ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen M. Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
David P. Freund Arthur Thaddeus Perry
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
INDIANA SUPREME COURT
JAMES SWINGLEY, )
v. ) 18S00-9905-CR-271
STATE OF INDIANA, )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Steven R. Caldemeyer
Cause No. 18C01-9805-CF-34
On Direct Appeal
December 1, 2000
The defendant, James Swingley, was convicted of murder
See footnote for the November 12, 1996,
killing of Brian Insco in Muncie, Indiana. The defendant's one claim on
appeal is that three autopsy photographs were erroneously admitted into evidence thereby infringing
his right to a fair trial.
The defendant's claim focuses on three slides in a ten-slide presentation labeled collectively
as State's Exhibit 13. Record at 594. These slides were projected
on a screen during the pathologist's testimony. The defendant argues that the
probative value of the slides was outweighed by their prejudicial effect. Because
the admission and exclusion of evidence falls within the sound discretion of the
trial court, this Court reviews the admission of photographic evidence only for abuse
Byers v. State, 709 N.E.2d 1024, 1028 (Ind. 1999); Amburgey
v. State, 696 N.E.2d 44, 45 (Ind. 1998). Relevant evidence, including photographs,
may be excluded only if its probative value is substantially outweighed by the
danger of unfair prejudice. Ind. Evidence Rule 403; Byers, 709 N.E.2d
at 1028. "Even 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." Amburgey, 696 N.E.2d at 45; see also Byers,
709 N.E.2d at 1028. Photographs, even those gruesome in nature, are admissible
if they act as interpretative aids for the jury and have strong probative
value. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind. 1999); Robinson v.
State, 693 N.E.2d 548, 553 (Ind. 1998).
The defendant does not dispute that this is the standard of review but
points to Allen v. State, 686 N.E.2d 760 (Ind. 1997), cert. denied, 525
U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999), for the proposition that
"autopsy photographs are generally inadmissible if they show the body in an altered
condition." Id. at 776. When a body is altered for a
photograph, the concern is that the handiwork of the physician may be imputed
to the accused assailant and "'thereby render the defendant responsible in the minds
of the jurors for the cuts, incisions, and indignity of an autopsy.'"
Id. (quoting Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982)). While
this is the general rule, we have recognized exceptions. In Fentress v.
State, 702 N.E.2d 721 (Ind. 1998), we held two photographs, which depicted the
victim's skull with the hair and skin pulled away from it, admissible notwithstanding
Allen. Because the pathologist had explained what he had done and the
alteration was necessary to determine the extent of the victim's injuries, we found
that the "potential for confusion was minimal" and that the probative value outweighed
the prejudicial effect. Fentress, 702 N.E.2d at 722.
We also found autopsy photographs depicting a body that had been altered to
be admissible in Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000).
The photograph at issue in Cutter depicted a pathologist's hand holding open the
victim's vagina to display bruises that were relevant to the "by force" element
of the rape charge. Id. We stated this photograph was admissible
because the "distortion was necessary to show the jury [the victim's] largely internal
injury." Id. As these cases show, there are situations where some
alteration of the body is allowed where necessary to demonstrate the testimony being
The cause of death in this case was exsanguination (bleeding to death) from
a cut in the neck that extended about one-third of the way through.
Record at 603. Two of the photographs depict the victim's gaping
neck wound. The pathologist had done nothing to the wound other than
to clean it. The record is unclear as to the extent the
body was altered so that the wound was open, but even if the
body was positioned in such a way as to open the wound more
than it was originally, the positioning was necessary to show the extent of
the wound and the cause of death. Also, in regards to the
second slide where the wound is the most open, the pathologist stated that
he had opened the wound to show the blood vessels that had been
cut (resulting in death). Record at 603. As the probative value
of these slides outweighed their prejudicial effect, the admission of these two slides
was not error.
The third slide depicted the victim's windpipe or larynx removed from the body
and lying on a sheet. This is the type of alteration Allen
contemplates, and as other photographs depicted the extent of the defendant's wounds and
the cause of his death, the additional altered photograph was unnecessary. See
Turben v. State, 726 N.E.2d 1245, 1247 (Ind. 2000)(photograph inadmissible that depicted gloved
hands manipulating a bloody mass with a probe, the mass purportedly represented the
victim's head with the skin and bones cut open and peeled back to
expose the interior of the victim's neck). Because its potential for prejudice
outweighed it probative value, the trial court erred in allowing the admission of
the slide depicting the removed windpipe.
However, finding that the trial court erred in admitting the photograph is not
enough to warrant 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. Ind. Trial Rule 61; Fleener v. State, 656 N.E.2d
1140, 1141 (Ind. 1995). 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).
The defendant argues that the error was not harmless, but "swayed the jury
to ignore the huge credibility gaps in the State's case." Brief of
Defendant-Appellant at 33. The defendant also alleges inconsistencies in the witnesses' testimony.
We find it improbable that the gruesome slide had any significant impact
on the jury's decision. Two men saw the defendant commit the crime,
and four other people on separate occasions heard the defendant state that he
cut the victim's throat. In light of this evidence of guilt, we
find that the probable impact of the erroneous admission of the windpipe slide
did not affect the defendant's substantial rights, and that the error in admitting
the exhibit must be disregarded as harmless error.
We affirm the defendant's conviction for murder.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1.