ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Monica Foster Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
SUPREME COURT OF INDIANA
MARSHALL FORD, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 49S00-9703-CR-193 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )Cause No. 49G06-9520-CF-146699
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jane Magnus-Stinson, Judge
SHEPARD, Chief Justice.
Appellant Marshall Ford was found guilty of murder, Ind. Code § 35-50-2-3. The trial court sentenced him to the presumptive term of fifty-five years.
Two days later, Ford awoke for work at 4:30 a.m. He showered, shaved, went to the garage, and retrieved his .38 caliber revolver.
Ford put the gun in his pocket. He left his briefcase, keys, coat,
and holster in the garage and then went inside to speak with
Ford testified that he told Regina that "[he] didn't understand what was going on with her and Dennis, but [he] loved her and [he] didn't want her to leave." (R. at 684.) He claims that she then became angry, yelled "[O]h, [f]--- you, Marshall" and pushed him away. (Id.) Ford lost control and shot Regina in the chest from about three feet away. He then shot her again from a distance of six inches.
Ford claims that evidence of Regina Ford's state of mind was irrelevant to the course of trial proceedings. Specifically, Ford argues that Anita Warman's testimony that Regina Ford was afraid of
her husband should not have been admitted.
We review evidentiary rulings for an abuse of discretion.
Yamobi v. State, 672 N.E.2d 1344 (Ind. 1996). We reverse only when
the decision is clearly against the logic and effect of the facts
and the circumstances. Joyner v. State, 678 N.E.2d 386 (Ind.
Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Evid.R. 801(a). Evidence
Rule 803(3) permits use of otherwise inadmissible hearsay when the
statement is offered to show a declarant's then-existing state of
mind. We recently discussed instances where such statements may be
admissible, including: (1) to show the intent of the victim to act
in a particular way, (2) to controvert a defendant's evidence when
the defendant puts the victim's state of mind at issue, and, (3) in
limited circumstances, to explain physical injuries suffered by the
victim at the hands of the defendant. Taylor v. State, 659 N.E.2d
535 (Ind. 1995).
Ford argues that Regina's statement was both irrelevant and
not within any hearsay exception. The State responds by submitting
that the evidence is relevant because Ford put the victim's state
of mind in issue.
In the case at bar, Regina's statement falls within the Rule
803(3) exception because it indicates that she was fearful of Ford
and was offered to directly controvert evidence presented by the
defendant to show that Regina acted aggressively towards him and
provoked his actions. Lock v. State, 567 N.E.2d 1115, 1159-60
(Ind. 1991). "Rule 803(3) allows statements of the declarant's
then-existing state of mind . . . to be entered into evidence."
Ross v. State, 676 N.E.2d 339, 345 (Ind. 1996).
Of course, the state of mind declaration must be relevant to
some issue in the case. Relevant evidence is evidence that has
"any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." Evid.R. 401.
Here, Warman's testimony is relevant, because Ford put the victim's state of mind in issue. Warman's statements put into question Ford's claim that Regina would want to aggravate her
husband by cursing and pushing him away. Regina's expression of
fear tends to contradict Ford's statement of events. While we
might be inclined to say that the probative value of this evidence
is less than its prejudicial effect, on these facts we cannot say
that the trial court abused its discretion in admitting the
evidence over the defendant's objection.
B. Harmless Error. Even if the trial court erred by admitting
Warman's testimony, the error was harmless. Reversal is
appropriate where erroneously admitted evidence caused prejudice to
the appellant's substantial legal rights. Martin v. State, 622
N.E.2d 185 (Ind. 1993). To determine whether an error in the
introduction for evidence affected the appellant's substantial
rights, the appellate tribunal must assess the probable impact of
that evidence upon the jury. Alva v. State, 605 N.E.2d 169 (Ind.
Ford admitted that he shot Regina. Given the substantial amount of evidence that Ford was not acting under the influence of sudden heat when he pulled the trigger, admission of evidence that Regina feared her husband was only slightly prejudicial. First, Ford discovered evidence of his wife's affair with his best friend, Dennis Davis, three days prior to the shooting .See footnote 1 Second, Ford's claim that he put his pistol in his pocket on his way to work was
undermined by the fact that he left his briefcase, keys, coat and
holster in the garage.
Finally, Ford shot Regina twice, the
second from close range, which would indicate that her murder was
intentional. The nature of the evidence against Ford is such that
admission of Regina's expression of fear that her husband would
kill her was only slightly prejudicial.
Ford claims that his right to appeal was violated by the trial
court's failure to provide a complete transcript of the
proceedings. He asserts specifically that the trial court did not
record bench conferences.
Appellant bears the burden of presenting a record that is complete with respect to the issues raised on appeal. Clark v. State, 562 N.E.2d 11 (Ind. 1990). This burden is sustained by submitting a transcript of the trial proceedings or, where no transcript is available, an affidavit setting forward the content
of the proceedings. Id. (citing Ind.Appellate Rule. 7.2(A))
also Ruetz v. State,
268 Ind. 42, 46
, 373 N.E.2d 152, 154-55 (1978)
(substitution of affidavit in place of verbatim transcript was not
denial of due process).
Here, the parties were able to reconstruct bench conferences
by affidavit and submitted them to this Court in the form of a
supplemental record. Ford's argument concerns six unrecorded bench
conferences. Affidavits as to the substance of these proceedings
were provided by Dennis Zahn and James Voyles, defense counsel for
Ford at trial, (Supp.R. at 779-81, 782-84), and deputy prosecutors
Sheila Carlisle, (
at 786-88), and Carl Brizzi, (
The parties reconstructed these bench conferences according to
the terms provided in App.R. 7.2(A)(3)(c). Ford's right to an
appeal was thus not jeopardized by the trial court's failure to
In jury instruction #16, the judge indicated that "[r]egarding
testimony, the law prevents me from allowing you to rehear any
recording or any part of it or allow you to read any transcript or
any part of it." (R. at 107.)
If a defendant fails to object to an instruction at trial, he
has waived his challenge to the instruction. Fulmer v. State, 523
N.E.2d 754, 756 (Ind. 1988). Because Ford failed to object to this
instruction at trial, he waived this claim.
Ford attempts to avoid this waiver by claiming the instruction
constituted fundamental error. He argues that the error is blatant
because the tendered instruction is directly contrary to Indiana
Code section 34-1-21-6.See footnote
Sentencing decisions are within the discretion of the trial court and we reverse only upon a showing of manifest abuse of that discretion. Sims v. State, 585 N.E.2d 271 (Ind. 1992) . When a trial court imposes the presumptive sentence, we presume on appeal that the trial court considered the proper factors in making its sentencing determination. Hammons v. State, 493 N.E.2d 1250 (Ind. 1986) . We revise these determinations only when we are satisfied
that the sentence is manifestly unreasonable. App.R. 17(B).
In mitigation, the trial judge recognized that (1) Ford had a negligible criminal history, (2) Ford attempted to be a good father, and (3) Ford was provoked into shooting Regina. The judge found as aggravating circumstances (1) that Ford caused hardship to his children by depriving them of their parents and (2) that his obsessive, controlling behavior precipitated the crime.
It appears clear from the statement the trial judge made at
the close of the sentencing hearing
that she gave adequate thought
and consideration to the balancing of aggravating and mitigating
. Given these factors, imposing the presumptive sentence
was reasonable and appropriate.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
If no report of all or part of the evidence or proceedings at the hearing or trial was or is being made, or if a transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including his recollection. . . . If statements or conduct of the trial judge are in controversy, the statement shall be supported by sworn affidavit which shall be submitted to the trial judge for his certification.
After the jury have retired for deliberation, if there is a
disagreement between them as to any part of the testimony, or if
they desire to be informed as to any point of law arising in the
case, they may request the officer to conduct them into court, where
the information required shall be give in the presence of, or after
notice to, the parties or their attorneys.
Ind. Code Ann. § 34-1-21-6 (West 1983) (repealed 1998, recodified as Ind. Code § 34-36-1-6 (West Supp. 1998)).
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