MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                   Aug 04 2016, 8:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Clarence Parsley,                                        August 4, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1511-CR-1989
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1111-MR-2018



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016      Page 1 of 12
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Clarence Parsley (Parsley), appeals his conviction for

      murder, a felony, Ind. Code § 35-42-2-1 (2011); and prisoner possessing device

      or material, a Class B felony, I.C. § 35-44-3-9.5 (2011).


[2]   We affirm.


                                                    ISSUES

[3]   Parsley raises two issues on appeal, which we restate as:


      (1) Whether the trial court abused its discretion by admitting a photograph of

      the victim, taken at a wedding years before the incident, to establish his identity

      and the fact that he was alive prior to his murder; and


      (2) Whether the trial court erred by permitting the jury to view Parsley in ankle

      restraints during his testimony.


                           FACTS AND PROCEDURAL HISTORY

[4]   On May 28, 2011, Timothy Knapp (Knapp) and Parsley were both incarcerated

      at the Pendleton Correctional Facility Disciplinary Diagnostic Center and

      housed in Unit 6D of its segregation wing. Knapp occupied Cell 1; while

      Parsley was in Cell 8. On that day, Knapp and Parsley each requested

      recreation time. A correctional officer escorted Knapp to the recreational area,

      where Knapp was patted down before being placed in recreational cell 2.

      Parsley was placed adjacent to Knapp, in recreational cell 3. At the time the


      Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 2 of 12
      altercation between Knapp and Parsley started, no correctional officers were

      present. According to Parsley, Knapp directed “a derogatory statement” to him

      within fifteen minutes of commencing the recreation period. (Transcript p.

      1010). After about forty-five minutes, Parsley noticed Knapp trying to pry a

      piece of fence off of Parsley’s recreational cell. Knapp told him that “he was

      coming over to beat [his] ass” and called him “a snitch” loud enough for the

      other prisoners to hear. (Tr. pp. 1013, 1018). Parsley grabbed part of the fence

      in an effort to prevent Knapp from breaking it. However, determining his

      efforts to be futile, Parsley entered Knapp’s recreational cell and started

      struggling with Knapp. He claimed that Knapp pulled out “a weapon” which

      he started “swinging” at Parsley’s face and neck. (Tr. p. 1029).


[5]   Multiple officers arrived on the scene. They noticed the two men in the same

      recreational cell, with Parsley standing over Knapp and Knapp asking the

      officers to help him because Parsley was “killing [him].” (Tr. p. 598). Parsley

      was holding a metal shank and was repeatedly stabbing Knapp with it. One of

      the officers summoned an emergency response team to intervene. Meanwhile,

      other officers pepper sprayed Parsley and ordered him to drop the shank and

      back away from Knapp, to no avail. Parsley cut Knapp with the shank forty

      times. Eventually, Parsley dropped the shank, backed up to the cuff port, and

      was cuffed by the officers. The paramedic who examined Knapp noted that

      Knapp had no pulse and was not breathing—resuscitation attempts failed and

      he was pronounced dead. Of the forty stab wounds Knapp suffered, five were




      Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 3 of 12
      determined to be lethal and had been inflicted to Knapp’s heart, chest cavity,

      and kidney.


[6]   On November 1, 2011, the State filed an Information, charging Parsley with

      murder and prisoner possessing dangerous device or material. On June 2

      through June 5, 2015, the trial court conducted a jury trial. During the trial,

      Rose Eggers (Eggers), Knapp’s mother, testified. Prior to Eggers taking the

      stand, Parsley objected to her testimony as being cumulative, prejudicial, and

      without any evidentiary value. He also objected to the admission of Knapp’s

      photograph through Eggers’ testimony. The photograph was taken years before

      this incident at Knapp’s brother’s wedding and depicted Knapp from the waist

      up, dressed in wedding attire. Parsley claimed that the earlier introduction of

      Knapp’s autopsy photos juxtaposed with this photograph would create a

      prejudicial effect. The trial court overruled both objections.


[7]   Prior to Parsley testifying, his counsel objected to the continued use of ankle

      restraints that Parsley had worn throughout the trial when seated at the defense

      table. While the restraints were hidden from view at the defense table, they

      would be visible to the jury while seated at the witness stand when the jury

      proceeded into the courtroom. The State objected to Parsley’s request to

      remove the ankle restraints based on the nature of the charged crime and his

      present incarceration for his prior voluntary manslaughter conviction. The trial

      court provided three alternatives to Parsley, i.e., (1) moving the proceedings to

      another courtroom; (2) having him testify from the counsel table; or (3) having

      him testify from the witness stand with a temporary visual blockade. Defense

      Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 4 of 12
       counsel rejected these alternatives as these appeared to treat Parsley different

       from the other witnesses.


[8]    At the close of the evidence, the jury returned a guilty verdict on both Counts.

       On October 19, 2015, the trial court conducted a sentencing hearing and

       sentenced Parsley to sixty years for murder and fifteen years for prisoner

       possessing dangerous device or material. The trial court ordered the sentences

       to run consecutively to each other and consecutively to Parsley’s sentence in a

       different cause.


[9]    Parsley now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION


                                           I. Admission of Evidence


[10]   Parsley contends that the trial court abused its discretion by admitting into

       evidence a photograph of Knapp. The photograph was taken several years ago

       at Knapp’s brother’s wedding and was introduced to the jury through Knapp’s

       mother’s testimony. It depicts Knapp from the waist up, dressed in formal

       wedding attire and without any other individuals present. Parsley maintains

       that “[t]he photograph was then juxtaposed against gruesome autopsy photos to

       enflame the passions of the jury.” (Appellant’s Reply Br. p. 6). Accordingly,

       Parsley argues that the State introduced the photograph as victim-impact

       evidence designed to play to the jury’s sympathy and therefore it was

       cumulative and prejudicial. The State claims that the photograph was relevant


       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 5 of 12
       to prove that Knapp was alive, which was not contested by Parsley, and to

       establish Knapp’s identity. 1


[11]   Because the admission and exclusion of evidence falls within the sound

       discretion of the trial court, this court reviews the admission of photographic

       evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272

       (Ind. 2002). All relevant evidence is generally admissible. Ind. Evidence Rule

       401. Relevant evidence is “evidence having 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 within the evidence.” Id. Relevant

       evidence, including photographs, may be excluded only if its probative value is

       substantially outweighed by the danger of unfair prejudice. Id. “Even 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. Wilson, 765

       N.E.2d at 1272. Photographs, even those gruesome in nature, are admissible if

       they act as interpretative aids for the jury and have strong probative value. Id.


[12]   Because murder involves the taking of a human life, the trier of fact must be

       given some proof that the victim is actually dead but was alive before the date

       and time of the killing. Humphrey v. State, 680 N.E.2d 836, 842 (Ind. 1997).

       “The picture of a victim taken during life is technically relevant to establishing




       1
         In its appellate brief, the State also asserts that the photograph was relevant because it emphasized the size
       difference between Knapp and Parsley and also served as an evaluation of a claim of self-defense. However,
       the State did not advance these grounds before the trial court and they are therefore waived. See Craig v. State,
       883 N.E.2d 218, 220 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016               Page 6 of 12
       that the victim was alive before the murder.” Pittman v. State, 885 N.E.2d 1246,

       1256 (Ind. 2008) (quoting Humphrey, 680 N.E.2d at 842). But, like here, that

       fact is rarely contested and usually easily established by less dramatic evidence.

       Pitman, 885 N.E.2d at 1256. The State introduced the photograph through

       Knapp’s mother while questioning her about the circumstances and the

       moment she was notified of her son’s death. “This smacks of victim impact

       evidence and is to be discouraged due to its possible emotional impact on the

       jury.” Humphrey, 680 N.E.2d at 842.


[13]   When this photograph was introduced, the jury had already seen photographs

       of Knapp’s gruesome injuries. They also had heard the testimony of multiple

       witnesses—three correctional officers, a state police investigator, and a forensic

       pathologist—who had talked to Knapp on the day of the incident and who had

       identified him by sight, height, weight, and appearance. Juxtaposing those

       photographs with a picture of a young, healthy, and celebratory victim created

       a prejudicial impact that outweighed the photograph’s probative value.

       Therefore, we conclude that the admission of Knapp’s photograph was error.


[14]   Nevertheless, if a trial court abused its discretion by admitting the challenged

       evidence, we will only reverse for that error if “the error is inconsistent with

       substantial justice” or if “a substantial right of the party is affected.” Payne v.

       State, 854 N.E.2d 7, 17 (Ind. Ct. App. 2006). Any error caused by the

       admission of evidence is harmless error for which we will not reverse a

       conviction if the erroneously admitted evidence was cumulative of other

       evidence appropriately admitted or if “the conviction is supported by

       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 7 of 12
       independent evidence of guilt such that there is little likelihood that the

       challenged evidence contributed to the verdict.” Id.; Blount v. State, 22 N.E.3d

       559, 564 (Ind. 2014). Evidence was presented that Parsley stabbed Knapp forty

       times, with five of those wounds being fatal. Several correctional officers

       testified that Parsley continued stabbing Knapp even after being ordered to stop

       and after being pepper sprayed. Accordingly, given the “avalanche of

       evidence” of Parsley’s guilt, we conclude that the erroneous admission of

       Knapp’s photograph was harmless. Weedman v. State, 21 N.E.3d 873, 895 (Ind.

       Ct. App. 2014), trans. denied


                                              II. Ankle Restraints


[15]   Next, Parsley contends that the trial court abused its discretion when it forced

       him to testify while wearing ankle restraints. A defendant has the right to

       appear in front of a jury without physical restraints, unless such restraints are

       necessary to prevent the defendant’s escape, to protect those in the courtroom,

       or to maintain order during trial. Bivins v. State, 642 N.E.2d 928, 936 (Ind.

       1994), cert. denied, 516 U.S. 1116 (2000). This right springs from the basic

       principle of American jurisprudence that a person accused of a crime is

       presumed innocent until proven guilty beyond a reasonable doubt. Wrinkles v.

       State, 749 N.E.2d 1179, 1193 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002). For

       this presumption to be effective, courts must guard against practices that

       unnecessarily mark the defendant as a dangerous character or suggest that his

       guilt is a foregone conclusion. Id. As such “the facts and reasoning supporting

       the trial judge’s determination that restraints are necessary must be placed on

       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 8 of 12
       the record. 2 Id. (citing Coates v. State, 487 N.e.2d 167, 169 (Ind. Ct. App. 1985),

       overruled on other grounds by Hahn v. State, 533 N.E.2d 618 (Ind. Ct. App. 1989)).

       Typical methods of restraint include handcuffs, shackles, security chairs, and

       gagging a defendant. Wrinkles, 749 N.E.2d at 1193. An order to restrain a

       defendant is reviewed for an abuse of discretion. Forte v. State, 759 N.E.2d 206,

       208 (Ind. 2001).


[16]   During a pretrial hearing, the parties discussed the security measures to be

       taken during the trial. Parsley’s classification within the correctional facility

       was high and, even at the time of trial, he remained segregated from the general

       prison population. Parsley’s counsel informed the trial court that “[i]f it’s

       simply ankle restraints, we don’t object.” (Tr. p. 284). “I want his arms to be

       open so he can take notes, consult with us. We’re not afraid of him.” (Tr. p.

       285). But he cautioned that he did not agree to his client wearing ankle

       restraints when “he takes the stand.” (Tr. p. 284). The State objected to taking

       the ankle restraints off on the stand, but suggested to place Parsley on the

       witness stand outside the presence of the jury “so nobody see them.” (Tr. p.

       284). The parties also noted that a Department of Correction S.E.R.T. team of

       six officers dressed in black suits would be present in the courtroom during the

       proceedings to monitor Parsley.




       2
         In his reply brief, Parsley, for the first time, asserts that the trial court’s record is insufficient. However,
       parties may not raise an issue for the first time in a reply brief. See, e.g., Sisson v. State, 985 N.E.2d 1, 20 n.9
       (Ind. Ct. App. 2012), trans. denied. Accordingly, Parsley waived the allegation.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016                    Page 9 of 12
[17]   Prior to Parsley taking the witness during the trial, the parties again discussed

       Parsley’s ankle restraints, which had been invisible to the jury under the defense

       counsel’s table. However, due to the design of the witness stand, when

       testifying, the jurors, especially those seated “in the far right hand corner of the

       jury box[,] are likely going to be able to see [Parsley’s] feet and shackles when

       he testifies.” (Tr. p. 976). The trial court agreed that nobody “would dispute

       that it’s a possibility that if the jurors look down there they’re going to see his

       shackles as they’re coming into the jury box.” (Tr. p. 978). The State objected

       to removing the ankle restraints “given the nature of this crime, and the reason

       that he is currently incarcerated” for a voluntary manslaughter offense. (Tr. pp.

       981-82). When Parsley repeated his objection to testifying wearing his ankle

       restraints, the trial court offered him three alternatives: (1) Parsley could testify

       from the counsel table; (2) the proceedings could be moved to a different

       courtroom with a witness box that was more discreet; or (3) he could testify

       from the witness stand “with the shackles on but with some temporary visual

       blockade[.]” (Tr. p. 977). Parsley rejected all offered options because he did

       not want to be “treated any different than any other witness . . . that would

       make the jury treat his testimony differently.” (Tr. p. 977). Accordingly,

       Parsley elected, with objection, to testify at the stand with his shackles on.

       Defense counsel further noted


               [p]art of our reason in doing this is there are six (6) S.E.R.T.
               Team members here. I don’t think that there’s probably any
               juror that hasn’t realized that they’re there with [Parsley] as
               security personnel, not as his friends. And so I doubt that they
               don’t realize that he’s in custody anyway.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 10 of 12
       (Tr. p. 980).


[18]   “Protection of those in the courtroom is a recognized reason for restraining a

       defendant, and the facts and circumstances before the trial court support that

       rationale.” Overstreet v. State, 877 N.E.2d 144, 160 (Ind. 2007), reh’g denied.

       Here, Parsley wore ankle restraints during the trial proceedings, which were

       invisible to the jurors, except for when he was testifying from the stand. While

       the trial court acknowledged the likelihood of some jurors noticing the shackles,

       Parsley does not direct us to any evidence establishing that the jurors actually

       saw him shackled. Parsley had a high security classification, had been

       convicted of manslaughter, and was standing trial for a particular violent

       murder. At all times, six S.E.R.T. members were present in the courtroom to

       monitor Parsley’s behavior. Accordingly, even though Parsley behaved at trial,

       he had a history of violent acts committed against others such as to make him a

       security risk. See Forte, 759 N.E.2d at 208 (a trial court may consider the

       defendant’s history of behavior outside of the courtroom when deciding

       whether shackling would be necessary during trial). Moreover, the jury was

       aware that Parsley was incarcerated in a maximum security prison because that

       was the setting of the current charge. Therefore, “[i]n a trial such as the case at

       bar, jurors would reasonably expect that any one in police custody would be

       restrained.” Malott v. State, 485 N.E.2d 879 (Ind. 1985). We cannot conclude

       that Parsley’s presumption of innocence was undermined in a significant way.

       See Wrinkles, 749 N.E.2d at 1193. “A defendant is entitled to a fair trial, not a




       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 11 of 12
       perfect one.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014). The trial court did

       not abuse its discretion.


                                               CONCLUSION

[19]   Based on the foregoing, we conclude that it was harmless error to admit a

       photograph of the victim, taken at a wedding and years before the incident, and

       the trial court did not abuse its discretion by permitting the jury to likely view

       Parsley in ankle restraints during his testimony


[20]   Affirmed.


[21]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 48A02-1511-CR-1989 | August 4, 2016   Page 12 of 12
