FILED
Apr 04 2017, 8:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Joel C. Wieneke Attorney General of Indiana
Wieneke Law Office, LLC Chandra K. Hein
Brooklyn, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Lee Pierson, April 4, 2017
Appellant-Defendant, Court of Appeals Case No.
89A05-1306-CR-311
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Gregory A. Horn,
Appellee-Plaintiff Judge
Trial Court Cause No.
89D02-1202-MR-2
Baker, Judge.
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[1] Joseph Pierson appeals his conviction for Neglect of a Dependent Resulting in
Death,1 a Class A Felony. He argues that because he is intellectually disabled 2
he could not have formed the requisite intent to knowingly and voluntarily
neglect a dependent; instead, he requests that he be convicted of reckless
homicide. Additionally, he argues that the trial court erred by permitting one
expert witness to testify via video deposition, and by permitting another expert
witness to suggest that the legal definition of “mental disease” or “insanity”
requires psychosis or hallucination. We find that there was sufficient evidence
from which a jury could find that Pierson acted in a knowing and voluntary
manner, that parties in a criminal case are permitted to agree to use a video
deposition, and that the full context of the experts’ remarks did not mislead the
jury of the applicable legal standards; accordingly, we affirm.
1
Ind. Code § 35-46-1-4(a)(1).
2
We strongly prefer to use the term “intellectual disability” rather than “mental retardation.” It is the case,
however, that much of our older statutes, case law, and technical language used by expert psychiatrists retain
the latter phraseology—fidelity to the record compels us to quote testimony accurately, and so we will use the
latter phrase where we have no other choice.
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Facts 3
[2] Pierson and Amy Hockett had their fourth child, K.H., on October 11, 2011. 4
K.H. weighed roughly eight and one-half pounds at birth, and at his discharge
from the hospital weighed just under eight pounds.
[3] On February 5, 2012, the parents called the police because K.H. was not
breathing. Emergency responders found Pierson holding K.H. They noted that
the baby was extremely skinny, his limbs were stiff, and his skin was pale and
cool to the touch. There were urine-soaked diapers around the home, which
were also covered in feces. One responder later testified that K.H. had died
long before they arrived.
[4] Investigators interviewed the parents, but Hockett did most of the talking.
Hockett said that K.H. could not keep food down well and that he suffered
from diarrhea. She said that they would feed the baby every three or four
hours. She informed investigators that Pierson has the mental functioning of a
twelve- to fifteen-year-old.
[5] An autopsy revealed that K.H. was extremely malnourished and that his body
had wasted “away to practically nothing.” Tr. p. 977. At his death, K.H.
3
We held oral argument on March 14, 2017, at Vincennes University in Vincennes, Indiana. We thank the
University and its staff and students for their hospitality, and we thank the parties for their engaging and
illuminating oral advocacy.
4
A pre-sentence investigation report, prepared after Pierson’s conviction, indicates that Pierson voluntarily
terminated his parental rights to a fifth child. The record does not reveal the circumstances of this
termination, nor the reason why Pierson’s other children were left in his custody.
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weighed six pounds, two ounces, which was two pounds less than when he left
the hospital four months earlier. K.H. had bed sores on his lower back, which
could have resulted from being left on his back for an extensive period of time
or from staying in a soiled, unchanged diaper. The autopsy doctor estimated
that K.H.’s level of malnutrition would only be possible after ten to eleven
weeks.
[6] On February 15, 2012, the State charged Pierson with murder and neglect of a
dependent, a Class A felony.5 The State later added a separate charge of neglect
of a dependent, a Class D felony. Pierson filed a notice that he would argue
insanity, based on his intellectual disability. After an evaluation, Pierson was
found competent to stand trial.
[7] At his February 4-8 and 11-12, 2013, trial, the State presented evidence that
another of Hockett’s and Pierson’s children, D.P., was hospitalized for low
weight in 2009. Hockett and Pierson received instructions on how to prevent
such a medical condition in the future. A family friend testified that she had
previously scolded Pierson for improperly filling K.H.’s formula bottles. That
friend, Hockett’s mother, and Hockett’s step-father all testified that Hockett
repeatedly mentioned taking K.H. to the local hospital for medical treatment
for a range of maladies including leukemia, reflux, gallbladder problems, and
kidney stones. Representatives from that hospital, however, testified that K.H.
5
Hockett was also charged, and ultimately convicted, of murder. Pierson appealed separately, so Hockett’s
case is not before us.
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had not been brought into the hospital since October 18, 2011, one week after
his birth, and that he was perfectly healthy at the time.
[8] Two expert witnesses testified regarding Pierson’s low-level mental functioning.
They both opined that Pierson had a mild intellectual disability based upon his
low I.Q. score and his inability to respond to basic abstract questioning.
Pierson’s I.Q. score has consistently registered around sixty-seven; the threshold
score to be considered intellectually disabled is seventy. Neither expert,
however, thought that Pierson met the definition of insanity. One expert, Dr.
Parker, said the following: “Well the Indiana definition of mental disease calls
for the presence of significantly impaired perception, uh, which I interpret to
mean symptoms of psychosis, like hallucinations or delusions . . . .” Tr. p.
1065. Because Pierson did not experience psychosis or hallucinations, Dr.
Parker concluded that Pierson did not meet the definition of insane. Pierson
did not object to this testimony.
[9] Both experts6 did agree that Pierson’s disability would impose moderate
limitations on his capacity to maintain concentration, keep a routine, or carry
out the basic activities of daily living. Dr. Parker also testified that someone
with Pierson’s condition might not even notice his own medical conditions, or
that he should seek medical treatment, let alone notice the medical needs of
another. Dr. Parker testified that Pierson was unable to calculate eight plus
6
The other expert, Dr. Davidson, testified via prerecorded video deposition, to which Pierson did not object.
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five, twelve minus nine, or ten minus four. Id. at 1076-77. Pierson was able to
recall, however, that he should add one scoop of formula for every two ounces
of water, two scoops for four ounces of water, and three scoops for six ounces
of water. Id. at 1098.
[10] The jury found Pierson not guilty of murder. He was found guilty but mentally
ill of reckless homicide (a lesser included offense of murder), Class A felony
neglect of a dependent resulting in death, and Class D felony neglect of a
dependent. Out of double jeopardy concerns, the trial court entered a
conviction for Class A felony neglect of a dependent resulting in death and
vacated the other convictions. After a sentencing hearing, the trial court
sentenced Pierson to thirty-seven years executed. Pierson now appeals.
Discussion and Decision
[11] Pierson argues that there is insufficient evidence to convict him of neglect of a
dependent resulting in death. That crime requires the State to prove, among
other things, that the defendant acted “knowingly or intentionally” to place a
dependent in a situation that endangers the dependent’s life. I.C. § 35-46-1-
4(a)(1). He contends that, because of his intellectual disability, the State did not
prove that he acted with the requisite intent; accordingly, he asks that he be
convicted of reckless homicide instead. He also argues that the trial court
committed reversible error by allowing Dr. Davidson to testify via video
deposition, which foreclosed the jury’s ability to ask him questions. Finally, he
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argues that the trial court erred by allowing Dr. Parker to suggest that a person
can only be found insane if suffering from psychosis or hallucinations.
I. Sufficiency of the Evidence
[12] Pierson acknowledges that “[l]ow mental capacity is not a defense to a criminal
charge.” Hester v. State, 512 N.E.2d 1110 (Ind. 1987). But he notes that neglect
of a dependent is somewhat unique in that it applies not only to affirmative
actions, but failures to act as well. Pierson can only be convicted if he is shown
to have acted or omitted to act “voluntarily,” Ind. Code § 35-41-2-1(a), and he
asks rhetorically, “If Pierson’s mild mental retardation prevented him from
maintaining the standard of care of a ‘reasonable parent,’ then how could his
failure to act as a reasonable parent be voluntary?” Appellant’s Br. p. 16.
Pierson distinguishes Smith v. State, 408 N.E.2d 614, 619 (Ind. Ct. App. 1980),
in which we affirmed a trial court’s refusal to allow the defendant to present
evidence that “her personality was meek, timid, and dependent” in an attempt
to argue that she could not be guilty of neglect of a dependent. Pierson argues
that his mental incapacity is tied directly to whether he would be capable of
properly caring for a dependent.
[13] Pierson also emphasizes the expert testimony that a person with his condition
would be susceptible to manipulation and implanted memories. He notes the
behavior of Hockett, who spun a complex set of lies and stories regarding the
medical care that K.H. was receiving. Pierson argues that a person with his
condition cannot be said to have “voluntarily” neglected to care for K.H. when
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Hockett was lying to him, making him believe that the child was receiving
proper and adequate care.
[14] Our standard of review compels us to affirm Pierson’s conviction unless no
reasonable fact-finder could find the elements proven beyond a reasonable
doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). “Under the child
neglect statute a ‘knowing’ mens rea requires a subjective awareness of a ‘high
probability’ that a dependent had been placed in a dangerous situation.”
Villagrana v. State, 954 N.E.2d 466, 468 (Ind. Ct. App. 2011). “Because, in most
cases, such a finding requires the factfinder to infer the defendant’s mental state,
this Court must look to all the surrounding circumstances of a case to determine
if a guilty verdict is proper.” Id.
[15] We find that the State presented sufficient evidence to prove that Pierson’s
actions were voluntary and knowing. K.H. was Pierson’s fourth child with
Hockett. Several witnesses testified that Pierson was able to take basic care of
the children, including changing them, playing with them, and feeding them.
One of his older children struggled with nutrition, and a hospital told Pierson
how to properly feed the child. Moreover, while Pierson does suffer from an
intellectual disability, the State presented evidence that his disability is mild:
his I.Q. score is three points below the cutoff to be considered impaired. The
expert witnesses also opined that Pierson would be capable of basic life tasks,
like feeding a child. All of those who interviewed him found his answers to be
responsive and coherent, even if basic. Moreover, the jury took account of
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Pierson’s mental handicap by declining to find him guilty of murder and finding
him guilty but mentally ill of the remaining charges.
[16] This case is a tragedy. Even the most able parents struggle to ensure that the
needs of their children are met. When a parent is intellectually disabled and
struggles with the basics of taking care of himself, let alone his children, it feels
less than perfectly just to send him away to prison for failing to do what he may
be barely capable of doing. Of course, it would also be unjust to the child-
victims of those who neglect their dependents if our justice system made an
exception for parents in difficult circumstances, as those children likely require
the most protection.
[17] In sum, the question of whether Pierson could understand his surroundings
enough to knowingly and voluntarily neglect K.H. is an extremely difficult and
fact-sensitive inquiry, which our justice system reserves for a jury. Here, the
jury was presented with extensive information regarding Pierson’s intellectual
disability. Some of this evidence suggests that Pierson was capable of
understanding the harm that the failure to feed K.H. was inflicting, and other
evidence suggests the opposite. Because the evidence conflicts on this matter,
our standard of review forbids us from disturbing the determination of the jury.
II. The Video Deposition
[18] Indiana Jury Rule 20 mandates trial courts to instruct the jury before opening
statements on several matters, one of which is “that jurors, including alternates,
may seek to ask questions of the witnesses by submission of questions in
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writing.” Accord Ind. Evidence Rule 614. Pierson cites case law in which we
have reversed and remanded convictions where a jury was not permitted to ask
questions, even “without a showing by the appellant that he had actually been
prejudiced by the erroneous instruction . . . . that prejudice is presumed and a
new trial is required.” Dolezal v. Goode, 433 N.E.2d 828, 834 (Ind. Ct. App.
1982). Pierson argues that the trial court erred by allowing Dr. Davidson’s
video deposition to be played at trial, since the jury could not ask Dr. Davidson
any questions.
[19] We disagree. Indiana Trial Rule 32(A) explicitly permits courts to use portions
of a deposition attended by both parties if the parties agree to do so. The parties
in this case agreed to its use, as shown by a pre-trial order: “[r]espective
counsel further agree that Dr. Davidson need not be subpoenaed and that the
use of the videotape deposition of Dr. Davidson will be satisfactory for use at
trial.” Appellant’s App. Vol. 3 p. 3.7
[20] Pierson’s attorney was present for Dr. Davidson’s deposition, and so had an
opportunity to cross-examine him. During this recorded cross-examination,
Pierson’s attorney was able to elicit testimony regarding the extent of Pierson’s
disability, asking Dr. Davidson about Pierson’s limited ability to understand his
surroundings or to carry out instructions. To rule that parties cannot agree to
use recorded video depositions could harm the rights of defendants who want
7
Not only did the parties agree to the video’s admission, the transcript even suggests that Pierson’s attorney
volunteered to operate the projector. Tr. p. 1129.
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the testimony to be admitted—we hesitate to say that the jury’s right to ask
questions of witnesses could supersede the defendant’s right at his own trial to
present the evidence he chooses. Accordingly, this argument is unavailing. 8
III. Dr. Parker’s Testimony
[21] At trial, Dr. Parker testified that the Indiana definition of mental disease and
insanity requires “the presence of significantly impaired perception, uh, which I
interpret to mean symptoms of psychosis, like hallucinations or delusions . . . .”
Tr. p. 1065. In fact, the definition does not require psychosis or hallucinations:
“A person is not responsible for having engaged in prohibited conduct if, as a
result of mental disease or defect, he was unable to appreciate the wrongfulness
of the conduct at the time of the offense.” Ind. Code § 35-41-3-6(a). “Mental
disease or defect” is defined as “a severely abnormal mental condition that
grossly and demonstrably impairs a person’s perception . . . .” Id. at -6(b).
[22] Pierson acknowledges that trial counsel did not object to this testimony.
“Failure to object at trial waives the issue for review unless fundamental error
occurred.” Hoagland v. State, 962 N.E.2d 1230, 1239 (Ind. 2012). “In order to
be fundamental, the error must represent a blatant violation of principles
8
While we do not believe that the admission of the video deposition was error, we also note that it would be
an invited error of which Pierson cannot take advantage. Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App.
2016).
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rendering the trial unfair to the defendant and thereby depriving the defendant
of due process.” Id.
[23] Pierson argues that Dr. Parker’s testimony was so blatantly prejudicial that the
trial court committed fundamental error by allowing it to occur. “By virtue of
Dr. Parker being a profession [sic] expert in the area of evaluating sanity under
Indiana law, this misinformation undoubtedly discouraged the jury from giving
due consideration to the defense of insanity.” Appellant’s Br. p. 24.
[24] Dr. Parker’s statement, by itself, certainly appears to misstate the elements of
the insanity defense. We find, however, that the full remarks made by both
experts more than adequately informed the jury of the applicable standards.
When Pierson cross-examined Dr. Parker, they had the following colloquy:
PIERSON: Doctor Parker, as you understand the definition of
mental disease or defect does it explicitly state in the definition of
that term the words that you just used regarding psychosis and
hallucinations?
DR. PARKER: Not specifically. It calls for evidence of gross
and demonstrable per--, uh disturbance of perception.
PIERSON: And, it does not include in its definition anywhere
the word delusional, does it?
DR. PARKER: No, it does not.
PIERSON: That’s your interpretation of the words provided in
the statute, correct?
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DR. PARKER: Yes, Sir.
Tr. p. 1065. Dr. Parker was also asked, “Is mental retardation a mental defect,”
to which he answered, “That’s kind of a hard phrase [] but yeah, that’s sort of
how I think of it . . . .” Id. at 1087. On re-direct, the State read the exact
definition of insanity, including both mental disease or defect, but Dr. Parker
stuck to his conclusion that Pierson “could have appreciated the wrongfulness
of his actions.” Id. at 1091. A few moments later, he again affirmed the
statement, “it is further my opinion with reasonable medical certainty that
Defendant could have appreciated the wrongfulness of his behavior at the time
of the alleged offense . . . .” Id. at 1098. Dr. Parker then explained why he did
not use more definitive language: “I wrote he could have appreciated because
it’s also possible he could not have appreciated. So that reflects a certain
amount of uncertainty. . . . I was unable to say that he did appreciate the
wrongfulness which is a very clear, declarative statement, and I chose to use
could have instead.” Id. at 1120.
[25] In his video deposition, Dr. Davidson came to very similar conclusions. He
also diagnosed Pierson as having a borderline to mild intellectual disability. Id.
at 1139. He also testified that it was “improbable” that Pierson had a mental
disease or defect such that he could not understand the wrongfulness of his
actions. Id. at 1141-42. He opined that the mild form of intellectual disability
that Pierson suffers would not qualify as a mental disease for purposes of the
insanity defense. Id. at 1167. But like Dr. Parker’s testimony, this statement
was clarified:
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Q.: And, in regard to that as far as your understanding the
question for a jury or a trial to the bench by the Court as to
whether or not a person is responsible for having engaged in
prohibited conduct is that they not only have a mental disease or
defect but they are unable to appreciate the wrongfulness of the
conduct at the time of the offense, do you understand –
A.: That’s my understanding of the statute.
Q.: And, so in this case even though Mr. Pierson is mildly
mentally retarded or handicapped, which I think obviously is a
better term, you made a finding that or are you saying that he
was able to appreciate the wrongfulness of the conduct at the
time of the offense in regard to the charges filed?
A.: That’s correct, that was my opinion.
Id. at 1167-68. In a later cross-examination, Dr. Davidson says that it “is really
very difficult” to say whether mild mental retardation would qualify as a mental
disease or defect, but he affirmed that he “can’t say that . . . it’s [his]
understanding that mental retardation is not a mental disease or defect as a
matter of law.” Id. at 1194.
[26] In sum, when we look at the remarks of both expert witnesses in their full
context, we find that the jury was repeatedly informed of the correct legal
standard. On multiple occasions, the experts responded directly to the question
of whether Pierson was able to understand the wrongfulness of his conduct,
which is the precise definition of insanity for the purposes of Pierson’s defense.
Moreover, both experts testified that low-level functioning might be able to
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qualify under the defense, but they did not believe that Pierson met that
standard. Finally, both experts gave very nuanced testimony; they both
explained the symptoms of Pierson’s disability, informed the jury of their
uncertainty regarding Pierson’s ability to understand what was happening to
K.H., but ultimately concluded (despite their uncertainty) that Pierson likely
understood the wrongfulness of his conduct.
[27] Inferring a state of mind is difficult enough for the ordinary defendant, and even
more difficult for a defendant who suffers from an intellectual disability. The
experts’ remarks, taken in their full context, appropriately explained their
conclusions in light of the correct legal standard. We find no error in this
regard, and we also note that it is primarily the responsibility of the trial court,
not expert witnesses, to instruct the jury on the applicable law—Pierson does
not argue that the trial court improperly instructed the jury.
[28] The judgment of the trial court is affirmed.
Najam, J., and Altice, J., concur.
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