carlyle also spoke of a second incident in which Spencer threatened
to kill her and her sister and "bury them under a board." (R. at
882.) Days before Carlyle's body was discovered, the police were
called to Carlyle's home because Spencer had tackled her and
attempted to choke her, but Carlyle reported to the investigators
that she could not report the crime because Spencer had threatened
to kill her and bury her under a board.
Upon a report that Carlyle was missing, the Terre Haute Police
commenced a search and discovered her body buried in a shallow
wooded area called the Jungle. Carlyle's body was in an advanced
stage of decomposition. A later autopsy revealed that the cause of
Carlyle's death was consistent with manual strangulation. One
witness testified at trial that she observed Spencer in the Jungle,
near the spot where Carlyle's body was found, with dirt on his
hands, shirt, and pants. Spencer's neighbor reported that Spencer
had asked him for a shovel near the time of Carlyle's murder.
Spencer asked another person to provide him with an alibi for the
night Carlyle was murdered. Finally, Spencer admitted to a
cellmate that he had killed Carlyle by means of strangulation and
buried her body in a shallow grave in the Jungle.
Admission of evidence about prior bad acts is restrained by
Indiana Rule of Evidence 404(b), which states in relevant part:
"Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . . . ."
Such evidence is also subject to Evidence Rules 401 and 403, which
provide that such evidence must be relevant and its probative value
must not be substantially outweighed by the danger of unfair
prejudice to the defendant.
We review admissibility of prior bad acts under the test of Hicks v. State, 690 N.E.2d 215 (Ind. 1997).See footnote 1 The Hicks test states
that "the standard for assessing the admissibility of 404(b)
evidence in Indiana is: (1) the court must determine that the
evidence of other crimes, wrongs, or acts is relevant to a matter
at issue other than the defendant's propensity to commit the
charged act; and (2) the court must balance the probative value of
the evidence against its prejudicial effect pursuant to Rule 403."
Id. at 221.
The State alleges that the prior bad acts were offered to show
Spencer's motive and his identity, both of which are proper
purposes under Rule 404(b). We agree. This Court has held that
where a relationship between parties is characterized by frequent
conflict, evidence of the defendant's prior assaults and
confrontations with the victim may be admitted to show the
relationship between the parties and motive for committing the
crime--"hostility." Id. at 222; see also McEwen v. State, 695
N.E.2d 79 (Ind. 1988).
In this case, the prior batteries are probative of the
relationship between Spencer and Carlyle and his hostility toward
her because the batteries were committed against her. The record
of batteries shows a pattern of conflict pointing to the motive of
hostility, thereby passing the first prong of the Hicks test.
Second, the evidence may be excluded if the prejudicial impact outweighs its probative value. Hicks, 690 N.E.2d at 223;
Ind.Evidence Rule 403.
Evidence of prior bad acts speaking to the
identity of the killer is highly probative, as in this case where
the identity of the killer was the main item of contention.
The probative value of the evidence may lose force, however,
if too much time has elapsed between the prior acts and the crime
charged. We have upheld the admission of a prior incident that
occurred only three months before the killing because it retained
its probative force, but we have also noted that evidence of an
assault on a victim that took place more than three years before
the charged crime was of "low probative value." McEwen, 695 N.E.2d
at 88. In the case at bar, two of the three incidents admitted
happened three years before the murder. The length of time between
the charged crime and those two acts is too long, diminishing the
probative value of the evidence. On the other hand, the remaining
report of battery by attempted strangulation occurred only two
years prior to the murder and has a higher probative value.See footnote
We are inclined to think this evidence should not have been
admitted, but cannot say that the trial court abused its
discretion. Moreover, the other evidence presented was
sufficiently compelling that admission of this evidence did not
deprive Spencer of his substantial rights. Ind.Trial Rule 61.
The State claims that the police officers' account of what the victim had said to them was not hearsay because it was not offered to show the truth of the matter asserted but instead to show the steps the investigating officer took.See footnote 3 We have held that admission of a victim's statements through the testimony of a police officer was improper when the sole purpose was claimed to be showing the steps in the investigative process. Owens v. State, 659 N.E.2d 466, 476 (Ind. 1996) ("The trial court could have limited [the officer's] testimony to the fact that he took certain steps in
response to what [the victim] had told him."). While the State may
offer testimony to show the steps of an investigation, the
testimony of the officers should be limited to that specific
purpose. Id. Because the statements made by the police in this
case were used only to prove the truth of the matter asserted, they
While Spencer's hearsay contentions have merit, whether they
warrant reversal is another matter. In light of his presence near
the victim's burial site, his request to borrow a shovel, his plea
for a fabricated alibi, and his admissions to a cellmate, the
hearsay error does not warrant a reversal of Spencer's conviction.
to the issues in contention.
Relevant evidence may be excluded only if its probative value
is substantially outweighed by the danger of unfair prejudice.
Evid.R. 403. Photographs, even ones gruesome in nature, are
admissible if they act as interpretative aids for the jury and have
strong probative value. Robinson v. State, 693 N.E.2d 548 (Ind.
Finally, admission and exclusion of evidence is reviewed on
appeal only for an abuse of discretion. Isaacs v. State, 659
N.E.2d 1036 (Ind. 1995).
Spencer argues that Exhibits 21 and 22, photographs of the victim after the body had been partially cleaned and moved from the original gravesite, should have been excluded because the photographs did not depict the victim in her natural state after death. This fact was apparent at trial and there was little reason to think that the jury was misled about it. The State responds that the post-mortem avulsion laceration on the victim's face visible in Exhibit 21 supported its theory that the victim was killed in another location and then moved. This seems a satisfactory basis for the trial court's ruling.
Less satisfactory is the State's argument for admitting Exhibit 22, a photograph of the victim's body on the autopsy table showing the right arm missing. The State says this illustrated the condition of the body when it was found. This does not seem
probative of any fact at issue.
Spencer argues that Exhibit 23, which depicts a scar on the victim's chest, was irrelevant because it shows a scar caused by an injury that occurred several years before the victim's death. The State contends the scar helped the coroner identify the victim. Spencer counters that identification of the victim was not at issue,See footnote 4 and therefore evidence purporting to prove identity is irrelevant and cumulative. Still, as the photograph does display a unique marking of the victim, it did aid in identification of the body; Exhibit 23 was relevant and probative. Spencer has not persuaded us that its admission constituted unfair prejudice.
Collectively, the admission of these three photographs was
within the range of discretion available to the trial court.
only as evidence of Spencer's state of mind or the nature of the
relationship between Spencer and Carlyle.See footnote
The court's final
instructions allowed the jury to consider evidence of prior
batteries as proof of Spencer's idenity as the killer or his
Spencer again argues that the evidence may not be considered
as proof of identity because insufficient similarities exist
between the murder and the previous crimes. He further alleges
that because the jury was invited to consider the prior convictions
as proof of identity, the instructions misstate the law and
constitute reversable error.
Instructing the jury is largely within the court's discretion and such discretion is abused only when the instructions misstate
the law or mislead the jury. Nichols v. State, 591 N.E.2d 134
(Ind. 1992). As discussed in Section One, both motive and identity
are proper purposes for the admission of evidence of other crimes,
wrongs, or acts. The jury was therefore properly instructed.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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