ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHERINE A. CORNELIUS JEFFREY A. MODISETT
Marion County Public Defenders Agency Attorney General of Indiana
Indianapolis, Indiana
RANDI E. FROUG
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
KRISTA CLINE, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. )
) 49S00-9810-CR-594
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9707-CF-098582
ON DIRECT APPEAL
April 19, 2000
RUCKER, Justice
Case Summary
Krista Cline was charged with the murder of her two-month-old daughter
Alexis. At trial Cline sought to shift responsibility for the crime to her
boyfriend Lamar Jenkins. The jury returned a verdict of guilty, and the
trial court sentenced Cline to sixty-five years imprisonment. In this
direct appeal Cline raises four issues for our review which we rephrase as:
(1) did the trial court err by excluding evidence of Jenkins’ gang
affiliation and evidence of his propensity for violence, (2) did the trial
court err by allowing into evidence Jenkins’ pre-trial hearsay statement,
(3) did the trial court err by allowing into evidence the testimony of a
counselor that statements made by Cline seemed strange and odd, and (4) did
the trial court err by refusing to instruct the jury on the offense of
neglect of a dependent.
Finding no reversible error, we affirm.
Facts
The record shows that when Cline was sixteen years old she became
pregnant. As a result, Alexis was born on March 8, 1997. Cline and Alexis
lived with Cline's father and stepmother. While Cline attended school half-
days, a neighbor babysat Alexis. Cline would return home around noon,
retrieve Alexis and stay with her until Cline went to work at a part-time
job. During that time, Cline’s father and stepmother usually cared for
Alexis. On Friday, May 9, 1997, the neighbor babysat Alexis as usual, and
according to the neighbor Alexis seemed healthy that day. Cline, however,
had become “frazzled” and was not sure she could cope with raising a child.
R. at 483. Although Cline had previously spoken to the neighbor about the
possibility of placing Alexis for adoption, Cline became upset when the
neighbor suggested that Cline’s father and stepmother could obtain custody
of Alexis. The following Saturday and Sunday Cline’s father and stepmother
babysat Alexis. They found her to be healthy and saw nothing unusual about
the child.
On Monday, May 12, 1997, Cline decided to stay home from school. She
telephoned her boyfriend Lamar Jenkins to let him know that she would be
home all day. Jenkins, who is not Alexis’ father, came over sometime
around 9:30 a.m. or 10:00 a.m. The couple spent the morning smoking
marijuana, having sex, and watching television. What happened immediately
thereafter is a matter of dispute. Cline testified at trial that while
Jenkins was present she took a shower lasting approximately twenty minutes.
During that time, according to Cline, Jenkins was alone with Alexis.
Cline also testified that when she got out of the shower Alexis was crying
loudly and Jenkins then left the house. On the other hand Jenkins
acknowledged that the baby was crying just before he left around 2:00 p.m.
However he testified that he was in the living room with Cline when that
event occurred and the baby was in another room. According to Jenkins,
when Cline refused to get the baby, he got her, gave her to Cline, and left
shortly thereafter. Jenkins denied that Cline took a shower while he was
present. The record shows that Cline’s father arrived home around 5:00
p.m. and found Cline lying on the couch with Alexis lying across Cline’s
chest. According to her father, Cline appeared to have just gotten out of
the shower. At her father’s suggestion, Cline placed Alexis in her crib.
Cline’s father then went to the garage. Sometime shortly thereafter Cline
saw that Alexis was not breathing, and Cline began screaming. Her father
returned from the garage, checked Alexis, and found blood coming from her
nose. He called 911. Emergency medical technicians arrived on the scene
and transported Alexis to the hospital where she was placed on a life
support system. The following day a medical and family decision was made
to remove the life support. Alexis died shortly thereafter.
An autopsy revealed that Alexis had suffered numerous injuries all
inflicted at approximately the same time. The cause of death was a tear to
Alexis’ transverse colon due to blunt force impact to the child’s abdomen.
In addition, there were vaginal and anal injuries that appeared to be
caused by a heated object, perhaps a curling iron. Also, there were four
areas of blunt force trauma to the child’s head.
After giving several statements to the police, Cline was ultimately
arrested and charged with murder. While in custody awaiting trial, Cline
was held in the Marion County Jail. Two inmates who were also in custody
at the jail testified at trial that they overheard a conversation between
Cline and her cellmate. According to the inmate witnesses, Cline stated
that after Jenkins left the house, she became “stressed out” because she
could not get Alexis to stop crying. R. at 782, 804. As a result, she
punched Alexis in the stomach. One of the witnesses later spoke with Cline
and asked about a report that Alexis had shown signs of injury to her head.
According to the witness, Cline demonstrated how that happened indicating
that she applied force to Alexis’ head using the heel of her hand. A
pathologist testified at trial that the blunt force injuries to Alexis’
head were consistent with someone using the heel of a hand.
Cline was convicted of murder. This appeal followed. Additional
facts are set forth below where relevant.
Discussion
I. Gang Affiliation and Prior Bad Acts
Cline's theory of defense at trial was that her boyfriend Jenkins
caused Alexis’ death. According to Cline, Jenkins inflicted injuries on
Alexis during his morning visit when he was alone with the child while
Cline took a shower. In an attempt to bolster this theory, Cline sought to
introduce evidence that Jenkins was a member of a street gang, and that he
had been involved in two physical altercations with other juveniles in the
week before Alexis was killed. In response to the State’s relevancy
objection, the trial court precluded Cline from cross-examining Jenkins on
this point and would not allow Cline to introduce a police arrest report
concerning Jenkins.
Cline contends the trial court erred in sustaining the State’s
objection because the evidence was relevant for a number of reasons: (a) to
show that Cline was afraid of Jenkins thus explaining why when first
questioned by police Cline did not inform them that Jenkins had been
present at her home the day Alexis was injured, (b) to show that Jenkins
was intelligent enough to commit a violent act thus addressing evidence
that Jenkins suffered from a learning disability, (c) to complete the story
surrounding the circumstances of the crime, and (d) to show that Jenkins
was Alexis’ attacker.
Although the trial court did not allow Cline to introduce the
proffered evidence based on the State’s relevancy objection, there is a
more fundamental reason supporting the trial court’s decision. Under Ind.
Evidence Rule 404(b) “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith.” Spencer v. State, 703 N.E.2d 1053, 1055 (Ind.
1999). In this appeal, Cline advances the above-mentioned reasons to
support her claim that evidence of Jenkins’ gang membership and violent
conduct were admissible. Regardless of the propriety of these claims, at
trial Cline’s argument in support of admitting the evidence was that
“[Jenkins] was in the proximity of the alleged victim, Alexis Cline, on May
12, 1997, the day she allegedly received her fatal injuries . . . He had
the opportunity and the ability to perform the alleged violent act, to-wit:
blunt force trauma, which resulted in her death. Additionally, he had
demonstrated the propensity to commit such a violent act.” R. at 299-300.
Essentially, Cline sought to introduce evidence of Jenkins’ prior acts for
the sole purpose of demonstrating that because Jenkins had acted violently
in the past, he likely acted in conformity with those acts and harmed
Alexis. This is the forbidden inference that Ind. Evidence Rule 404(b)
specifically proscribes. Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.
1999) (“[R]ule [404(b)] is designed to prevent the jury from making the
‘forbidden inference’ that prior wrongful conduct suggests present
guilt.”). The trial court properly excluded evidence of Jenkins gang
affiliation and prior violent conduct. There is no error on this issue.
II. Evidence of Prior Consistent Statement
Cline contends the trial court erred in allowing a police officer to
testify concerning the contents of Jenkins’ out of court statement. The
facts surrounding this contention follow. The State called Jenkins to
testify concerning the events of May 12, 1997. Among other things Jenkins
testified that on the morning in question he arrived at Cline’s house
around 9:30 a.m. or 10:00 a.m., he and Cline had sex and smoked marijuana,
and he left the house as school was letting out, around 2:00 p.m. R. at
424-50. Jenkins also testified that for most of the time he was in the
home the baby was asleep; however just before he left, the baby started
crying, and he picked her up and handed her to Cline. R. at 450. Jenkins
also testified that Cline did not take a shower while he was present in the
home. R. at 553. On cross-examination, Cline challenged Jenkins’ veracity
and his ability to correctly remember the events of the day in question.
In rebuttal, the State called to the stand Officer Larry Smith who had
taken Jenkins’ statement on July 15, 1997. Through Officer Smith, the
State sought to offer the statement as evidence of a prior consistent
statement. Over Cline’s hearsay objection, Officer Smith testified that
Jenkins told him Cline called Jenkins on the morning of May 12, 1997, and
told him to come to the house between 10:30 and 11:00 a.m.; the two smoked
marijuana; Alexis awoke one time and was fine while he was in the home; and
that he left Cline’s house just as school was letting out. R. at 764-75.
Cline contends Officer Smith’s testimony was not admissible under the prior
consistent statement rule because (a) the statement was not consistent and
(b) at the time Jenkins made the statement he had a motive to lie.
Hearsay is an out of court statement offered to prove the truth of the
matter asserted. Ind. Evidence Rule 801(c). Under Indiana Evidence Rule
801(d)(1)(B), an out- -of-court statement is not hearsay if the declarant
testifies at the trial or hearing and is subject to cross examination
concerning the statement, and the statement is “consistent with the
declarant’s testimony, offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or
motive, and made before the motive to fabricate arose . . . .” Ind. Evid.
R. 801(d)(1)(B). A ruling on the admissibility of arguably hearsay
statements is within the sound discretion of the trial court. Taylor v.
State, 587 N.E.2d 1293, 1302 (Ind. 1992).
Although minor discrepancies exist between Jenkins’ out-of-court
statement and his trial testimony, the statement and testimony nonetheless
are essentially the same. A prior statement need not be completely
consistent to meet the requirements of 801(d)(1)(B). Rather, the statement
only needs to be “sufficiently consistent.” Willoughby v. State, 660
N.E.2d 570, 579 (Ind. 1996). Here, Jenkins’s out-of-court statement and
trial testimony satisfy the requirements of the rule.
As for the timing of a motive to fabricate, we recently addressed this
issue in Sturgeon v. State, 719 N.E.2d 1173 (Ind. 1999). In that case, the
trial court admitted a prior statement of State’s witness Gregory Anderson
implicating the defendant in a murder. The statement was offered to rebut
the defendant’s inference that Anderson’s testimony was influenced by
favorable treatment from the State. Id. at 1177. The defendant objected
to the statement arguing that Anderson made it when he had a motive to
fabricate. The evidence at trial showed Anderson sold drugs to the victim
on the evening of the murder and later assisted the defendant in disposing
of the body. Id. at 1179. The evidence also showed that before giving his
statement, Anderson was informed by the police that he could be charged in
connection with the murder. Id. We found no error in the admission of the
statement. In so doing we noted:
We acknowledge the possibility of a motive to fabricate on Anderson’s
part since he knew he could be charged in connection with the murder
and since he participated in certain criminal acts surrounding the
murder. However, there is no evidence tending to implicate Anderson
in Coffman’s murder and therefore no evidence that he had a motive to
lie about Sturgeon’s involvement when questioned. Without concrete
evidence to that effect, we cannot conclude the trial court abused its
discretion in admitting Anderson’s prior consistent statement.
Id. at 1180. The facts pointing to Jenkins’ motive to fabricate in this
case are even less compelling than the facts pointing to Anderson’s motive
in Sturgeon. Here, although Jenkins talked to the police on July 5th as
well as on July 15th, nothing in the record shows that he was ever advised
that he could or would be charged with Alexis’ murder; nor is there any
evidence that Jenkins participated in any criminal acts surrounding the
murder.[1] In like fashion, other than Jenkins’ presence in Cline’s house
on the day Alexis was injured there is no evidence tending to implicate
Jenkins in her murder. We conclude that the record does not support
Cline’s contention that Jenkins had a motive to lie when he spoke with
Officer Smith. Accordingly, the trial court did not abuse its discretion
in admitting Jenkins’ prior consistent statement.
III. Counselor’s Testimony
Cline next contends the trial court erred by admitting certain
testimony of a police “Crisis Counselor.” We agree, but find the error
harmless. The facts are these. The State called as a witness Maureen Ward
who was employed by the Indianapolis Police Department as a Crisis
Counselor and had worked in that capacity for ten years. Ward explained
that her duties required her to “respond to any situation where someone
would be in crisis; homicide, sex crimes, robberies and that type of
thing.” R. at 735. On May 12, 1997, Ward arrived at Cline’s home in
response to a report of a baby that was not breathing. When Ward heard the
age of the child, she assumed it was a case of crib death. R. at 737. As
paramedics were transporting Alexis to the hospital, Ward drove Cline to
the hospital. Ward testified that while in route Cline asserted three
different times that “she would never do anything to hurt her baby.” R. at
737. After further questioning the following exchanged occurred:
[Prosecutor]: Okay. Did you have occasion to talk to the police
yourself after this encounter with the defendant that night?
[Ward]: I did mention to Detective Jones that I thought her
statements were - - -
[Defense Counsel]: Judge, I’m going to object to what this witness
thought about the statements. Drawing conclusions.
[Prosecutor]: Judge, I believe the witness can testify [about] her
impression of what was said.
[Court]: I believe the question was, “what did she tell Detective
Jones” and she may answer that question.
[Defense Counsel]: Judge, I object based on relevancy along the lines
of what her answer was.
[Court]: Objection overruled. You may respond.
[Ward]: I found it odd because I’ve been on a lot of crib deaths.
The parents never say anything about hurting their child because they
know they didn’t hurt them.
R. at 738-39. The examination continued:
[Prosecutor]: What did you tell [Detective Jones]?
[Ward]: I told him that I felt it was strange—
[Defense Counsel]: Judge, I object to relevancy.
[Court]: Note your objection and show it overruled You may answer
the question.
[Ward]: I told him I felt it was strange that she said that three (3)
times in the car. I just thought it was something that he should
know.
R. at 739. Cline contends the trial court erred in allowing Ward to
testify as to what she thought about Cline’s statements. Cline argues that
Ward was not an expert witness and thus her opinion was not relevant. The
State concedes that Ward was not qualified as an expert witness under Ind.
Evidence Rule 702. However, the State argues that Ward was not testifying
as an expert, but rather as a “skilled” lay witness and was thus qualified
to give her opinion under the provision of Ind. Evidence Rule 701.[2]
The parties’ argument over whether Ward was a lay or expert witness
misses the mark. Taken in context the above colloquy shows that Ward was
not giving opinion testimony as such. That is to say, she was not asked to
give the jury her opinion about the statements Cline made. Rather, Ward
was asked about what she told a police officer concerning Cline’s
statements. The question here is whether Ward’s statements given to the
police officer were relevant to any issue in this case. “‘Relevant
evidence’ means 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 without the evidence.” Ind.
Evidence Rule 401. We conclude that Ward’s statement to a police officer
did not make more or less probable any issue before the jury. At most,
Ward’s statements may have had a bearing on the focus of the officer’s
subsequent investigation. However, the officer did not testify regarding
Ward’s statement, and the focus of his investigation was not at issue. In
sum, Ward’s statement was not relevant and its admission into evidence was
erroneous.[3]
Nonetheless, the admission of irrelevant evidence will result in
reversal only if it can be shown that the testimony substantially
influenced the jury’s verdict. Wood v. State, 677 N.E.2d 499, 505 (Ind.
1997). Here, the evidence showed that Cline’s two-month-old child died as
a result of blunt force injury to the abdomen. Although Cline attempted at
trial to blame her boyfriend, two witnesses testified they overheard Cline
tell her cellmate that she became “stressed out” when the child would not
stop crying and as a result she punched the child in the stomach. Both
witness were inmates with Cline at the Marion County Jail when they
overheard the conversation. However, the record does not show that either
witness was in any way compensated for or received favorable treatment for
her testimony. Essentially, the credibility of the witnesses was not
substantially shaken on cross-examination. Further, Cline’s father
testified that when he arrived home around 5:00 p.m. on May 12, Cline
appeared as though she had “just got out of the shower.” R. at 392. This
testimony contradicts Cline’s assertion that she took a shower some three
hours or so earlier when Jenkins was present. As a result, Cline’s
contention that Jenkins was alone with Alexis for twenty minutes during the
time she showered was rebutted. In sum, given the other evidence presented
at trial, it is unlikely that Ward’s inadmissible testimony substantially
influenced the jury’s verdict. Hence, although the trial court erred in
admitting the testimony, the error was harmless.
IV. Instruction on Neglect of a Dependent
Cline last contends the trial court erred by refusing her instruction
on the lesser offense of neglect of a dependent. Cline concedes that
neglect of a dependent is neither an inherently included nor a factually
included lesser offense of murder. See Wright v. State, 685 N.E.2d 563
(Ind. 1995) (establishing three part test for determining whether an
instruction on a lesser included offense should be given). However,
pointing to evidence that she left her child alone with Jenkins thereby
putting her at substantial risk for serious bodily injury,[4] Cline argues
that neglect of a dependent was her defense at trial. As such, the
argument continues, she was entitled to have the jury instructed on that
theory of defense. See Clemens v. State, 610 N.E.2d 236, 241 (Ind. 1993)
(a defendant is entitled to an instruction on any defense which has some
foundation in the evidence).
First, we reject Cline’s contention that she was entitled to an
instruction on neglect of a dependent as a theory of defense. Neglect of a
dependent is not a defense to murder. Rather, a defendant may be tried on
charges of both murder and neglect of a dependent. See, e.g., Pendergrass
v. State, 702 N.E.2d 716 (Ind. 1998); Clemens v. State, 610 N.E.2d 236
(Ind. 1993); Jones v. State, 701 N.E.2d 863 (Ind. Ct. App. 1998); Baker v.
State, 569 N.E.2d 369 (Ind. Ct. App. 1991). On this ground alone, the
trial court properly rejected Cline’s tendered instruction.
Second, the manner of instructing a jury lies largely within the sound
discretion of the trial court, and we review the trial court’s decision
only for abuse of that discretion. Edgecomb v. State, 673 N.E.2d 1185,
1196 (Ind. 1996). The test for reviewing the propriety of the trial
court’s decision to refuse a tendered instruction is: (1) whether the
instruction correctly states the law; (2) whether there was evidence in the
record to support the giving of the instruction; and (3) whether the
substance of the instruction is covered by other instructions given by the
court. Hartman v. State, 669 N.E.2d 959, 961 (Ind. 1996).
Our examination of Cline’s proposed instruction shows that it fails
the first prong of the test. Specifically, the first sentence of the
instruction reads: “Included in the charge of murder in this case is the
crime of neglect of a dependent.” R. at 321. As Cline now concedes
neglect of a dependent is not an inherently included lesser offense of
murder nor, as charged in this case, is it a factually included lesser
offense of murder.[5] Cline’s tendered instruction is an incorrect
statement of the law. On this additional ground the trial court properly
refused to give the instruction.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
BOEHM, J., concurs as to Parts I, II, and IV and concurs in result as to
Part III with separate opinion.
ATTORNEY FOR APPELLANT
Katherine A. Cornelius
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
Indianapolis, Indiana
_____________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
_____________________________________________________________________
KRISTA CLINE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9810-CR-594
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
____________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9707-CF-098582
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
April 19, 2000
BOEHM, Justice, concurring.
I concur in Parts I, II, and IV. I concur in result in Part III
because I agree the error in admitting Ward’s testimony was harmless. It
seems to me that in the testimony quoted by the majority Ward did express
an opinion, and that, although not directly stated, her opinion was that
Cline was guilty of the crime. If Ward is an expert, this opinion is
relevant, but inadmissible under Evidence Rule 704(b) because it is an
expression of opinion as to guilt. Because Ward’s opinion was derived not
from “rational inferences” from her “perceptions” but rather from her
experience, she was not a lay witness under Evidence Rule 701, and needed
to be qualified as an expert. If Ward is not an expert, I agree with the
majority that her opinion may be viewed as irrelevant, but is specifically
rendered inadmissible by Rule 701 and also by Rule 704(b).
-----------------------
[1] Jenkins’ possession of marijuana on the morning Alexis was
injured is a criminal offense. See Ind. Code § 35-48-4-11. However,
unlike Sturgeon where the related criminal act involved disposing of the
body, the offense here was unrelated to Alexis’ murder.
[2] Ind. Evidence Rule 701 provides: “If the witness is not
testifying as an expert, the witness’s testimony in the form of opinion or
inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a
clear understanding of the witness’s testimony or the determination of a
fact in issue.
[3] We also note that Ward’s testimony that Cline’s statements seemed
“odd” and “strange” was premised on Ward’s assumption that the child had
died as a result of “crib death.” However, there was no evidence before
Ward to support that assumption. The absence of evidence on this point
lends further support to our conclusion that Ward’s testimony was not
relevant.
[4] The neglect of a dependent offense is codified at Ind. Code § 35-
46-1-4, which provides in part:
(a) A person having the care of a dependent, whether assumed
voluntarily or because of a legal obligation, who knowingly or
intentionally:
(1) places the dependent in a situation that endangers the
dependent's life or health;
(2) abandons or cruelly confines the dependent;
(3) deprives the dependent of necessary support; or
(4) deprives the dependent of education as required by law;
commits neglect of a dependent, a Class D felony.
[5] Cline’s argument actually implicates the doctrine of lesser
“related” offenses.
Broadly stated, the “related” offense doctrine holds that if the
evidence demonstrates the defendant may have committed a lesser
offense in the course of acts that led to the greater charge, even if
such offense is not inherently included in the greater charge nor in
the prosecutor’s factual allegations of the means by which the greater
crime charged was committed, and if the defendant so requests, the
trier of fact should be given the opportunity to consider the
“related” lesser offense.
Mahla v. State, 496 N.E.2d 568, 573-74 (Ind. 1986) (emphasis in the
original). Cline does not make this argument and thus it is waived for
review. In any event, although recognized in some jurisdictions, this
state has never applied the doctrine of lesser “related” offenses. See id.
(commenting that the doctrine goes beyond the principles of “inherently”
and “factually” included offenses which are well-established by our case
law); see also Wells v. State, 555 N.E.2d 1366, 1371 (Ind. Ct. App. 1990)
(finding it unnecessary to decide whether the doctrine of related offenses
should be adopted in Indiana).