Attorney for Appellant Attorneys for Appellee
Michael C. Keating Steve Carter
Keating, Bumb, Vowels, Laplante & Kent, P.C. Attorney General
Michael Gene Worden
Deputy Attorney General
Appeal from the Pike Circuit Court, No. 63C01-0104-CF-231
The Honorable Lee F. Baker, Judge
On Direct Appeal
May 25, 2004
The defendant, Christopher M. Helsley, was convicted of two counts of murder for
the deaths of Marsha Rainey and Brad Maxwell in Pike County, Indiana, and
sentenced to life without parole. In this direct appeal, the defendant claims
various errors, which we regroup as follows: (1) admission of evidence from unlawful
searches of his vehicle and residence; (2) admission of cumulative and inflammatory photographs;
(3) unconstitutional ex post facto application of the penalty statute amendment; and (4)
misleading sentence modification instruction. We affirm his convictions and sentence.
Based on these facts presented to the trial court and the rational and
reasonable inferences drawn from them, there was a sufficient basis to allow a
reasonable person to conclude that a search of the defendant's vehicle and his
residence would uncover evidence of a crime. The search warrant was supported
by adequate probable cause.
The State responds that the photographs were relevant to the identity of the
victims, the cause of death, and the manner in which the crimes were
committed. Moreover, it argues that the photographs were not cumulative because they
provided detail the video could not. The State also argues that because
the jury viewed several photographs depicting the victims from both before and after
the autopsy, it was clear in the three post-autopsy photographs with some of
the victims' hair shaved (to permit better viewing of the wounds by the
pathologist and the jurors) that the shaving was done by the pathologist, not
The admission of photographic evidence is within the sound discretion of the trial
court, and this Court reviews the admission of photographic evidence only for abuse
of discretion. Corbett v. State, 764 N.E.2d 622, 627 (Ind. 2002).
Photographs, as with all relevant evidence, may only be excluded if their probative
value is substantially outweighed by the danger of unfair prejudice. Ind. Evidence
Rule 403; Corbett, 764 N.E.2d at 627. Admission of cumulative evidence alone
is insufficient to warrant a new trial. Kubsch v. State, 784 N.E.2d
905, 923 (Ind. 2003). An appellant must establish that the probative value
of the evidence was outweighed by the unfair prejudice flowing from it.
Moreover, "[e]ven gory and revolting photographs may be admissible as long as they
are relevant to some material issue or show scenes that a witness could
describe orally." Corbett, 764 N.E.2d at 627 (quoting Amburgey v. State, 696
N.E.2d 44, 45 (Ind. 1998)). Gruesome and gory photographs with strong probative
value are admissible where they help interpret the facts of the case for
the jury. Corbett, 764 N.E.2d at 627. Autopsy photographs frequently pose
unique problems where the pathologist has manipulated the corpse during the autopsy.
They are generally inadmissible where the body is in an altered condition.
Id. Nevertheless, "there are situations where some alteration of the body is
necessary to demonstrate the testimony being given." Swingley v. State, 739 N.E.2d
132, 133-34 (Ind. 2000). In Corbett, we held that it was not
prejudicial error to admit several autopsy photographs showing the victim's body with the
head wounds cleaned and with some hair shaved away. 764 N.E.2d at
Evaluating whether an exhibit's probative value is substantially outweighed by the danger of
unfair prejudice is a discretionary task best performed by the trial court.
Dunlap v. State, 761 N.E.2d 837, 842 (Ind. 2002). We are not
persuaded that the trial court abused its discretion in admitting the photographs.
The defendant was convicted of murders committed on April 18, 2001. The
charges were filed on April 20, 2001. The guilt phase of the
trial commenced June 14, 2002, resulting in guilty verdicts on June 21, 2002.
The penalty phase began and concluded on June 24, 2002, resulting in
the jury's recommendation of life imprisonment without parole. On that same day,
the trial court ordered the probation department to prepare and file a pre-sentence
investigation report by July 12, 2002, and set sentencing for July 19, 2002.
Appellant's Appendix at 18-19. At the sentencing hearing, the defendant was
sentenced to life imprisonment without parole.
At the time the offenses were committed, Indiana's statute governing the imposition of
life without parole and the death penalty provided that the jury would make
a sentencing recommendation, but that the trial court was assigned the responsibility for
determining the sentence and it was not bound by the jury's recommendation.
Ind. Code § 35-50-2-9 (2001). On March 26, 2002, the legislature amended
the statute "[f]or a defendant sentenced after June 30, 2002," and declared: "If
the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly."
Ind. Code § 35-50-2-9(e).
Thus the offenses were committed before the legislature passed the amendment and the
guilt and penalty phases of the trial occurred after passage but before the
effective date of the amendment. At the penalty phase six days before
the effective date of the statute, however, both preliminary Instruction No. 8 and
final Instruction No. 15 informed the jury that the law requires that the
judge follow the jury's sentencing recommendation. Appellant's Appendix at 442, 459.
The trial court's sentencing occurred three weeks later, after the effective date of
the amendment. At the beginning of the sentencing hearing, the judge announced
that due to "some concern about the ex post facto effect" of the
statutory amendment, he would be treating the jury recommendation as advisory and that
"this is a matter of discretion with me as to the sentence to
be imposed." Transcript vol. 7, p. 60. The defendant's trial counsel immediately
requested a continuance to present mitigation evidence, explaining that because of the court's
jury instruction that the jury's recommendation would be binding, the defense was not
prepared for the presentation of such evidence. The court denied the motion
and proceeded to sentence the defendant to life imprisonment without parole, finding that
the aggravating circumstance was proven beyond a reasonable doubt, finding that mitigating circumstances
were present, evaluating the aggravating and mitigating factors, finding the mitigating factors were
outweighed by the aggravating circumstances,
See footnote considering the re
commendation of the jury, and expressing
"the personal conclusion of this [c]ourt that the jury's sentencing recommendation is appropriate
punishment for this offender and these heinous crimes." Transcript vol. 7, p.
On June 24, 2002, when the penalty phase jury was given preliminary Instruction
No. 8 and final Instruction No. 15, the 2002 penalty statute amendment had
not yet taken effect. Arguing that its retroactive application violated the prohibition
on ex post facto laws, the defendant contends that the instruction "incorrectly informed
them of the law applicable to the case." Br. of App. at
24. But he does not assert any resulting harm from the instruction
itself. If anything, the instruction increased the jury's sense of personal responsibility
regarding the gravity of its decision and thus favored the defendant. See
Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 2646, 86 L.Ed.
2d 231, 247 (1985) (recognizing the extreme importance that "a capital sentencing jury
recognizes the gravity of its task and proceeds with the appropriate awareness of
its 'truly awesome responsibility.'") Thus, even if we assume arguendo that the
instruction was erroneous either because the 2002 amendment was not yet effective on
the date it was given, or because of the defendant's ex post facto
claim, the giving of the instruction did not harm the defendant and therefore
does not compel reversal.
As to the defendant's claim that the trial court improperly denied his motion
for continuance to present mitigating evidence at the trial court's sentencing proceedings, the
defendant cannot prevail unless application of the 2002 amendment is found to violate
the Ex Post Facto Clause. If there is no violation and the
amendment was applicable, the trial court was obligated to impose the life without
parole sentence recommended by the jury and the court's independent sentencing determination was
extraneous. The actual sentencing occurred after the effective date of the statutory
amendment, and the trial court was thus required, upon receiving the jury sentencing
recommendation, to "sentence the defendant accordingly," instead of engaging in the pre-amendment independent
judicial sentencing evaluation and determination. Ind. Code § 35-50-2-9(e). Because the
trial court stated at the time of the penalty phase jury proceedings that
it was required to follow the jury's sentencing recommendation, the defendant was on
notice that such jury proceedings constituted the defendant's opportunity to present evidence of
mitigating circumstances. The defendant therefore suffered no harm by being precluded from
presenting additional mitigating evidence to the trial judge following the return of the
Whether the denial of the defendant's continuance motion precluded his right to present
mitigating evidence to the trial judge at sentencing therefore depends upon resolution of
the defendant's contention that application of the amended penalty statute violated Article I,
§ 10 of the Constitution of the United States, which provides in part:
"No State shall . . . pass any . . . ex post
See footnote Citing
Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443,
27 L.Ed. 506 (1883), the defendant argues that the 2002 amendment to the
penalty statute is an ex post facto law because it was passed after
the crimes were committed and deprived him of consideration by the trial judge
for the possible imposition of a sentence less severe than that recommended by
his jury consideration to which he would have entitled under the penalty
statute before the 2002 amendment.
In Kring, the defendant challenged a provision in the Missouri Constitution that took
effect after the charged murder, and that abrogated prior Missouri law under which
Kring's previously accepted plea of guilty to second degree murder precluded his being
retried for first degree murder. According to the Supreme Court, the question
was whether the new state constitutional provision "deprive[d] the defendant of any right
of defense which the law gave him when the act was committed, so
that as to that offense it [was] ex post facto." Kring, 107
U.S. at 225, 2 S.Ct. at 447, 27 L.Ed. at 507. The
Court reversed a defendant's death sentence on grounds that it was imposed under
an ex post facto law, and stated:
We are of [the] opinion that any law passed after the commission of an offense which . . . in relation to that offense, or its consequences, alters the situation of a party to his disadvantage, is an ex post facto law; and . . . [n]o one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.
107 U.S. at 235, 2 S.Ct. at 455, 27 L.Ed. at 511 (internal
quotations and citations omitted, emphasis added).
In 1990, however, the Supreme Court expressly overruled Kring, declaring that its "alters
the situation of a party to his disadvantage" language "departs from the meaning
of the Clause as it was understood at the time of the adoption
of the Constitution." Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct.
2715, 2723, 111 L.Ed.2d 30, 44 (1990). Even before Youngblood, various opinions
of the Supreme Court had declined to find an ex post facto violation
in statutes that arguably altered "the situation of a party to his disadvantage."
For example, in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68,
70 L.Ed. 216 (1925), the Court refused to reverse an embezzlement conviction where
the joint defendants' motions for separate trials was denied based on an Ohio
statute that made the granting of separate trials discretionary. Enacted after the
date of the charged offense, this statute amended prior law under which Beazell
would have been entitled to a separate trial as a matter of right.
Rejecting a claim of ex post facto, the Court stated: "[I]t is
now well settled that statutory changes in the mode of trial or the
rules of evidence, which do not deprive the accused of a defense and
which operate only in a limited and unsubstantial manner to his disadvantage, are
not prohibited." 269 U.S. at 170, 46 S.Ct. at 69, 70 L.Ed.
at 218. The Court explained:
Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.
U.S. at 171, 46 S.Ct. at 69, 70 L.Ed. at 218 (citations omitted).
Of particular significance is Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290,
53 L.Ed 2d 344 (1977), in which the United States Supreme Court faced
an ex post facto claim that addressed a change in the function of
judge and jury in the imposition of death sentences in Florida between the
time of the charged acts and the time of trial. As of
the date of the offenses, Florida law provided that a person convicted of
a capital felony was to be punished by death unless the verdict included
a recommendation of mercy by a majority of the jury. By the
time of trial, Florida had enacted a new death penalty procedure under which
the death sentence would be discretionary with the trial judge after separate sentencing
hearings before jury and the court, and upon receiving a non-binding recommendation from
a majority of the jury. Dobbert argued that the change in the
role of the judge and jury between the time of the murder and
the time of trial constituted an ex post facto violation. The Court
rejected this argument, noting "[e]ven though it may work to the disadvantage of
a defendant, a procedural change is not ex post facto." 432 U.S.
at 293, 97 S.Ct. at 2298, 53 L.Ed.2d at 356. "In the
case at hand," the Court stated, "the change in the statue was clearly
procedural. The new statute simply altered the methods employed in determining whether
the death penalty was to be imposed; there was no change in the
quantum of punishment attached to the crime." 432 U.S. at 293-94, 97
S.Ct. at 2298, 53 L.Ed.2d at 356.
The United States Supreme Court recently revisited and extensively explored the prohib
ex post facto laws in Stogner v. California, 539 U.S. 607, 123 S.Ct.
2446, 156 L.Ed.2d 544 (2003). The opinion endorses the categorical description of
ex post facto laws set forth by Justice Chase more than 200 years
ago in Calder v. Bull, 3 Dall. 386, 390-91, 1 L.Ed. 648, 650
(1798), noting that it continues to "provid[e] an authoritative account of the scope
of the Ex Post Facto Clause." Stogner, 539 U.S. at ___, 123
S.Ct. at 2450, 156 L.Ed.2d at 552. Justice Chase wrote:
I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.
Calder, 3 Dall. at 390-91, 1 L.Ed. at 650 (quoted in Stogner, 539
U.S. at ___, 123 S.Ct. at 2450, 156 L.Ed.2d at 552). In
Stogner, the Court invalidated as an ex post facto law a 1993 California
criminal statute extending a three-year statute of limitations in certain sex-related child abuse
cases. Stogner had been charged under the new law for offenses committed
between 1955 and 1973. The Court held that the change in the
applicable statute of limitations "falls within Justice Chase's second category of ex post
facto laws." 539 U.S. at ___, 123 S.Ct. at 2461, 156 L.Ed.2d
The 2002 amendment to the Indiana penalty statute reassigns from the trial judge
to the jury the final decision on whether the charged aggravating circumstance or
circumstances have been proved beyond a reasonable doubt, whether any mitigating circumstances that
exist are outweighed by the aggravating circumstance(s), and whether to impose a sentence
of death or life imprisonment without parole. We find that the nature
of the challenged legislative change is equivalent to that which Dobbert concluded did
not violate the Ex Post Facto Clause because it was merely procedural and
did not change the quantum of punishment attached to the crime. This
change in procedure does not implicate any of Justice Chase's categories of ex
post facto laws. It does not criminalize conduct done before enactment.
It does not make the crime greater than when committed. It does
not increase the punishment. It does not alter the evidence required to
Because the 2002 amendment to the penalty statute does not violate the Ex
Post Facto Clause, the trial court was required to sentence the defendant in
accordance with the jury's recommendation of life imprisonment without parole, regardless of any
additional evidence that might have been presented at the judicial sentencing hearing following
a continuance. The defendant was thus not harmed by the trial court's
denial of his motion for a continuance of the final sentencing hearing.
Appellant's Appendix, vol. II, p. 458. This instruction arises from Indiana Code
§ 35-38-1-17, which provides in relevant part:
(a) Within three hundreds sixty-five (365) days after:
(1) the defendant begins serving his sentence;
(2) a hearing at which the defendant is present and of which the prosecuting attorney has been notified; and
(3) obtaining a report from the department of correction concerning the defendant's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must incorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsed since the defendant began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney. . . .
. . .
(d) The court may suspend a sentence for a felony under this section only if suspension is permitted under IC 35-50-2-2.
Indiana Code § 35-50-2-2(a) generally provides that the sentencing court "may suspend any
part of a sentence for a felony." This is limited by subsection
2(b), which states that, with respect to certain enumerated crimes, including murder, "the
court may suspend only that part of the sentence that is in excess
of the minimum sentence."
The defendant asserts that Instruction No. 14 correctly states the law, and the
See footnote The defendant, however, contends that giving the instruction over his
ituted reversible error because it was incomplete and therefore misleading for two
reasons. First, he argues that, if the penalty statute, Ind. Code §
35-50-2-9, as amended, is construed to make the jury's recommendation binding upon the
court such that the sentence may not be modified pursuant to Indiana Code
§ 35-38-1-17 (quoted above), then giving the instruction improperly diminished in the jurors'
minds the importance and binding effect of their decision favoring life without parole.
Second, the defendant urges that the instruction failed to inform the jury
that, if he is sentenced to a term of years, the sentence could
not be suspended below the minimum sentence provided by statute for the charged
offense of murder. He urges that this left the jurors "wondering whether,
despite their recommendation, the defendant may ultimately walk out on probation." Br.
of Appellant at 20.
The State responds that Instruction No. 14 did not misstate the law or
mislead the jury. It argues that the instruction aided the jury in
understanding the full range of sentencing available should the jury not choose life
without parole. The State points to other instructions that informed the jury
of the minimum sentence for murder and the availability of credit time, and
argues there was no basis in the instructions for the jury to speculate
that the defendant might eventually be released on probation.
The defendant's trial objection to Instruction No. 14, while adequately preserving his claim
that the instruction was incomplete, did not assert that the instruction diminished the
jurors' sense of the importance and binding effect of their decision. The
defendant's stated objection was:
that any modification can only be in accordance with law, that is the sentence could not be modified to anything other than in accor - - - other than that which the court could have imposed at the original sentencing and, therefore, may lead the jury to believe that at some time in the future it is possible that a defendant could receive something less than what their recommendation might be.
Transcript vol. 6, p. 920. The defendant may not appeal the giving of an instruction on grounds not distinctly presented at trial. Ind. Trial Rule 51(C); Scisney v. State, 701 N.E.2d 847, 849 (Ind. 1998) (concluding that "appellate review of a claim of error in the giving of a jury instruction requires a timely trial objection clearly identifying both the claimed objectionable matter and the grounds for the objection"); Mitchem v. State, 685 N.E.2d 671, 675 (Ind. 1997) (waiving one of defendant's alleged errors where defendant failed to distinctly state his objection and the grounds for it at trial). In State v. Luna, 758 N.E.2d 515, 518 (Ind. 2001), the defendant "made a timely trial objection and identified the claimed objectionable matter but the objection did not clearly identify the grounds for the objection" (emphasis added). We held in Luna that a defendant must identify "specific grounds in support of an objection to an incorrect jury instruction," particularly where the trial court focuses its attention on the language of a misleading or incomplete proposed instruction. Id. Because the Luna defendant failed to state the ground for her objection that she later asserted on appeal, we considered her argument waived. Similarly, the defendant here may not claim on appeal that the instruction diminished the jury's sense of the importance and binding effect of its decision.
Notwithstanding the fact that the defendant's claim is procedurally defaulted by reason of the failure to present this claim at trial, we nevertheless observe that reversal is also unwarranted on the merits of this claim. The Supreme Court in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), held unconstitutional a prosecutor's closing arguments to a jury which misinformed the jury regarding sentencing and thereby undermined the jury's sense of responsibility for the sentence imposed. We do not believe that the jury's sense of responsibility could reasonably have been undermined by the omission of language in Instruction No. 14 explaining the limits on a judge's authority to suspend or reduce a sentence within 365 days of sentencing. The jury was advised in its preliminary penalty phase instructions that their "recommendation [was] an important part of the sentencing process" and that "[t]he law requires that the judge follow [its] sentencing recommendation." Appellant's Appendix at 442. Furthermore, during the final penalty phase instructions, Instruction No. 15, read to the jury immediately following Instruction No. 14 that the defendant challenges, declared: "The law requires that [the jury's] recommendation in regard to sentencing be followed by the judge." See footnote Id. at 459. We conclude that the relatively insubstantial omission in Instruction No. 14 could not reasonably have led the jury to speculate that the trial judge would reduce or suspend the sentence below the minimum statutory sentence for the offense of murder, thereby improperly undermining their sense of responsibility for their decision.
As to the defendant's claim, raised at trial, that Instruction No. 14 misled
the jurors regarding whether, if they recommended a term of years, he could
be prematurely released, we acknowledge that the instruction did not advise the jury
that the trial court may not suspend a sentence for less than the
minimum forty-five year statutory sentence for murder.
We consider the instructions "as a whole and in reference to each other"
and do not r
everse the trial court "for an abuse of that discretion
unless the instructions as a whole mislead the jury as to the law
in the case." Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002).
An error in a particular instruction results in reversal only where the
entire body of instructions misleads the jury as to the law in the
case. Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996). Instruction
No. 10 explained the sentencing consequences if life imprisonment without parole is not
imposed. It stated that "a judge could impose a sentence on the
defendant ranging from a minimum of forty-five years if the sentences are ordered
served concurrently to a maximum of one hundred and thirty years if the
sentences are ordered served consecutively." Appellant's Appendix at 454. Instruction No.
11 related to the reduction of a term of years for earned credit
time that could reduce time served to "fifty percent of the sentence imposed
by the judge." Id. at 455.
Taking the instructions as a whole, we are not persuaded that Instruction No.
14, by generally mentioning that "the judge has discretion to modify the sentence"
could reasonably have lead the jury to improperly speculate that "the defendant may
ultimately walk out on probation" as argued by the defendant. There was
no significant possibility that the jury was misled to believe that the defendant
could be prematurely released.