ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

David M. Henn					Jeffrey A. Modisett

Indianapolis, Indiana			Attorney General of Indiana

							Randi E. Froug

							Deputy Attorney General

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

LAVELLE MALONE,    				)

							)

	Appellant (Defendant Below),	)

							)

		v.					)  Cause No. 49S00-9712-CR-678

							)

STATE OF INDIANA,				)

							)

	Appellee (Plaintiff Below).	)

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Nancy L. Broyles, Judge Pro Tem

Cause No. 49G04-9606-CF-089351

October 21, 1998

SHEPARD, Chief Justice.

	Appellant Lavelle Malone was convicted of murder, Ind. Code 

§ 35-42-1-1, and carrying a handgun without a license, a class C

felony, Ind. Code § 35-47-2-1.  He was also found to be a habitual offender, Ind. Code § 35-50-2-8.  The trial court imposed the

presumptive sentence for murder, fifty-five years, and added thirty

years for the habitual offender finding.  It imposed a concurrent

eight-year sentence for the handgun. 

	Malone's counsel, David M. Henn, has prepared an excellent

brief on his behalf in which he raises five issues:

1.  	Whether the foundation was adequate to admit various 	items of physical evidence;

2.  	Whether prosecutorial misconduct induced the trial  	court to admit certain evidence;

3.  	Whether it was error to admit two photographs of the 	victim's wounds;

4.  	Whether Malone's demand for the regular trial judge  	instead of the judge pro tempore should have been 

	granted; and

5.  Whether the court erred by admitting the prior 

	statement of a witness.

Factual Background and Procedural History

	On June 19, 1996, Malone, his sister Legina Adams, her son,

and the victim Clifton Hollonquest were at the home of

Hollonquest's mother.  The group departed in a gray station wagon

owned by Tammi Ferguson, loaned to Malone by Ferguson's boyfriend,

Edward Bodie.  Bodie had loaned the car to Malone without

Ferguson's permission.  Malone first dropped off Legina Adams and

her son at their house, then drove to the corner of 28th Street and Clifton Avenue.  At the scene, witnesses saw Malone and Hollonquest

standing outside the car, apparently arguing.  Malone fired one

shot at Hollonquest, and then cradled him in an attempt to stop the

bleeding.  Finally, Malone re-entered the station wagon and left

the scene.    

	After the shooting, the police learned that Malone may have

been at the home of his girlfriend, Diane Kelly.  He occasionally

stayed overnight at Kelly's home during the month before the

murder, and was there on the day of the crime.  Upon execution of

a search warrant for Kelly's home, the police discovered six live

.38 caliber lead bullets in a dresser drawer.  Kelly neither owned

a gun, nor knew how the bullets ended up in her home.  The bullets

were admitted at trial.  

	The police also collected blood samples from the sidewalk

where the victim was shot, the victim's body, the defendant, and 

the station wagon that the defendant drove.  Those samples were

also admitted into evidence.  

	The State planned to present the testimony of a DNA expert,

but it misrepresented the witness's unavailability, thereby causing

the court to order an otherwise unnecessary recess.  While the

testimony was not excluded as a sanction for the misrepresentation,

it was excluded on another basis.

	Malone's sister told the police shortly after the murder, that

she saw Malone with a gun that day.  At trial, she asserted that

she could not remember many of the events surrounding the shooting,

including that statement.  The State offered the contents of her

prior statement for impeachment purposes.The contents of her prior statement were

admitted over Malone's objection that he could not effectively

interrogate his sister on the statement due to her memory lapse.  

	Finally, the State entered into evidence two photographs of

the wound, one a close view, and the other a view of the victim's

upper body.  The latter picture also depicted an incision made by

medical personnel at the hospital.    

	Judge Patricia Gifford heard a motion in limine, but appointed

Master Commissioner Nancy Broyles as judge pro tempore for the day

of trial.  Master Commissioner Broyles ruled on the admissibility

of all the evidence described above.    

I.  The Foundation for the Bullet and Blood Exhibits

	Malone first claims that the State's blood and bullet exhibits

were improperly admitted because counsel failed to lay a proper

foundation.

	A foundation for physical evidence is established where (1) a

witness can testify that the exhibit is "like" an item associated with the crime, and (2) there is a showing that the exhibit is

connected to the defendant and the commission of the crime.  Evans v. State, 643 N.E.2d 877, 881 (Ind. 1994).  Malone challenges the bullet and blood exhibits by claiming they are unconnected to the

defendant and the crime.   

	To be properly admissible, real evidence need only constitute

"a small but legitimate link in the chain" of evidence connecting

the defendant with the crime.  Andrews v. State, 532 N.E.2d 1159, 1163 (Ind. 1989).  A trial court may properly admit evidence "even

where there is only a slight tendency to connect the defendant with

the offense."  Sons v. State, 502 N.E.2d 1331, 1332 (Ind. 1987).  Here, the bullet and blood exhibits were properly admitted because

they legitimately tend to connect the defendant with the crime by

way of reasonable inferences.  See Samaniego v. State, 553 N.E.2d 120, 124 (Ind. 1990);  Underwood v. State, 535 N.E.2d 507, 517 (Ind. 1989).

	As for the .38 caliber bullets found at the home of Malone's

girlfriend, the State demonstrated that the victim was killed with

a .38 caliber bullet.  Malone's girlfriend testified that he stayed

at her home during the month of the murder, and that he was at her

home on the day of the crime.  She further testified that she did

not own a gun or know from where the bullets came.  The bullets

were properly admitted because their caliber and location create a

reasonable inference that Malone stored .38 caliber bullets at his girlfriend's house and then used some of them to load the gun with

which he killed the victim.

	Malone does not specify which of the five blood exhibits he

thinks were wrongly admitted.  The State offered samples of blood

from the sidewalk where the victim's body was found, the victim's

body, Malone, and the station wagon that Malone drove near the time

of the murder.  All of these exhibits, however, were admissible as

corroboration of the events constituting the crime:  that Malone

was at the scene, committed the murder, tried to stop the victim's

bleeding, then drove away in the station wagon.  See Underwood, 535 N.E.2d 517 (court properly admitted photographs that corroborated

testimony of the sequence of events that constituted the crime). 

The blood exhibits were properly admitted.  

II.  Prosecutorial Misconduct

	Malone claims that the State's misrepresentation about the

unavailability of its DNA witness was prosecutorial misconduct that

placed him in grave peril.  

	This Court has set out a two part test for reviewing

prosecutorial misconduct claims.  We consider first whether the

prosecutor committed misconduct and second whether the alleged

misconduct placed the defendant in a position of grave peril.  Robinson v. State, 693 N.E.2d 548, 551 (Ind. 1998).  "'The gravity of the peril is determined by considering the probable persuasive

effect of the misconduct on the jury's decision, rather than the

degree of the impropriety of the conduct.'"  Id. (quoting Willoughby v. State, 660 N.E.2d 570, 582 (Ind. 1996).

	The State apparently misrepresented to the trial court that

its DNA expert was unavailable until late in the week, causing the

court to permit a recess until the witness became available.  It is

unclear whether the trial court found that this misrepresentation

amounted to prosecutorial misconduct.  (Compare R. at 789 (where the court called the State's action prosecutorial misconduct) with R. at 939 (where the court commented that the action was not

misconduct).)  In any event, the trial court refused to exclude the

testimony of the DNA expert on that ground, (R. at 789), but rather

excluded the testimony on another basis.1  

	The DNA testimony could not have had any persuasive effect on

the jury, because the jury was never allowed to hear it.  Malone

claims, however, that the prosecutor's misrepresentation prompted

the court to admit other "blood evidence" on the basis that its

connection to the defendant and to the crime would be established

once the DNA evidence was admitted.  As discussed above, the blood

exhibits were properly admissible of their own accord, and they did not require the DNA testimony to establish their foundation or make

them relevant.  Therefore, the misrepresentation had no improper

effect on the jury's decision, and did not place Malone in grave

peril.  

III.  Prejudicial Effect of the 

Autopsy Photograph

	Malone objects to the admission of an autopsy photograph that

shows an incision created by medical personnel, claiming that its

gruesome nature substantially outweighs its probative value.  

	Autopsy photographs are admissible if (1) they provide

relevant evidence, and (2) their probative value is not

substantially outweighed by their tendency to impassion the jury

against the defendant.  Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996), reh'g denied.  Use of the photograph to illustrate the pathologist's testimony satisfies the initial relevancy

requirement.  See Harrison v. State, 644 N.E.2d 1243, 1256 (Ind. 1995); Ind.Evidence Rule 401 (relevant evidence is evidence having any tendency to make the existence of a fact of consequence more or less likely).  The question then becomes one of balancing probative

value against prejudicial effect, and a trial court's ruling on

this issue will not be disturbed absent an abuse of discretion.   Robinson v. State, 693 N.E.2d 548 (Ind. 1998).

	The trial court exercised appropriate discretion here.  The

photograph is hardly gruesome; it simply depicts the wound that

caused the victim's death and one incision made by medical

personnel at the hospital.  The State guarded against possible

prejudice resulting from the incision by requesting that the

pathologist explain the origin of the wound.  Malone was not

prejudiced by the admission of the photograph.

	Malone also claims that the photograph is cumulative, because

another photograph, admitted without objection, depicted the wound.

We note that the photographs are different.  The undisputed

photograph, State's Exhibit 49, depicts a close view of the wound,

while the disputed photo, State's Exhibit 48, depicts the victim's

upper body, giving a perspective on the location of the wound on

the body.  The photographs are not really cumulative, and they are

not the stuff of reversible error.

IV.  Appointment of Commissioner Broyles

as Judge Pro Tem

	Malone challenges the substitution of a judge pro tempore, Master Commissioner Nancy Broyles, for the regular sitting judge,

Judge Patricia Gifford.  

	Malone has made no argument, either at trial or on appeal,

that Master Commissioner Broyles failed to satisfy the requirements for appointment of a pro tem set out in Indiana Trial Rules 63(C) or

(E). 

	Instead, Malone cites a sentence in Rogers v. State in support of his contention that, in addition to the requirements of Rule 63,

a specified level of "familiarity" is required of judges  pro tempro tem..  570 N.E.2d 906, 908 (Ind. 1991) ("In addition, [the judge pro tem]

was familiar with the case in that he heard the evidence at the

post-conviction hearing.").  That statement in Rogers was meant to suggest why the particular pro tem had been an appropriate choice;

it was not intended to prescribe a requisite level of preparation

for or understanding of a case.  While the outer boundary of due

process may require that a judge be "duly advised in the premises,"

the evidentiary arguments presented to the pro tem were such that

the line was certainly not crossed here.  Master Commissioner

Broyles properly presided over Malone's trial.  

V.  The Admission of Adams' Prior Inconsistent Statement

	Malone contests the admissibility of statements that his

sister Legina Adams made to a police officer shortly after the

murder.  At trial, counsel for Malone objected to use of her former

inconsistent statements by saying that because she claimed that

mental illnesses rendered her unable to remember all the questions

she had answered earlier, he would be unable to "interrogate the witness thereon" effectively, citing the requirements of Evidence

Rule 613(b).

	On appeal, Malone argues that Ms. Adams' prior statements were

hearsay.  A party may not object on one ground at trial and seek reversal on appeal using a different ground.  See Grinstead v. State, 684 N.E.2d 482, 486 n.6.  The issue is waived.  Id.

Conclusion

	We affirm the judgment of the trial court.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.