ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER JEFFREY A. MODISETT
Public Defender of Indiana Attorney General of Indiana
GREGORY L. LEWIS ROSEMARY L. BOREK
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
SUPREME COURT OF INDIANA
ROBERT TURBEN, )
) Supreme Court Cause Number
v. ) 13S00-9810-CR-603
STATE OF INDIANA, )
APPEAL FROM THE CRAWFORD CIRCUIT COURT
The Honorable Kenneth Lynn Lopp, Judge
Cause No. 13C01-9711-CF-026
ON DIRECT APPEAL
April 19, 2000
A jury convicted Robert Turben of murder in the death of his wife.
The trial court sentenced him to sixty-five years imprisonment. In this
direct appeal Turben contends his conviction should be reversed because the trial court
erred by admitting an autopsy photograph into evidence. We agree the trial
court erred. However the error was harmless and we therefore affirm.
The record shows that Turben and his wife Jenny had a turbulent marriage,
separating and reuniting several times. In October 1997, Jenny and the parties
three minor children moved out of the marital home and began living with
a relative. Deciding that she would tell Turben of her plans to
file for divorce, Jenny took the children to the marital residence for dinner
on November 3, 1997. Later that evening, Turben returned the children to
the home of Jennys relative. Asked about Jenny, Turben explained that the couple
had engaged in an argument and that Jenny had left the house walking.
Friends and relatives began searching for Jenny and alerted the police that
she was missing. The following day police questioned Turben about Jennys disappearance.
Although first claiming Jenny left the house alone after an argument the
previous night, Turben ultimately admitted that he had strangled Jenny with a cord.
He then accompanied officers to a cave in the Harrison Crawford Forestry
where Jennys body was discovered in a black canvas bag beneath a pile
of rocks. The cord was still around her neck.
Turben was charged with murder and in due course the case was tried
to a jury. In its case in chief the State called pathologist
George Nichols who testified that he had performed an autopsy on Jenny and
concluded that she died from strangulation. Specifically, the pathologist testified that the
cord cut off the supply of oxygenated blood to Jennys brain and caused
unconsciousness and irreversible brain damage, resulting in death. To accompany the pathologists
testimony, the State sought to introduce several photographs taken during the autopsy.
One of the photographs showed gloved hands manipulating a bloody mass with a
probe. The mass purportedly represented the victims head with the skin and
bones cut open and peeled back to expose the interior of the victims
neck. Over Turbens objection the photograph was introduced into evidence. The
jury convicted Turben as charged and the court sentenced him to sixty-five years
imprisonment. This direct appeal followed.
Turben contends the trial court erred by admitting the autopsy photograph into evidence
because its prejudicial impact on the jury outweighed its probative value. We
review the trial courts admission of photographic evidence for an abuse of discretion.
Byers v. State, 709 N.E.2d 1024, 1028 (Ind. 1998). Photographs that
depict a victims injuries are generally relevant and thus admissible. Harrison v.
State, 699 N.E.2d 645, 648 (Ind. 1998). The relevancy requirement also can
be met if the photographs demonstrate or illustrate a witness testimony. Id.
However, relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice[.] Ind.Evidence Rule 403.
In this case the State seems to acknowledge the photograph is graphic.
However, the State contends the photograph is relevant because it illustrates the pathologists
testimony concerning the cause of death, namely, strangulation. Assuming the photograph here
is relevant, it is only marginally so. Our review of the record
shows a bloody mass that barely resembles a human form. We doubt
the jury was further enlightened concerning the cause of death by viewing this
gruesome spectacle. This court has long held that photographs of a deceased
victim during and after an autopsy is performed may be held inadmissible on
grounds that they serve no purpose other than to arouse the emotions of
the jury. Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982).
Indeed autopsy photographs are generally inadmissible if they show the body in an
altered condition. Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997), cert.
denied, 525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667. This is
so because such a display may impute the handiwork of the physician to
the accused assailant and thereby render the defendant responsible in the minds of
the juror for the cuts, incisions, and indignity of an autopsy." Loy,
436 N.E.2d at 1128; see also, Warrenburg v. State, 260 Ind. 572, 574,
298 N.E.2d 434, 435 (1973) (error to admit autopsy photograph which showed a
partially resewn corpse, nude from the waist up, with the right arm of
the corpse severed completely and the left arm re-attached with gaping sutures); Kiefer
v. State, 239 Ind. 103, 112, 153 N.E.2d 899, 903 (1958) (reversible error
to admit autopsy photographs showing hands and instruments of surgeon inside chest of
victim). Given the gruesomeness of the photograph in this case, along with
its marginal relevance, we conclude the photographs prejudicial impact outweighed its probative value.
Accordingly, the trial court erred by admitting the photograph into evidence.
However, not every trial error requires reversal. Errors in the admission or
exclusion of evidence are to be disregarded as harmless error unless they affect
the substantial rights of the party. Fleener v. State, 656 N.E.2d 1140,
1141 (Ind. 1995); Ind.Trial Rule 61. To determine whether an error in
the introduction of evidence affected the appellant's substantial
rights, this Court must assess the probable impact of that evidence upon the
jury. Alva v. State, 605 N.E.2d 169, 171 (Ind. 1993).
Turben contends his defense at trial was that he killed his wife in
a sudden heat of passion. He argues the inflammatory photograph unfairly influenced
the jury to reject his defense and thus the jury returned a verdict
of murder rather than voluntary manslaughter. Sudden heat is an evidentiary predicate
that allows mitigation of a murder charge to voluntary manslaughter. Bane v.
State, 587 N.E.2d 97, 100 (Ind. 1992). It is characterized as anger,
rage, resentment, or terror sufficient to obscure the reason of an ordinary person,
preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool
reflection. Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998).
In support of his sudden heat contention Turben introduced evidence of his stormy
marriage and facts supporting the claim that he and his wife frequently fought
and argued. He also called as a witness a clinical psychologist who
testified that Turben suffered an explosive mood disorder. According to the psychologist,
Turben told him that on the night of the murder he and his
wife argued, she threw a baby bottle at him and he responded by
hitting her in the face. Turben told the psychologist he could not
remember what happened next, but shortly thereafter discovered that his wife was dead.
R. at 1320. The psychologist acknowledged that even in past highly
charged situations Turben has tended to walk away. R. at 1328.
He also acknowledged that Turben could have controlled his behavior, . . .
he had learned to do that before. R. at 1324.
We first observe that words alone are not sufficient provocation to precipitate sudden
heat for purposes of determining whether a killing constitutes voluntary manslaughter as opposed
to murder. Gregory v. State, 540 N.E.2d 585, 593 (Ind. 1989).
Thus, to the extent Turben claims that he was provoked because his wife
told him she was obtaining a divorce and that she engaged in other
verbal harangues does not support his sudden heat contention. Nor was the
jury bound to be persuaded that Turben being hit with a baby bottle
combined with his emotional disorder provided sufficient provocation for a voluntary manslaughter conviction.
A stressful encounter does not inflame sudden heat sufficient to mitigate murder
to voluntary manslaughter simply because a defendant suffers from a psychological disorder which
gives him a hair trigger. Wilson v. State, 697 N.E.2d at 474.
The record before us shows not only that Turben and his wife had
frequently fought and argued, which did not result in death, but also that
Turben could control his behavior and in the past had simply walked away
from highly stressful situations. Further, there was evidence before the jury that
Turben threatened to kill his wife a week before the fatal night when
she had once again moved out of the marital home. There was
also testimony that Turben had told a friend that the shotgun shells in
his truck were intended for his wife if she ever decided to leave
him. In sum, the absence of substantial evidence of sudden heat convinces
us that there was no serious issue of whether the defendant committed murder
or voluntary manslaughter. We are convinced that the prejudice resulting from the
erroneously admitted photograph did not cause or significantly contribute to the jurys rejection
of voluntary manslaughter. We find that the error in admission of the
photograph did not affect the substantial rights of the defendant. Accordingly, although
the trial court erred by admitting the photograph, the error was harmless.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.