RUCKER, Justice.
The State charged Tyrice J. Halliburton with murder and alleged he was a habitual offender. The State also sought life imprisonment without parole. After a trial by jury Halliburton was found guilty as charged and the jury recommended life imprisonment. Following this recommendation, the trial court sentenced Halliburton accordingly. He now appeals contending the trial court erred in admitting certain evidence and gave the jury an erroneous limiting instruction. We affirm the judgment of the trial court.
On March 18, 2008, responding to a 911 call, police discovered the lifeless body of Sheena Kiska in her apartment in Bristol, Indiana. The base of her skull was fractured, a stab wound of great force had gone through a rib and organs, and a knife wound had severed her carotid artery as well as the jugular veins on both sides of her neck. In all, Kiska had received more than fifty stab wounds. Multiple bloody knives were found in the apartment, and blood splatters, smears, and droplets were abundant in the apartment. Two days later officers returned to the apartment to conduct further investigation but were unable to gain entry because other officers had changed the lock on the door for security reasons. Halliburton, who lived in the apartment next door, observed the officers having difficulty entering Kiska's residence and retrieved a tool from his own apartment that appeared to be "a little screwdriver that kind of ha[d] a bend on the top of it." Tr. at 225. With the officers' permission, Halliburton used the screwdriver to unlock the door in a manner the officers "had never seen" before. Tr. at 225.
The investigation continued, and in August 2010, Halliburton sent a letter to the police saying, "I want to clear [the resident's] name. I didn't really see him doing it." Tr. at 433-34. In January 2011, the State charged Halliburton with murder. Alleging he committed the murder by intentionally killing the victim while committing or attempting to commit burglary — pursuant to Indiana Code section 35-50-2-9(b)(1)(B) — the State filed an amended information in January 2012 seeking life imprisonment without parole. The State also charged Halliburton as a habitual offender.
Trial began April 16, 2012. During the guilt phase, testimony largely from State's witness Nicole DeFronzo revealed that in early 2008 she and her then-boyfriend Halliburton lived together in an apartment next door to Kiska. On March 18, 2008, Halliburton took his cat to a veterinary appointment where he had arranged to meet DeFronzo. Halliburton told DeFronzo that he had entered Kiska's apartment when she was not there. However, Kiska came home unexpectedly, and a struggle ensued resulting in her brutal death. More precisely, according to DeFronzo, Halliburton told her that when Kiska came home, "he didn't want to get caught so he killed her." Tr. at 523. Halliburton left Kiska's apartment and changed his bloody clothes. DeFronzo helped dispose of the clothes and they drove to the home of DeFronzo's mother, a registered nurse, who bandaged a wound on Halliburton's hand. For over three years DeFronzo did not reveal to anyone what Halliburton had told her about Kiska's death. Nor had she revealed her own complicity in helping get rid of evidence.
During trial the State introduced numerous exhibits including photographs of the crime scene, pre and post autopsy photographs, and a rib bone of the victim that had been removed during autopsy. The State also introduced evidence that Halliburton had committed a burglary of Kiska's apartment approximately a month
The jury found Halliburton guilty of murder as charged. At the penalty phase of trial, the jury recommended life imprisonment without parole. And thereafter Halliburton admitted to being a habitual offender. Following a sentencing hearing the trial court sentenced Halliburton consistent with the jury's recommendation.
Halliburton alleges the trial court erred in admitting the following: various pre and post autopsy photographs, purported bad acts evidence of Halliburton's prior involvement in a burglary at the victim's home, and alleged vouching testimony from one of the State's witnesses. "A trial court has broad discretion in ruling on the admissibility of evidence and we will disturb its rulings only where it is shown that the court abused that discretion." Turner, 953 N.E.2d at 1045. "An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Id.
The trial court admitted into evidence exhibits which Halliburton characterizes as "27 gruesome photographs depicting all or part of Kiska's body after her murder." Br. of Appellant at 8-9 (emphasis in original). However, Halliburton objected only to five of these photographs: State's Exhibits 11, 12, 68, 76, and 77. Thus we examine whether the trial court abused its discretion in admitting these five exhibits over Halliburton's objection. As for the remaining photographs, Halliburton
State's Exhibits 11 and 12 show two different angles of Kiska's body as seen by the investigating officer when he arrived on the crime scene. In both photographs the face of the body is covered in blood and there are apparent knife wounds to the neck. Halliburton objected to their admission into evidence on grounds they "[would inflame] the passions of the jury, and that [they] would be highly prejudicial to be admitted." Tr. at 79, 82.
"[G]enerally, photographs depicting the crime scene and victim's body are admissible as long as they are relevant and competent aids to the jury." Woods v. State, 677 N.E.2d 499, 504 (Ind.1997). In this appeal Halliburton does not contend the photographs were irrelevant. Instead he makes the more general claim that the exhibits are "gruesome" and serve to "inflame[] the emotions of the jury." Br. of Appellant at 6-7. We would agree that these two photographs depicting the victim's blood-stained face are at least graphic if not gruesome. But "[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."
In this case the record shows that Michael Swallow — Chief of Police of the Bristol Police Department — was the first officer to arrive on the crime scene and one of the officers who first entered Kiska's apartment. Chief Swallow testified to the state of the apartment as he found it and the condition and location of Kiska's bloodied body on the living room floor. He observed "a large amount of what appeared to be blood in the vicinity of the body" — "between the body and the door, and then right with the body as well." Tr. at 61, 62. Two bloody knives were visible at the scene — one lying in the hallway area and another in close proximity to Kiska's body. He also described the extent of the wounds that he observed on Kiska's neck and face. Chief Swallow testified that the State's Exhibits 11 and 12 accurately represented his observations on the day Kiska was killed. Because the photographs depicted the very scene that the witness described in his testimony, because Halliburton does not contend the photographs were irrelevant or immaterial, and because he has not demonstrated their probative value was substantially outweighed by the danger of unfair prejudice, we conclude the trial court did not abuse its discretion by admitting the exhibits into evidence.
Exhibits 68, 76, and 77 are autopsy photographs showing the victim's neck and the skin pulled away from the victim's skull. Halliburton objected to the admission of these exhibits into evidence on the same ground that he objected to Exhibits 11 and 12, namely, they "[would inflame] the passions of the jury, and that [they] would be highly prejudicial to be
Further we have acknowledged that autopsy photographs often present unique problems because the pathologist has manipulated the body in some way during the autopsy. Corbett v. State, 764 N.E.2d 622, 627 (Ind.2002). And autopsy photographs are generally inadmissible if they show the body in an altered condition. Id. However, "there are situations where some alteration of the body is allowed where necessary to demonstrate the testimony being given." Swingley v. State, 739 N.E.2d 132, 134 (Ind.2000). For example in Fentress v. State, 702 N.E.2d 721, 722 (Ind.1998), we held admissible two photographs that depicted the victim's skull with the hair and skin pulled away from it. 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. Id. at 722. The same is true in the case before us.
The record shows that forensic pathologist, Dr. Joseph Prahlow, conducted the autopsy on Kiska's body. He concluded that the cause of her death was "multiple sharp force injuries." Tr. at 309. During the course of his testimony Dr. Prahlow stated that the blunt force injuries to Kiska's head would be difficult to determine
With respect to the remaining twenty-two photographs about which he now complains, Halliburton concedes that he did not object to these exhibits at trial. Halliburton thus asserts that their admission "constituted fundamental error." Br. of Appellant at 9.
"Failure to object at trial waives the issue for review unless fundamental error occurred." Treadway v. State, 924 N.E.2d 621, 633 (Ind.2010). The fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes procedural default precluding consideration of the issue on appeal. See Benson v. State, 762 N.E.2d 748, 755 (Ind.2002). We have elaborated on the underlying rationale for this exception:
State v. Daniels, 680 N.E.2d 829, 835 (Ind. 1997). Hence, "[t]he `fundamental error' exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). "The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process." Brown v. State, 929 N.E.2d 204, 207 (Ind.2010) (internal quotation omitted). "This exception is available only in egregious circumstances." Id. (internal quotation omitted).
Concerning the twenty-two photographs at issue, we make the following observations. First, at trial Halliburton did not simply "fail" to object to the exhibits. Instead, on eight separate occasions over the course of a five-day trial during which the State offered the exhibits for admission into evidence, and after inquiry by the trial court, Halliburton expressly
Second, other than repeating the refrain that the exhibits were "gruesome," see Appellant's Br. at 3, 6, 8, 9, 10, 11, Halliburton offers no explanation as to how their alleged erroneous admission made a fair trial impossible or constituted clearly blatant violations of basic and elementary principles of due process. See Brown, 929 N.E.2d at 207. Finally, all of the exhibits about which Halliburton complains were either photographs of the crime scene from various angles which aided the testimony of the on-the-scene investigating officers, or autopsy photographs, which the pathologist relied upon during his trial testimony. We conclude the trial court committed no error, let alone fundamental error, by admitting these photographs into evidence.
Next Halliburton complains of error in the introduction of testimony from state's witness Cynthia Bollenbaugh — DeFronzo's mother. Acknowledging he did not object to Bollenbaugh's testimony, Halliburton again invokes the doctrine of fundamental error. And again we repeat the fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes procedural default precluding consideration of the issue on appeal. Benson, 762 N.E.2d at 755. "[This] exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Mathews, 849 N.E.2d at 587. The error claimed "must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process." Brown, 929 N.E.2d at 207 (internal quotation omitted). This exception is available only in egregious circumstances. Id.
Bollenbaugh testified that sometime around 3:30 p.m. on March 18, 2008 Halliburton and her daughter DeFronzo came over to her house after returning from an appointment with a veterinarian. Asserting that Halliburton "had suffered a cat scratch" DeFronzo asked her mother — a registered nurse — to look at the injury. Tr. at 474. Bollenbaugh did so, noted that "it looked like to me a puncture wound," Tr. at 476, cleaned the wound and dressed it. The couple left the house after about an hour. A few minutes later DeFronzo called her mother and told her they "weren't allowed to enter the apartment building. That there was something going on." Tr. at 478. Bollenbaugh later learned that someone had been killed in the apartment next door to her daughter's apartment. The State next inquired: "Did there come a point in time thereafter where you had conversations with your daughter regarding the murder?" Tr. at 480. Bollenbaugh said, "[y]es" and the following exchange occurred:
Tr. at 483-84.
"Indiana Evidence Rule 704(b) prohibits a witness from testifying about whether a
For his last claim concerning the admission of evidence Halliburton asserts the trial court erred in admitting evidence that he committed a burglary of Kiska's apartment a few weeks before she was killed contrary to Indiana Evidence Rule 404(b). The Rule provides:
Rule 404(b) "is designed to prevent the jury from making the `forbidden inference' that prior wrongful conduct suggests present guilt." Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.1999); see also Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003) (noting the purpose behind Rule 404(b) is to "prevent[] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because... he has a tendency to commit other crimes") (internal quotation omitted). "In assessing the admissibility of 404(b) evidence [the] trial court must: (1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act and (2) balance the probative value of the evidence against its
The facts supporting Halliburton's claim are as follows. Prior to trial the State filed in open court and served upon Halliburton its "Formal Notice Of State's Intent To Use 404(b) Evidence," which included evidence that Halliburton committed a burglary of Kiska's residence on or about February 4, 2008. App. at 48.
When the State first proceeded to introduce such evidence through the testimony of investigating officer, Chief Deputy Mike Albin, counsel for Halliburton objected, and outside the presence of the jury declared:
Tr. at 240 (emphasis added). After entertaining arguments of counsel, the trial court ruled: "For now at this point in the trial, the objection is sustained for this evidence to come through this witness at this time." Tr. at 246.
Later during trial the State called DeFronzo as a witness. During the course of her testimony the State asked whether she was "aware of whether or not Tyrice Halliburton had been in ... Sheena's apartment before." Tr. at 545. Counsel objected, the jury was excused, and extensive arguments ensued, which included voir dire of DeFronzo. See Tr. at 546-54. At the conclusion of which the trial court summarized events as follows: "Mr. [Halliburton's Counsel] first objected to Chief Deputy Albin's testimony on the grounds that it was prejudicial and the prejudice would outweigh the probative value as set forth in 404(b). Is that correct?" To which counsel replied: "That's correct, sir." Tr. at 554-55 (emphasis added). The trial court continued: "And you're making that same objection, now, Mr. [Halliburton's counsel], relative to Ms. DeFronzo's testimony that we just heard out of the jury's presence?" Tr. at 555. To which counsel replied: "That's correct." Tr. at 555. When counsel then proceeded to further elaborate, the trial court interjected: "Well, that's what I said. You're saying it has some probative value, but the prejudice outweighs the probative value." Tr. at 555 (emphasis added). To which counsel responded: "Yes. Yes. That's my argument." Tr. at 555. The trial court then gave a lengthy recitation of why it thought the evidence was relevant, and why it would be admissible for the limited purpose of proving motive, intent, preparation, plan, absence of mistake or fact. See Tr. at 556-58. The trial court ultimately concluded: "I think the probative value outweighs the prejudice...." Tr. at 558.
Although counsel for Halliburton objected to the admission of the evidence, the trial court declared: "If the defendant wants a limiting instruction, I will give it. That's a yes. You shook your head." Tr. at 558. To which counsel replied: "That would be a yes, sir." Tr. at 558. After the jury returned the trial court gave a limiting instruction that we will discuss below in Part II. DeFronzo continued her testimony and recounted that in February 2008, Halliburton entered Kiska's home without her permission or consent, told DeFronzo about the incident, and showed her the items he had taken including a laptop computer, a camcorder, a lock box with cash in it, and a DVD player. Halliburton did not tell DeFronzo how he gained entry.
The law in Indiana is well settled that "a defendant may not argue one ground for objection at trial and then raise new grounds on appeal." Turner, 953 N.E.2d at 1058 (quoting Gill v. State, 730 N.E.2d 709, 711 (Ind.2000)). As above recited, at trial Halliburton objected to testimony concerning the prior burglary on grounds that its probative value was outweighed by its prejudicial impact. Essentially Halliburton's objection was based not on Rule 404 but Rule 403 which declares in pertinent part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." Halliburton made no claim at trial that evidence of the burglary did not fit any of the 404(b) exceptions; nor did he contend at trial that evidence of the burglary was bad character evidence prohibited by Rule 404(b). Accordingly Halliburton has waived this claim of error for appellate review.
As indicated above, before DeFronzo resumed her testimony, at Halliburton's request the trial court gave the jury a limiting instruction. Halliburton now contends the instruction was "improper." Br. of Appellant at 20. However, Halliburton did not object to the instruction. And "[n]othing is preserved on appeal where a defendant fails to object to a limiting instruction." Stahl v. State, 616 N.E.2d 9, 13 (Ind.1993). Thus, as with most of Halliburton's claims we view this issue also through the lens of fundamental error.
The instruction at issue declared:
Tr. at 559 (emphasis added).
It is mandatory for a trial court, upon request, to give a limiting instruction or an admonishment where evidence is introduced for limited purposes. See Evid. R. 105 ("When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly."). However, we have long held that "an instruction directed to the testimony of one witness erroneously invades the province of the jury when the instruction intimates an opinion on the credibility of a witness or the weight to be given to his testimony." Pope v. State, 737 N.E.2d 374, 378 (Ind.2000) (quoting Fox v. State, 497 N.E.2d 221, 225 (Ind.1986); see also Taylor v. State, 257 Ind. 664, 278 N.E.2d 273, 275 (1972) ("An instruction in a criminal case is erroneous, as an invasion of the province of the jury, if it intimates an opinion of the credibility of a witness or the weight to be given to his testimony.").
Here the instruction did not imply that the trial court had formed an opinion on the credibility of a witness or the weight the jury was to give the witness' testimony. However, the instruction nonetheless advised the jury that the trial court had made a preliminary determination that the testimony the jury was about to hear is "relevant" and that the trial court had made a preliminary determination that the probative value of such testimony "outweighs any prejudice there may be." Tr. at 559. Although appropriate as an evidentiary ruling, the highlighted portion of the limiting instruction should not have been read to the jury in that it had no role in the matter. "The court and not the jury determines the admissibility of evidence, and the foundation for the admission of secondary evidence is a matter alone for the court and not for the jury." Sprague v. State, 203 Ind. 581, 181 N.E. 507, 512 (1932); Pritchard v. State, 248 Ind. 566, 230 N.E.2d 416, 417 (1967) ("This being a criminal case, the determination of the admissibility of the evidence is a function alone of the trial court...." (citations omitted)).
In the end we conclude the limiting instruction was given in error. However, Halliburton makes no claim the error was fundamental. And we find no such error to have occurred.
We affirm the judgment of the trial court.
DICKSON, C.J., and DAVID, MASSA and RUSH, JJ., concur.
Indiana Pattern Jury Instructions — Criminal 12.17 (2013).
The Indiana Pattern Jury Instructions are prepared under the auspices of the Indiana Judges Association and the Indiana Judicial Conference Criminal and Civil Instruction Committees. Although not formally approved for use, they are tacitly recognized by Indiana Trial Rule 51(E).