ATTORNEY FOR APPELLANT
David W. Stone IV
Anderson, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Joseph A. Samreta
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
TRACY SUE CRAWFORD, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 48S00-0103-CR-166
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-0003-CF-00060
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
June 26, 2002
BOEHM, Justice.
Tracy Crawford was found guilty, but mentally ill, for the murder of
her husband and sentenced to sixty-five years imprisonment. She raises six
issues for review, which we restate as five. She contends: (1) the trial
court erred by allowing expert witnesses it appointed to examine her to be
called out of order at trial; (2) the trial court erred by admitting her
husband’s journal into evidence; (3) the trial court erred by preventing
her from calling rebuttal witnesses; (4) the trial court imposed an
improper restitution order; and (5) the trial court imposed an improper
sentence. We affirm Crawford’s conviction for murder and remand with
instructions to reduce Crawford’s sentence to fifty-five years.
Factual and Procedural Background
On March 5, 2001, Crawford shot and killed her husband Kent while he
slept in their Madison County home. After her attempt to dispose of his
body failed, she drove off with the couple’s child. A passerby stopped to
aid Crawford’s car, which was parked on the side of a Michigan road with
“help” written on a diaper in the window. Crawford asked for the police
and initially told investigating officers that a couple had broken into her
home and abducted her and her son. She also asked the police to check on
her husband.
Crawford later admitted that she had killed Kent. She told police
that Kent had repeatedly abused her sexually and that he had threatened to
take their child away when she told him she had filed for divorce. She
admitted having taken the gun she used to kill Kent from her grandparents’
home because she wanted to be able to protect herself. She shot Kent, she
said, hours after he had forced her to perform oral sex.
The State charged Crawford with murder, and a jury found her guilty
but mentally ill. The trial court imposed the maximum sentence of sixty-
five years and awarded $9,960.40 to Kent’s estate for funeral expenses.
I. Order of Witnesses
Indiana Code section 35-36-2-2 states that when a notice of insanity
defense is filed, “the court shall appoint two (2) or three (3) competent
disinterested psychiatrists, psychologists endorsed by the state psychology
board as health service providers in psychology, or physicians, at least
one (1) of whom must be a psychiatrist, to examine the defendant and to
testify at trial.” The statute is explicit as to when those appointed
mental health professionals are to testify at trial: “This testimony shall
follow the presentation of the evidence for the prosecution and for the
defense, including testimony of any medical experts employed by the state
or by the defense.” Ind. Code § 35-36-2-2 (1998).
The meaning of this statute is not in doubt. Court-appointed mental
health professionals are to testify after the prosecution and defense have
concluded their presentations of evidence. We have held as much since at
least 1954, when we stated that “it is the clear intent of the statute that
an expert appointed by the court shall not be permitted to testify on the
subject of the sanity or insanity of the accused until after the
presentation of the evidence of the prosecution and the defense.”
Henderson v. State, 233 Ind. 598, 602, 122 N.E.2d 340, 342 (1954). In
Blackburn v. State, 260 Ind. 5, 25, 291 N.E.2d 686, 698 (1973), this Court
stated, “The reason for the final sentence in the statute . . . is clear.
It relieves both parties of the burden of having the court-appointed
physicians become their witnesses with the result that they would be bound
by such testimony.” In Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985),
we held that “[t]he statute requires that these witnesses be called
following all the evidence presented by the State and by the defendant.”
And two weeks later, in Thomas v. State, 486 N.E.2d 531, 533 (Ind. 1985),
we stated that “the clear purpose of the statute in requiring this
particular order of proof is to separate the evidence relating to the
substantive crime from that related to the issue of sanity.”
Because of scheduling conflicts, the trial court called the experts
it appointed to examine Crawford before the close of Crawford’s case. In
so doing, it ignored the statute and controlling precedent. The State
contends this was not reversible error because there was no prejudice to
Crawford. Crawford argues first that she need not demonstrate prejudice in
this case because “[t]o hold otherwise renders the statutory provision so
much surplusage which may be disregarded with impunity.” She also contends
that the trial court’s decision prejudiced her case because the witnesses’
testimony “was presented at the time when it was most likely to nullify the
evidence of the defendant’s expert witnesses since it was presented
immediately after their testimony.”
We agree with Crawford’s concerns. The trial court relied on Phelan
v. State, 273 Ind. 542, 406 N.E.2d 237 (1980), as a basis for it to proceed
despite the statutory mandate and despite the holding of Phelan itself that
allowing a court-appointed physician to testify prior to the close of the
defendant’s case was error. In Phelan we held there was no reversible
error because the defendant in that case did not demonstrate prejudice.
The trial court here assumed that its proceeding in error also would turn
out to be harmless. When Crawford’s attorney objected to the trial court’s
decision, the following exchange took place:
DEFENSE COUNSEL: [T]he reason you’re going to do it, although the
Supreme Court said it was err[or] is because in that particular case
it didn’t prejudice the defendant. So you’re just going to make an
assumption here that whatever happens here is not going to prejudice
the defendant. You’re going to ignore the law and you’re going to
ignore a Supreme Court opinion from 1980 that says it’s err[or] to do
it. Is that my understanding of your interpretation?
TRIAL COURT: Yes, ma’am.
Although the trial court presumably meant well in its attempt to
accommodate the witnesses’ schedules, neither the statute nor case law
provides an exception to the mandated witness order in this situation. A
court’s indifference to clearly stated rules breeds disrespect for and
discontent with our justice system. Government cannot demand respect of
the laws by its citizens when its tribunals ignore those very same laws.
This is one of the fundamentals of our Code of Judicial Conduct. Ind. Code
of Judicial Conduct Canon 2A (“A judge shall respect and comply with the
law and shall act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.”).
Although Crawford raises valid concerns, and although a trial court
that chooses to disregard the law leaves itself open to disciplinary
action, the issue on appeal remains subject to the harmless error standard
of review. “Errors in the admission or exclusion of evidence are to be
disregarded as harmless error unless they affect the substantial rights of
a party.” Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995); Ind. Trial
Rule 61. Crawford argues that the presentation of the court-appointed
experts prior to the close of her case nullified the testimony of her own
experts, who testified immediately before. This situation is similar to
Blackburn, where this Court noted that jurors might just as likely have
been influenced to a greater extent had the testimony of the court-
appointed physicians been presented at the close of evidence, leaving
unfavorable testimony fresh in their minds prior to deliberations. 260
Ind. at 25-26, 291 N.E.2d at 698. In Blackburn, as in this case, there was
no “affirmative showing of prejudice to the defendant as a result of the
error.” All we are presented with is Crawford’s speculation as to the
effect of the court-appointed experts’ testimony. In sum, Crawford points
to nothing showing that the sequence of the evidence likely had a
prejudicial effect on the jurors. Although the trial court’s error was
blatant and intentional, we cannot say it affected Crawford’s substantial
rights. Retrials involve significant emotional and financial costs to many
innocent parties, including witnesses, victims, and their families. In the
absence of any showing of prejudice they should not be lightly imposed.
Whether this matter is grounds for action in another forum is not for this
Court to resolve in the first instance.
II. Kent’s Journal was Hearsay
The State introduced into evidence a diary kept by Kent purporting to
document Crawford’s treatment of Kent two years before his murder. The
trial court admitted the diary over Crawford’s hearsay objection. The
State relied on the diary to prove that Crawford’s claim of mistreatment by
her husband was false, and that in fact she was the one who treated her
spouse poorly. The diary included the following entries:
5/22/98 – My life stinks. Tracy has moved into the other bedroom (3
weeks ago) The sale of 10th Street has fallen through, I am fearful
that we will not have enough money to live on, I am so stressed about
my marriage. . . . [M]y marriage is extremely difficult, I get no
respect! I have jumped up and down trying to get someone to see how
terrible Tracy treats me, but no one seems to sympathize with me. . .
. God seems to say, wait and have faith. But I am getting slapped
around. If God can create the universe in 6 days, why can’t he fix
Tracy?
6/10 – Tracy and I are not doing well. We got into a big fight last
night about me not calling about the Dr. appt. she had that day. God
keeps saying wait. But there is nothing to hope for. I feel
completely empty. . . . Please God, restore my marriage. Help Tracy
to forgive and forget.
6/25/98 – Life has been difficult. Tracy and I are still struggling.
She doesn’t respect or trust me. She has told me that time and time
again. Sunday, I told her the way I felt. . . . She was very
hateful and embarrassed me in front of Dr. Jackson. I think Dr.
Jackson felt uncomfortable and hopeless.
At trial, the State conceded the diary was hearsay, but contended it
was admissible because Crawford had asserted an insanity defense. It is
true that when the defense of insanity is raised, otherwise inadmissible
evidence may be admitted. Garner v. State, 704 N.E.2d 1011 (Ind. 1998).
However, to fall within this doctrine, otherwise inadmissible evidence must
be relevant to the mental state of the defendant. Id. at 1014. Unlike
Garner, the quoted portions of Kent’s diary do not pertain to Crawford’s
claim of insanity. They merely document Kent’s assertions that Crawford
treated him poorly and that the couple’s marriage was troubled. Although
Crawford’s insanity claim was related to her claim of spousal abuse, Kent’s
private assessment of their relationship two years before his murder had no
bearing on the issue of Crawford’s mental state.
This Court will not reverse the trial court’s decision to admit
evidence if that decision is sustainable on any ground. Cf. Jester v.
State, 724 N.E.2d 235, 240 (Ind. 2000). On appeal, the State abandons the
argument it made at trial and instead argues that the diary fell within an
exception to the hearsay rule for statements “of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain and bodily health).”
Evidence Rule 803(3). The State contends that the journal shows Kent’s
state of mind regarding his marriage. Although the journal entries convey
Kent’s feelings about his marriage, we see no issue to which they are
relevant. Moreover, the State used very specific assertions to attempt to
prove the underlying facts, not Kent’s state of mind: Crawford moved into a
separate bedroom; Crawford treated him terribly; Crawford and he fought;
Crawford embarrassed him at a counseling session.
Although error, we conclude the admission of the diary was harmless.
Several witnesses, including Crawford, testified that relations between her
and Kent were strained. The erroneous admission of evidence that is merely
cumulative of other admissible evidence is not grounds for reversal. Tobar
v. State, 740 N.E.2d 106, 108 (Ind. 2000).
III. Rebuttal Witnesses
A letter from Kent to Crawford was introduced by the defense.
Crawford testified that the last time she saw the letter it was in a
lavender folder on the sewing machine desk in a spare room. In rebuttal,
the State recalled witness Joey Johnson. Johnson and several others were
responsible for gathering financial documents from the Crawfords’ home
after the murder. Johnson testified that he believed he found the letter
in a leather portfolio in Kent’s car. The trial court denied Crawford’s
request to present testimony rebutting Johnson’s account of the location of
the letter. Crawford argues that a major component of the State’s case was
its attempt to prove Crawford was a liar. She contends that denying her
the chance to present testimony that would contradict Johnson as to the
location of Kent’s letter was reversible error.
This Court reviews a trial court’s exclusion of evidence on relevance
grounds for an abuse of discretion. Schwestak v. State, 674 N.E.2d 962,
964 (Ind. 1996). Given the issues in this case, we cannot say excluding
Crawford’s rebuttal evidence was an abuse of its discretion. The location
of the letter was not an issue in this case, and denying the opportunity to
present evidence on peripheral matters in rebuttal is not error. Baker v.
State, 483 N.E.2d 736, 738 (Ind. 1985). Although Crawford is correct that
her credibility was a central issue, there is no indication that Johnson’s
testimony about the location of the letter led the jury to consider
Crawford less credible. The State made no mention of this discrepancy in
its entire closing argument, despite its lengthy portrayal of Crawford as a
liar in other respects.
IV. Restitution
Pursuant to Indiana Code section 35-50-5-3(a)(4), the trial court
ordered Crawford to pay $9,960.40 in restitution for her husband’s funeral
and burial expenses. Crawford argues that she should be given credit
toward that amount for assets she assigned to the estate in exchange for an
agreement by the estate’s beneficiaries not to sue her for wrongful death.
This Court reviews a trial court’s restitution order for an abuse of
discretion. Roach v. State, 695 N.E.2d 934, 943 (Ind. 1998). A trial
court may consider a civil settlement when deciding whether to impose a
restitution order, or the amount of restitution to order. However, civil
settlements have no bearing on decisions of criminal punishment. Wininger
v. Purdue Univ., 666 N.E.2d 455, 457 (Ind. Ct. App. 1996) (“Imposition of a
restitution order is a form of punishment, and an order of restitution is
as much a part of a criminal sentence as a fine or other penalty.”)
(citations omitted); Dupin v. State, 524 N.E.2d 329, 331 (Ind. Ct. App.
1988) (“Settlements in civil cases can have no effect upon sentences meted
out in criminal cases.”). We affirm the trial court’s restitution order.
V. Sentencing
Crawford claims the trial court erred when it imposed the maximum
sentence of sixty-five years for murder. Ind. Code § 35-50-2-3 (Ind.
1998). This Court reviews trial court sentencing decisions for an abuse of
discretion. Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999). If a trial
court uses aggravating or mitigating circumstances to enhance or reduce the
presumptive sentence, or to impose consecutive sentences, it must (1)
identify all significant mitigating and aggravating circumstances; (2)
state the specific reason why each circumstance is determined to be
mitigating or aggravating; and (3) articulate the court's evaluation and
balancing of the circumstances. Id.
The trial court found three aggravating factors which we restate as:
the nature and circumstances of the crime, including her killing Kent while
he slept; and Crawford’s need for correctional treatment. The court stated
that the nature of the crime was “rather heinous” and found that Crawford’s
stealing her grandparents’ gun to use against Kent indicated that it was
premeditated. The court also noted Crawford’s lying to police after the
fact, and eventually seeking to justify her acts through her allegations of
abuse.
The court found two mitigating factors: the unlikelihood that Crawford
will commit a similar crime, and Crawford’s lack of criminal history.
However, it determined that those mitigators carried little weight because
they are factors usually present in murder cases. The court stated:
The mitigating circumstances which have been addressed, circumstances
unlikely to recur in a murder case, that’s always been the case
because obviously the victim is not going to be around to be killed
again. . . . So even though it’s listed as a mitigating
circumstance, I don’t think it’s very rational or practical in this
case. . . . The fact that there is no criminal history is true. But
I hardly think it’s a justifiable mitigator in this case because as
records many many times show, murders [sic] aren’t person[s] who
commit a lot of other types of crimes.
Although the trial court also noted the jury’s finding that Crawford
was guilty but mentally ill, it did not appear to weigh the finding in its
sentencing decision, or at least found it unpersuasive as mitigation. The
court stated:
The mental condition which has been referred to in this case, the jury
did find the defendant guilty but mentally ill, it’s interesting to
note the testimony of the professionals regarding this situation. It’s
also interesting to note . . . the fact that she’s been examined by so
many professionals and not one of them had seen fit to prescribe any
particular medication for her to overcome any mental conditions that
she may have or to prescribe any particular therapy for her to
overcome any mental conditions that she would have. And it would seem
that being incarcerated in the Madison County jail since being
arrested that mental conditions would probably be heightened because
of incarceration, depression, the upcoming trial, the potential of
incarceration and none of that seems to be [of] concern at this point
to the professionals.
Crawford contends the trial court erred by not considering her mental
illness a significant mitigating factor. We agree. Crawford’s experts
testified, and the jury apparently agreed, that Crawford was mentally ill
at the time she murdered her husband. We have previously held that a
verdict finding mental illness, combined with a defendant’s lack of
criminal history, is a significant mitigating circumstance. Mayberry v.
State, 670 N.E.2d 1262, 1271 (Ind. 1996). Further, in finding that
Crawford was in need of correctional treatment, the trial court stated that
Crawford “did not appreciate the fact that there is a process available for
people in her situation . . . well, she did appreciate it because she
started the divorce proceedings, but abandoned those and took matters into
her own hands and committed murder, rather than to continue the divorce
proceedings.” However, the trial court did not articulate how this fact
indicated that Crawford was in need of correctional treatment beyond that
prescribed by the presumptive sentence. Walter v. State, 727 N.E.2d 443,
447 (Ind. 2000); Wooley v. State, 716 N.E.2d 919, 930 (Ind. 1999).
Finally, witnesses testified to Crawford’s character and Crawford expressed
remorse for what she had done. Yet the trial court made no mention of this
evidence when imposing sentence.
In sum, we find no significant aggravating factors, and some
mitigating. Giving deference to the trial court’s minimal finding based on
the circumstances of the crime, pursuant to Article VII, Section 4 of the
Indiana Constitution, we revise Crawford’s sentence to the presumptive
fifty-five years. Crawford also contends her sixty-five year sentence was
manifestly unreasonable. Because of our decision revising her sentence to
fifty-five years, this claim is moot.
Conclusion
We affirm Crawford’s conviction for murder and remand with
instructions to reduce Crawford’s sentence to fifty-five years.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.