Jones v. State

333 N.E.2d 823, 165 Ind. App. 695, 1975 Ind. App. LEXIS 1305
Indiana Court of Appeals·Decided September 16, 1975·No. No. 2-275A39·Published·Cited by 1 cases

Opinion

Lowdermilk, J.

The defendants, Clay Jones and his wife, Ima Jean Jones, were charged with murder in the first degree. The jury returned a verdict of guilty of voluntary manslaughter as to each defendant. The only issues presented by their appeal concern the allegedly erroneous admission of certain items of evidence.

FACTS:

An examination of the evidence most favorable to the State shows that defendant Clay Jones was at the home of one Benton Franldin on Sunday morning, February 17, 1974. Franklin, the deceased Jim Hughes, and two other witnesses were also present. A comment was made by Hughes that caused an argument to ensue between him and the defendant, Jones.

After a short time the defendant left the house, but returned forty-five minutes later accompanied by his wife.

When the two entered the house, Clay Jones was armed with a shotgun and Ima Jean Jones was carrying a rifle. Franklin met them at the kitchen door, and immediately grabbed Clay’s shotgun, which discharged into the ceiling. At the same moment Clay shouted “shoot the man in the white shirt.” Ima Jean fired her rifle eight or nine times, killing Hughes and wounding Franklin.

Ima Jean and Clay then left the house, took their son who had been waiting in the car to a relative’s home, and then went to the police station. There Ima Jean signed a waiver granting permission for the police to seize the two weapons that were in the trunk of their car. The legality of the sub[697]*697sequent search and seizure of these weapons is not challenged here.

The defendants base their appeal on the allegedly erroneous admission into evidence of the following exhibits:

1. A .22 caliber slug and two shell casings found at the scene of the crime, challenged because of an alleged defect in the proof of the chain of custody;
2. Two photographs of the decedent, challenged because they were allegedly gruesome and were offered only for the purpose of inflaming the jury;
3. One photograph of the scene of the crime, challenged because it was allegedly cumulative;
4. A photograph of a shotgun shell casing, challenged because it had allegedly not been connected to the defendant;
5. The shell casing itself that is pictured in the above photograph, challenged because it was allegedly cumulative.

I.

The first items of evidence said to be improperly admitted are the .22 caliber slug and two shell casings found at the scene of the crime. The defendants claim that a proper chain of custody was not established as to these items, inasmuch as the officer in charge of the property room at the Anderson City Lockup, one Lt. Monahan, did not testify at trial. Defendants rely on Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652, for support of their contention.

Under the rule established in that case, a foundation must be laid to connect the exhibit offered into evidence with the defendant on trial. The necessary link that needs to be shown is the continuous whereabouts of the exhibit from the time it came into the possession of the police until it was laboratory tested or introduced at trial. The purpose of the rule is to avoid any claim of substitution, tampering, or mistake. Jones v. State (1973), 260 Ind. 463, 296 N.E.2d 407.

The rule in Graham v. State, supra, was explained by the [698]*698Supreme Court in the case of Guthrie v. State (1970), 254 Ind. 356, 260 N.E.2d 579, wherein that court said:

“. . . The question was simplified in the Graham case because there was a clear break in the chain for a six day period. However, where as here, the state has introduced evidence which strongly suggests the exact whereabouts of the evidence, the issue becomes one of probabilities.
Appellee has cited several cases the holdings of which indicate that all possibility of tampering need not be excluded; upon reasonable assurance that the exhibit has passed through the various hands in an undisturbed condition its admission is proper and any remaining doubts go to its weight only. . . .” 254 Ind. at 363, 260 N.E.2d at 584.

In the case at bar, as in the Guthrie case, the whereabouts of the items of evidence is not in question. The evidence introduced by the State strongly suggests that the items were in the property room during the time here relevant. The issue therefore turns on a consideration of the probability that tampering, substitution, or mistake occurred in this case.

In weighing such probabilities, the Guthrie case once again presents some important distinctions. First, evidence involved in the case at bar is of the type that is not easily tampered with. In Guthrie, the distinction was made between a drug, such as heroin, which is similar in form to baking powder or sugar, and other evidence, such as the glass slides that were admitted in the Guthrie case. The court found that these glass slides would not be as susceptible to tampering as seized drugs would be in the typical narcotics arrest.

Indeed, shell casings retrieved from the scene of the crime have just recently been held to be not of a fungible nature, and thus not subject to the same rigid chain of custody requirements that drug specimens would ordinarily be subject to. Loza v. State (1975), 263 Ind. 124, 325 N.E.2d 173.

Second, in the case at bar, as in the Guthrie case, there is no indication that evidence was anywhere other than in the [699]*699property room under lock and key. In the Graham case the evidence was removed from the storage area, and no accounting at all was made for its six-day disappearance. Here, the possibility of the evidence coming into contact with the general public is highly remote.

Finally, the evidence presented in this case did not represent proof of an element essential to the conviction of the defendants, as would be the typical case in a charge of possession or sale of narcotics. Indeed, the evidence in this case was in fact only cumulative, as a separate slug found under the body of the deceased was admitted into evidence without objection.

It has been held that the mere possibility that the evidence might have been tampered with does not make the evidence totally objectionable. Jones v. State, supra.

This court has held that merely placing the evidence on a shelf in the police laboratory where eight different persons had access to the evidence, none of whom testified in court, would not of itself establish a break in the chain of custody. Telfare v. State (1975), 163 Ind. App. 413, 324 N.E.2d 270. Nor is evidence objectionable because it was locked in an office by one police officer, and removed therefrom by other officers. McMinoway v. State (1973), 260 Ind. 241, 294 N.E.2d 803.

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Jones v. State, 333 N.E.2d 823, 165 Ind. App. 695, 1975 Ind. App. LEXIS 1305 (Ind. Ct. App. 1975).

333 N.E.2d 823 (Jones v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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