ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Brent Zook Karen Freeman-Wilson
Goshen, Indiana Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
SUPREME COURT OF INDIANA
JAMES F. WRIGHT, JR., ) ) Appellant (Defendant Below ), ) ) v. )Cause No. 20S00-9808-CR-431 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
July 3, 2000
SHEPARD, Chief Justice.
The appellant James Wright appeals from a conviction of murder and presents four issues of our review:
Whether the trial court properly instructed the jury about the States burden of proof.
Whether the trial court correctly instructed the jury regarding the statutory intoxication defense.
Whether the trial court properly admitted several photographs of the victim.
Whether the trial court properly admitted several hearsay statements.
In the early morning of May 31, 1997, Debra Damron went to the home of her mother, Barbara Marshall, and found Marshall dead, lying on her living room floor in a pool of blood, amid several knives. The cause of death was a stab wound to the neck, accompanied by strangulation. Marshalls body had a total of sixty-five incisional wounds.
At some point, investigation of the murder focused on James Wright, who was
Marshalls neighbor. Wright then gave a statement to the police in which
he admitted going to Marshalls home on May 31st. According to Wright,
he went to her home to use the telephone because he was locked
out of his own home. While he was using the phone, Marshall
approached him with a knife. An altercation ensued, during which Wright stabbed
Marshall, then fled. A search of Marshalls home uncovered two blood spots
in the hallway near one of the doors. The DNA contained in
this blood matched that of Wright.
Wright was convicted of murder and sentenced to sixty-five years.
The thrust of Wrights claim is that the courts instructions impermissibly impinged upon
the jurys role under Article I, section 19 of the Indiana Constitution, which
states: In all criminal cases whatever, the jury shall have the right
to determine the law and the facts.
The defense did not object to these instructions at trial. Failure to object to a jury instruction results in waiver on appeal, unless giving the instruction was fundamental error. Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998). Error is fundamental if it is a substantial blatant violation of basic principles and where, if not corrected, it would deny a defendant fundamental due process. Id.
Two of the instructions in question read in pertinent part as follows:
The State has the burden of proving that the defendant is guilty beyond a reasonable doubt. . . . Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendants guilt. . . . If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you should find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you should give him the benefit of the doubt and find him not guilty.
(R. at 158, 727-28.)
We now turn to the third instruction at issue, which read:
First, it is proper to tell the jury it should convict. Justice
DeBruler outlined the rule in Loftis v. State, 256 Ind. 417, 419-20, 269
N.E.2d 746, 747 (1971):
The principle is established that a trial court may instruct the jury that if they find that all the material allegations of the indictment or affidavit are proven beyond a reasonable doubt that they should convict the defendants. However, such an instruction would be erroneous where the court failed to set forth all the material allegations which the state must prove before a conviction can be obtained or where the court failed to instruct the jury that they were the judges of the law as well as the facts.
Second, as the Loftis court recognized, it is error to mandate that jurors return a guilty verdict upon a finding of certain specifically mentioned facts. In Pritchard v. State, 248 Ind. 566, 568, 230 N.E.2d 416, 417 (1967), the trial court instructed the jury as follows:
The Court now instructs you that if you should find that [the defendant] . . . [was] guilty of cruelty or neglect of Kathy Jean Pritchard and that as a result of such cruelty or neglect beyond a reasonable doubt Kathy Jean Pritchard did sicken, languish and die, then you shall find such defendant guilty of involuntary manslaughter.
(emphasis omitted). We held this instruction impinged upon the role of jurors under our state Constitution. Id. at 576, 230 N.E.2d at 421.
Third, instructions that might be erroneous do not constitute grounds for reversal where
no objection was lodged. Fundamental error does not occur, for example, even
when the trial judge gives the jurors a relatively strong directive, so long
as the court also tells them the elements of the offense and reminds
them that they are the judges of both law and fact. Barker
v. State, 440 N.E.2d 664 (Ind. 1982) (no fundamental error where instructions told
jury that it must convict if material elements were proven and that it
was judge of both law and facts); see also Taylor v. State, 420
N.E.2d 1231 (Ind. 1981) (no fundamental error to tell jury it must find
the Defendant guilty if material allegations are proven beyond a reasonable doubt where
no Pritchard instruction was given and instruction on jury as judge of law
and facts was given).
The instructions here fit inside the holdings of Barker and Taylor. The trial court gave a final instruction on the elements of murder. (R. at 145.) It also instructed the jurors that they were the judges of both the law and the facts, and that they were to consider all the instructions as they relate to each other. (R. at 143, 162.) Any error was not fundamental.
We have had other occasions to consider such a claim.
When Wright committed the offense in question, Ind. Code § 35-41-3-5(b) read:
Voluntary intoxication is a defense only to the extent that it negates an
element of an offense referred to by the phrase with intent to or
with an intention to. This Court held that statute void in Terry
v. State, 465 N.E.2d 1085, 1088 (Ind. 1984), saying the voluntary intoxication defense
can be offered for any crime, regardless of the exact language used in
defining the elements of the crime.
Even giving an instruction based on this voided statute, however, does not always
require a new trial. In Horan v. State, 682 N.E.2d 502, 509
(Ind. 1997), the trial court did precisely that, but the defendant did not
object. Because none of the charged crimes contained the phrase with intent
to or with an intention to, the legal upshot of the erroneous instruction
was that voluntary intoxication was not a defense available to Horan.
We affirmed the conviction anyway. As Justice Sullivan put it, when a
defendant was not entitled to a voluntary intoxication instruction in the first place,
it could not have been fundamental error to give a defective one.
A voluntary intoxication instruction is required only where the evidence relevant to the
defense, if believed, was such that it could have created a reasonable doubt
in the jurys mind that the accused had acted with the requisite mental
state. Id. (quoting Van Cleave, 674 N.E.2d at 1303). As Justice
Boehm recently observed, establishing reasonable doubt through an intoxication instruction is not an
easy threshold to meet. Van Cleave, 674 N.E.2d at 1303. The
author of Terry, Chief Justice Givan, thought it required showing the defendant was
completely non compos mentis. Sills v. State, 463 N.E.2d 228, 242 (Ind.
1984) (Givan, C.J., concurring).
The degree of intoxication is immaterial; rather, the issue is whether the accused
was still able to form the mens rea required for the crime.
Van Cleave, 674 N.E.2d at 1303. Evidence that shows a defendant could
form the requisite mens rea includes proof such as his ability to devise
a plan, operate equipment, instruct the behavior of others, or carry out acts
requiring physical skill. Id. (quoting Owens v. State, 659 N.E.2d 466, 473
After reviewing the record, we conclude that the evidence did not demonstrate that Wright was so intoxicated at the time the crime occurred as to prevent him from forming the requisite intent to murder. Several days after Barbara Marshall was murdered, Wright spoke with the police and gave them a statement regarding his activities on May 31, 1997. A review of Wrights statement reveals that he was able to give the police a comprehensive account of his activities, providing details substantiated by other witnesses.
For example, Wright told the police that, early in the evening, after he
had consumed crack cocaine, he went to an ATM and withdrew cash, an
operation that requires a fair level of consciousness. (R. at 565.)
Officer Windbigler corroborated Wright on this score; he found an ATM receipt in
Wrights sweatpants following a search of Wrights home. (R. at 590.)
Later that evening, Wrights wife dropped him off at an apartment house so
that he could purchase more drugs. (R. at 565.) When Wright
returned home, he was locked out of his house, so he went next
door to Marshalls home to use her phone. (
Id.) According to
Wright, Marshall allowed him into her home and he used a phone that
he accurately described as a white push button phone. (Id.; R. at
Wright told the police that when he finished using the phone, Marshall was
standing behind him holding a knife. A fight ensued, and Wright began
stabbing Marshall, eventually using more than one knife to kill her. Police
reports and photos confirm that more than one knife was used to stab
Marshall. Realizing what he had done, Wright ran to the back door
and tried to exit. Wright said he was unable to open the
chain lock on the back door, so he went to the front door
and left through it. The fact of there being a chain lock
on the back door is also confirmed by police reports and photos.
Wright was also able to recall the events occurring after the crime.
In his statement, Wright told the police that, after leaving Marshalls house, he
went to a crackhouse to purchase drugs. Several witnesses confirmed Wrights presence
at the crackhouse. While there, someone told Wright that he had blood
on his face, so Wright requested some water and washed his face.
Finally, Wright walked home. Still locked out, he entered his home by
climbing through a window. He then changed his clothes and washed his
face and hands.
Wright pursued three defenses. First, he contended he was not the perpetrator
at all. Second, he argued that if he was the perpetrator, he
acted in self-defense. Third, he claimed he was too drugged to possess
Although Wright claims he was unable to form the requisite intent to commit
murder due to his drug use during the night before and the morning
of Marshalls murder, the only evidence tending to establish lack of intent is
Wrights own insistence that his memory of the events was like a dream
or vision. (Appellants Br. at 11.) Still, Wright was able to
recall accurately the events of May 31st, and acted in a lucid and
rational manner following the crime. Despite his alleged intoxication, Wright was alert
enough to walk home, climb through a window, and wash the blood off
of his hands and face.
Based on the foregoing, even if Wright did consume drugs on May 31st,
the evidence relevant to the defense of voluntary intoxication . . . even
if believed, was not such that it could have created a reasonable doubt
in the jurys mind as to whether Wright knowingly killed Marshall. See
Horan, 682 N.E.2d at 509.
As in Horan, the court erroneously instructed the jury. See footnote Because Wright was not entitled to an intoxication instruction this error does not provide grounds for reversal.
To exclude photographs from evidence on relevancy grounds, Wright must show that their
improper influence on the jury outweighed their probative value to the extent that
they were unduly prejudicial. Harrison v. State, 699 N.E.2d 645, 647 (Ind.
1998). Photographs depicting the victims injuries or demonstrating a witnesss testimony are
generally admissible and will not be rejected merely because they are gruesome or
cumulative. Id. To exclude photographs because they are cumulative, Wright must
show that the probative value is substantially outweighed by the needless presentation of
cumulative evidence. Id. at 648. We review the trial courts ruling
for an abuse of discretion. Id.
Of the photographs at issue, two depict Marshalls body on the floor, where
it was found. One shows only her head; another shows her entire
body. These photos show her body in relation to the door and
hallway. They also demonstrate that several knives were found near her body.
Exhibits 32-45 are a catalogue of the numerous stab wounds inflicted upon
the victim. One photo shows a complete overview of the victims torso,
while two others are close-ups of her face and neck, and the corresponding
incisions. The remaining ten photographs are close-up shots of the victims stab
wounds, including photographs of her hands, arms, and scalp.
The photographs at issue establish the cause of death and the manner in
which the crime was committed. This evidence was particularly probative inasmuch as
Wright attempted to establish that he was not the perpetrator and, in the
alternative, that the killing was without deliberation, in response to being confronted by
a woman with a knife while Wright was in a deeply intoxicated state.
(Appellants Br. at 12.) The photographs are also probative in light
of Wrights testimony at trial that he did not remember stabbing Barbara Marshall.
The photographs are not particularly gruesome and show the wounds as the coroner
found them, without alteration. Each photo shows a different view of the
crime scene or the victims injuries. These photographs were not needlessly cumulative
and were not introduced solely for the purpose of inflaming the jurors emotions.
We do not see an abuse of discretion by the trial court.
Were there any statements taken from those people?
Youve seen them?
Yes, sir. I believe they are in the case.
Did those persons who were interrogated say that Jim [Wright] had been there?
Somebody had remembered seeing him with blood on him. Something to that
effect. I remember that statement.
But you werent involved in that part?
I believe somebody else took the statement. What we did is we
knocked on doors of allegedly these places where he was at. I
know we found one or two people or maybe three who said, yeah,
he stopped and they had gotten money with blood on it. He
had blood on his shirt; those type things.
(R. at 587.)
On redirect, the State attempted to introduce three written witness statements, the statements of Tony Holiday, Nickolis Wilson, and one unidentified person. The defendant objected to the introduction of these statements as inadmissible hearsay, and the trial court sustained the objection. The State then resumed Windbiglers redirect, asking him what the witnesses said. Windbigler testified that one witness said she had observed Wright arriving at the crackhouse with blood on his face and clothing. She also said that Wright asked for some water and washed his face. Windbigler said that another witness told him that Wright bought some crack cocaine and paid for it with money partially covered in blood. The defense objected to these statements as inadmissible hearsay, and the trial court overruled the objection.
Although the defense objected to and now complains of the admission of the
hearsay statements on redirect, no objection was made to the testimony about the
statements on cross examination. Indeed, the defense first injected the issue of
the witness statements into the trial. Reversal may not be predicated upon
the erroneous admission of evidence when evidence having the same probative effect is
admitted without objection or without contradiction. Bobbitt v. State, 266 Ind. 164,
361 N.E.2d 1193 (1977). The statements made on redirect are about the
same as those elicited by the defense during cross-examination. We find no
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Before September 1, 1980, intoxication was a defense to any crime only to
the extent it negated specific intent. Ind. Code Ann. § 35-41-3-5(b) (West
Supp. 1979). In 1980, the legislature revised the statute to limit the
voluntary intoxication defense only to those offenses specifically defined by use of the
phrases with intent to or with the intention to. Ind. Code Ann.
§ 35-41-3-5(b) (West 1986); Van Cleave, 674 N.E.2d at 1302. This Court
strictly construed that amendment and applied the statute only to those crimes defined
by those phrases until Terry, 465 N.E.2d 1085, wherein we declared the 1980
amendment void and without effect, reasoning that the U.S. and Indiana Constitutions required
voluntary intoxication as a defense to any crime. Van Cleave, 674 N.E.2d
at 1302 (citing Terry, 465 N.E.2d at 1088). We subsequently held in
Pavey v. State, 498 N.E.2d 1195, 1196 (Ind. 1986), that Terry applied retroactively.
In 1996, the U.S. Supreme Court held in Montana v. Egelhoff, 518 U.S.
37 (1996), that the Due Process Clause of the Fourteenth Amendment to the
U.S. Constitution does not require states to make the voluntary intoxication defense available.
Thus, Terry is no longer good law as it applies to the
federal Constitution. This Court has not considered whether Terry still has precedential
value under the Indiana Constitution, as the question has not yet been squarely
before us. See Van Cleave, 674 N.E.2d at 1302-03 n.15; Horan, 682
N.E.2d at 508 n.5.
It is a defense that a person who engaged in the prohibited conduct did so while he was intoxicated, only if the intoxication resulted from the introduction of a substance into his body:
Without his consent; or
When he did not know that the substance might cause intoxication.
(R. at 150.)
Relying on this Courts opinion in Terry, 465 N.E.2d 1085, Wright argues that the trial court erred in giving the jury this instruction because the statutes on which it is based violate the Indiana Constitution. Wright concedes that the statutes are not unconstitutional under the United States Constitution. See Montana v. Egelhoff, 518 U.S. 37.
Although both sides agree that these statutes apply in the instant case, we note that Ind. Code § 35-41-2-5 became effective on July 1, 1997, while Wright was charged with a murder that occurred on or about May 31, 1997. Therefore, Ind. Code § 35-41-2-5 does not apply to this case. Accordingly, we need not address the precedential value of Terry, 465 N.E.2d 1085, as it applies to the state constitutional implications of our legislatures decision to abolish the voluntary intoxication defense.