FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Mar 22 2012, 9:25 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE
SHERIFF KENNETH A. MURPHY:
JOHN H. WATSON
Sunman, Indiana WAYNE E. UHL
Stephenson Morow & Semler
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
TOWN OF BROOKVILLE, INDIANA:
JAY D. PATTON
Schroeder, Maundrell, Barbiere & Powers
Mason, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DONALD L. WEBB, III, )
)
Appellant-Plaintiff, )
)
vs. ) No. 24A04-1104-CT-197
)
SHERIFF KENNETH A. MURPHY AND )
TOWN OF BROOKVILLE, INDIANA )
)
Appellees-Defendants, )
)
TERRY MITCHUM, )
)
Appellee-Counterclaim Plaintiff. )
APPEAL FROM THE FRANKLIN CIRCUIT COURT
The Honorable John D. Mitchell, Special Judge
Cause No. 24C01-0704-CT-153
March 22, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Donald L. Webb, III, appeals from the judgment entered in favor of the Franklin
County Sheriff and the Town of Brookville (collectively “the Defendants”) on his claims
of battery and intentional infliction of emotional distress. He contends that the trial court
committed fundamental error by admitting testimony and evidence of his prior aggressive
acts and abused its discretion by exempting the Defendants’ expert witness from a
separation of witnesses order. Finding that the fundamental error doctrine does not apply
and that the trial court did not abuse its discretion in exempting the Defendants’ expert
from the separation of witnesses order, we affirm.
Facts and Procedural History
On July 22, 2006, Webb went to the Franklin County Fair on a small motor
scooter. He was twenty-five years old at the time and mildly mentally handicapped,
functioning at the level of a ten- to twelve-year-old child. His parents had left the home
that evening to go to dinner at a nearby casino, and they directed Webb to stay home. He
did not listen and instead went to the fair.
While at the fair, Webb was approached by several younger children
approximately twelve to fifteen years old. They asked for money and Webb refused.
One of the children got behind Webb and grabbed for his wallet. Webb turned around,
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grabbed the child, and immediately released him. A woman, apparently the child’s
mother, saw the incident and called the police. Webb immediately left.
Brookville Police Department Officers Mitchum and Campbell located Webb
driving down the road and turned on their lights and siren. Webb did not stop for several
blocks. When he finally pulled over, Webb appeared agitated and said that he wanted to
go home. He was directed to step to the front of the police car but instead walked back to
his scooter as if he were going to leave. At that time, Officer Mitchum told Webb he was
under arrest and attempted to pat him down for officer safety. Webb cursed and
physically resisted. The officers cuffed Webb’s hands behind his back and told him if he
promised to calm down, they would cuff his hands in front of him rather than behind his
back. Webb agreed, but when the officers removed one of the cuffs, Webb again tried to
pull away.
Meanwhile, Franklin County Sheriff’s Deputy Adam Henson arrived at the scene.
Webb was re-cuffed, and Officer Mitchum and Deputy Henson attempted to place Webb
in the back seat of the Brookville police car. Webb refused to sit down, so Deputy
Henson pushed him into a seated position. Webb refused to put his legs into the car,
struggling against the officers and kicking Officer Mitchum’s knee. Deputy Henson
retrieved his taser and warned Webb that he would use it if Webb did not stop kicking.
Webb told Deputy Henson to go ahead and tase him.
Officer Mitchum continued to push Webb into the car and Webb bit him on the
arm. In an attempt to get Webb to release his bite, Deputy Henson pushed the taser into
Webb’s shoulder and discharged it. Webb immediately released his bite but continued to
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struggle and tried to bite Deputy Henson. In an effort to get Webb’s legs into the car,
Deputy Henson pressed the taser against the outside of Webb’s right leg and discharged it
again; Webb’s struggles caused the taser to move around and strike him in multiple
locations.
As a result of this incident, Webb sued the Defendants for battery and intentional
infliction of emotional distress, and Officer Mitchum counterclaimed for assault and
battery. Trial began on March 14, 2011. The trial court granted the Defendants pretrial
motion that its expert witness, Samuel Faulkner, be excluded from any witness-separation
order. The Defendants then moved for a separation of witnesses order, which was
granted. Webb then also moved for and was granted the same exemption for his expert
witness, Dr. John Ehrmann.
During trial, Webb’s mother testified to her son’s demeanor, saying that he
responds to negative events by being upset, he laughs inappropriately when nervous, and
he has temper tantrums. She also testified that she and her husband never had any trouble
physically controlling Webb and never had to strike him. Tr. p. 107-08, 120-21. On
cross-examination, she was asked about treatment records from Whitewater Valley Care
Pavilion showing that Webb was previously evaluated for aggression, which she said she
did not remember. Webb’s counsel objected on the ground that the question was outside
the scope of direct examination, and the objection was overruled. Id. at 121-22. The
reports were not offered into evidence. On redirect, Webb’s mother testified that Webb
had never become physical with her but that he will match any force that is brought to
him. Id. at 125-26.
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Webb’s father also testified to his son’s demeanor and character, saying that he
could become stubborn, stiff, and defiant and the best way to deal with Webb when he is
mad is to talk to him calmly. Id. at 146-47. On cross-examination, he was asked without
objection if Webb had ever become physical with him, and he responded that this had
occurred only once. Id. at 149-50. He was also asked about the same treatment records
from Whitewater Valley Care Pavilion, and he responded that he did not recall those
records either. No objection was made to this line of questioning, and the reports were
not introduced into evidence. Id. at 152-53.
Webb’s expert witness, Dr. Ehrmann, testified about Webb’s prior psychological
and medical-treatment records. He also testified as to how the police officers, in his
opinion, should have acted in order to de-escalate the situation with Webb. On cross-
examination, Dr. Ehremann was asked about the report from Whitewater Valley Care
Pavilion, and he testified that he reviewed it in reaching his opinion about Webb’s
condition. He was also asked, without objection, about statements in the report of Webb
having trouble with his temper. The report was admitted into evidence without objection.
After five days of trial, the jury returned a judgment in favor of the Defendants on
Webb’s claims of battery and intentional infliction of emotional distress, and a judgment
in favor of Officer Mitchum on his counterclaim for assault and battery. The jury
awarded no damages on the counterclaim.
Webb now appeals.
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Discussion and Decision
Webb raises two issues on appeal: (1) whether the trial court committed
fundamental error when it admitted testimony and evidence of his prior acts of aggression
and (2) whether the trial court erred in allowing the Defendants’ expert witness to remain
in the courtroom although a separation of witnesses had been granted.
I. Evidence of Prior Acts
Webb contends that the trial court erred in admitting testimony and evidence about
his past aggressive conduct in violation of Indiana Evidence Rule 404(b), which states
that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith . . . .” However, because
Webb did not object to the admission of this evidence at trial, he has waived the issue for
appellate review. See Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003) (“Failure to
object at trial to the admission of evidence results in waiver of that issue on appeal.”).
Nevertheless, he claims the admission of this evidence constitutes fundamental error.
The fundamental error doctrine is an exception to the general rule that the failure
to object at trial constitutes a procedural default precluding consideration of the issue on
appeal. Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind. 2008). The 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. Matthews 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.
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Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. This exception is
available only in egregious circumstances. Id.
Fundamental error is not applicable in this case. We have applied this doctrine
only to very limited situations in civil cases, including the termination of parental rights
and mental-health commitment. See S.M. v. Elkhart Cnty. Office of Family & Children,
706 N.E.2d 596, 599 n.3 (Ind. Ct. App. 1999) (citing In re L.B., 616 N.E.2d 406, 407
(Ind. Ct. App. 1993), trans. denied; In re Commitment of Gerke, 696 N.E.2d 416, 421
(Ind. Ct. App. 1998)). Since this case involves neither liberty interests nor parental
rights, we decline to extend the fundamental error doctrine to this type of civil case in
which there are only monetary interests at stake.
Even if fundamental error were to apply to this case, we find that the admission of
Webb’s past aggressive conduct does not rise to the level of fundamental error. Evidence
that is otherwise inadmissible under Evidence Rule 404(b) may become admissible
“when the defendant ‘opens the door’ to questioning on that evidence.” Jackson v. State,
728 N.E.2d 147, 152 (Ind. 2000). Webb’s counsel opened the door to this evidence by
questioning Webb’s parents about his demeanor and tendencies and by using his expert
witness to testify to Webb’s lack of violent history and the best way to approach Webb in
a confrontational situation. It was therefore not fundamental error for the Defendants to
cross-examine Webb’s parents and expert witness about Webb’s demeanor and
tendencies and to offer evidence to rebut those claims. Once the door is opened to this
line of questioning, it is not fundamental error for opposing counsel to take advantage of
the opportunity.
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The trial court did not commit fundamental error when it admitted testimony and
evidence of Webb’s prior acts of aggression.
II. Separation of Witnesses
Webb also contends that the trial court erred in allowing the Defendants’ expert
witness, Faulkner, to remain in the courtroom although a separation of witnesses had
been granted. Separation of witnesses is governed by Indiana Evidence Rule 615, which
says:
At the request of a party, the court shall order witnesses excluded so that
they cannot hear the testimony of or discuss testimony with other witnesses,
and it may make the order on its own motion. This rule does not authorize
the exclusion of (1) a party who is a natural person, or (2) an officer or
employee of a party that is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is shown by a
party to be essential to the presentation of the party’s cause.
Webb argues that the Defendants did not show that Faulkner fit into any of the
enumerated exceptions in Evidence Rule 615 so it was an abuse of discretion for the trial
court to exempt Faulkner from the separation of witnesses order. We disagree.
A witness whose presence in the courtroom is essential to a party’s case cannot be
excluded. This exemption is generally used for expert witnesses who are believed to be
less susceptible to shaping their testimony based on what they hear from other witnesses
in the courtroom. R.R. Donnelley & Sons Co. v. N. Tx. Steel Co., Inc., 752 N.E.2d 112,
134 (Ind. Ct. App. 2001), trans. denied. Additionally, Indiana Evidence Rule 703
specifically contemplates the fact that expert witnesses may be in the courtroom for other
witnesses’ testimony, stating “[t]he facts or data in the particular case upon which an
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expert bases an opinion or inference may be those perceived by or made known to the
expert at or before the hearing.” (Emphasis added).
Whether a witness falls within the exemption is within the trial court’s discretion.
R.R. Donnelley & Sons Co., 752 N.E.2d at 134; see also Fourthman v. State, 658 N.E.2d
88, 90 (Ind. Ct. App. 1995), trans. denied. We will only reverse a trial court’s decision if
it is an abuse of discretion – if it is clearly against the logic and effects of the facts and
circumstances before it or the reasonable, probable, and actual deductions to be drawn
therefrom. Brewer v. Ind. Alcohol and Tobacco Comm’n, 954 N.E.2d 1023, 1026 (Ind.
Ct. App. 2011).
In this case, the Defendants argued that Faulkner had a specialized expertise in law
enforcement and the use of force and was going to be asked questions based on the
testimony he heard in the courtroom regarding the incident with the police and Webb.
Tr. p. 56. Because he was going to be asked his opinion on the testimony presented in
court, if Faulkner were not allowed to stay in the courtroom, then he would have to be
provided with daily transcripts so that he could appropriately form his expert opinion in
this case. Given the necessity that he be aware of each witness’s testimony and the belief
that expert witnesses are less likely to alter their testimony based on what they hear from
other witnesses, we hold that the trial court did not abuse its discretion in exempting
Faulkner from the separation of witness order. We therefore affirm the trial court.
Affirmed.
ROBB, C.J., and NAJAM, J., concur.
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