Cold Case in Ellyson

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Cold Case in Ellyson

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It has come to my attention that on January 30, , my office mistakenly faxed to your office information concerning Cenessa Tackett's medical treatment to help her deal with the trauma resulting from the murder of Harry and Teresa Hye by Michael Browning and Shane Pethal [sic] and their attempt to murder her. Cenessa has not authorized these records to be released to your office and I do not have the authority to release them to anyone.

Accordingly, please seal the documents and return them to me immediately. As there was no waiver of the privilege, the court ruled Browning was not entitled to the documents. Separately, the trial court reviewed the documents under seal and ruled that they contained no exculpatory material to which Browning would be entitled under Brady v.

Browning claims the trial court's decision regarding waiver was error, and asks this Court to review the exhibit to determine whether it contains any material favorable to him. He relies on Hooper v. State, 54 where we upheld a trial court decision to require a physician to testify against the defendant even though the defendant refused to waive the privilege for the doctor's testimony.

Before the State called the doctor, Hooper had provided the State with his report in discovery and admitted the report as mitigating evidence against the death penalty. This Court ruled that, by giving the State the doctor's report and admitting it at trial, Hooper had disclosed a significant part of the privileged material and waived his privilege regarding his doctor's testimony.

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Garrett did not exercise the privilege and could not waive it. She inadvertently gave the documents to the prosecutor, who had not asked for them and did not look at them until Browning asked generally for any mental health records. Garrett immediately asked for the records' return, noting that Cenessa had not authorized their release.

While Cenessa may or may not have voluntarily disclosed other medical records, the record shows she explicitly refused to waive her privilege as to the Indiana records. The trial court did not err in finding that there was no waiver of the privilege and Browning was not entitled to the records. We determine that the documents contain nothing material either to guilt or punishment. Browning objected to admission of these photographs at trial and has preserved this error for appeal. The admission of photographs is within the trial court's discretion and will not be disturbed absent abuse of discretion.

The photographs of Cenessa showed the nature and extent of her injuries, duct tape on her hands and hair, and soot on her face and hands.

They corroborated the testimony of Cenessa's treating physician and emergency medical personnel as well as her own account of the crime. All these photographs were relevant, and not so gruesome that the jury could not view them impartially. He claims this Court has held that it is error to admit gruesome photographs showing a victim's burnt body where the victim died of other causes.

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This is not the case. In Livingston v. The photographs were taken as Teresa's body was uncovered at the scene of the crime. They show the crime scene and corroborate Cenessa's description of where Teresa was shot, as well as her account of the duct tape around Teresa's head, wrists and ankles. While extremely unpleasant, these photographs do not provoke the visceral, unreasoned emotional response this Court described in Livingston. They were not so repulsive that the jury could not view them impartially.

The trial court did not abuse its discretion in admitting these photographs. The jury could have found any of these alternatives. The jury returned a general verdict of murder.

Cold Case in Ellyson - AbeBooks - Susan Anderson:

Under these circumstances, case law overwhelmingly dictates that the Court will treat the convictions as ones for felony murder, and dismiss the underlying felonies. He admits that counsel for both sides may discuss reasonable inferences from the evidence, and we will find error only if a grossly unwarranted argument affects the defendant's rights. The presentation included photos of the burning home, Harry at the hospital, and Teresa's remains at the scene.

We have already determined that the photographs used in this presentation were properly admitted see Proposition VII. Exhibits properly admitted at trial may be used in closing argument. Browning failed to object, waiving all but plain error. This Court has upheld similar arguments which describe a victim's experience. As it neither manipulates nor misstates the evidence, there is no plain error. This cured any error.


His objections to the two former terms were overruled, and he failed to object to the other comment. We have looked on name-calling with disfavor as an unwarranted expression of personal opinion. During the first stage closing, prosecutors referred to Browning's theory of defense as ridiculous, absolutely preposterous, and half-baked. Later, the State said Browning was desperate and would blame anyone to get out of trouble. The prosecutor also argued Browning blamed the crime on everyone who took the stand.

Browning did not object to these comments and has waived all but plain error. These are all reasonable inferences from the evidence.