ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine A. Cornelius Jeffrey A. Modisett
Marion County Public Defenders Office Attorney General of Indiana
Indianapolis, Indiana
Randi E. Froug
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
SHIRLEY MITCHELL, )
Defendant-Appellant, )
)
v. ) 49S00-9803-CR-163
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9612-CF-193960
________________________________________________
On Direct Appeal
April 18, 2000
DICKSON, Justice
The defendant, Shirley Mitchell, was convicted of murder[1] and
neglect of a dependent, a class B felony.[2] The victim was her
granddaughter. For murder, the trial court ordered a sentence of sixty-
five years but suspended five years. For neglect of a dependent, the trial
court entered the conviction as a class D felony and sentenced the
defendant to three years. The sentences were to be served concurrently.
On appeal, the defendant claims seven errors: (1) erroneous
admission of hearsay testimony; (2) inappropriate comments by the trial
court; (3) improper admission of autopsy photographs; (4) jury misconduct;
(5) inconsistent jury verdicts; (6) improper and confusing instructions on
lesser-included offenses; and (7) use of an inappropriate aggravating
factor in sentencing. In its appellee’s brief, the State also claims
error, asserting that the trial court improperly modified the conviction
for neglect of a dependent from a class B felony to a class D felony.
Hearsay Evidence
The defendant claims that the trial judge erred by allowing a social
worker to testify regarding comments made by Auinia, the murder victim's
sister, during counseling sessions conducted after the victim's body was
discovered. Auinia was nine years old when the counseling began and when
she testified at trial.
On the evening of November 11, 1996,[3] the defendant repeatedly
struck her six-year-old granddaughter, Emporia, with a two-foot-long wooden
rod. Auinia, Emporia's older sister and also the defendant's
granddaughter, was present and observed the beating. On the morning of
November 12, 1996, the defendant woke Auinia and told her that Emporia was
not breathing. Auinia observed as the defendant wrapped Emporia's body in
a sheet and bedspread and hid it in a locked outdoor closet. The defendant
told Auinia not to tell anyone about what happened to Emporia, saying that
"it would be all [Auinia's] fault" and that the grandchildren would have to
go to foster homes. Record at 663. Emporia's body was discovered by the
authorities on December 11, 1996. On December 18, 1996, Auinia began
receiving counseling from a social worker. During a counseling session on
January 21, 1997, Auinia first told the social worker that the defendant
told Emporia to "die, die" while the defendant was beating her. Record at
931.
The trial of the defendant began on October 14, 1997. On October 15,
1997, Auinia testified that, during the beating incident, the defendant
told the victim to "die and different things like bad words and just
telling her to die." Record at 658. To the question whether the defendant
was saying this when she was hitting the victim with the stick, Auinia
answered, "No." Record at 659. On cross-examination, defense counsel
asked Auinia whether she had spoken with certain people about the beating,
including the social worker, and Auinia indicated that she had. Defense
counsel asked Auinia the following: "Now you also indicated—you also told
[one of the prosecutors] that when your grandma was—was hitting Emporia
that she was saying some bad things; right?" Record at 680. After Auinia
answered in the affirmative, defense counsel asked: "And then you told
[that same prosecutor] that she—she said something about Emporia dying;
right?" Record at 680. Auinia responded, "Yes." Record at 680. This was
followed immediately by the following:
Defense Counsel: Now when Detective Hornbrook and Detective Buttram
talked with you, you also told them that she said something. Do you
remember that?
Witness: Yes.
Defense Counsel: Okay. And do you remember saying that she just
said—that your grandma just said that she was going to whip Emporia
until she told the truth?
Witness: No.
Record at 680. Shortly thereafter, the following questioning occurred:
Defense Counsel: Okay. And you have stated that—that she was—she was
hurting Emporia.
Witness: Yes.
Defense Counsel: And that she was, at that time in the bedroom, that
she was saying things to her.
Witness: Yes.
Defense Counsel: Okay. Now, do you recall telling Detective Buttram
and Detective Hornbrook that your grandma said to Emporia at that
time, I'm going to whip you and if you don't tell me the truth, you
know, then it's going to be worse. Do you remember telling Detective
Hornbrook and Detective Buttram that?
Witness. No.
Record at 683.
Later in the trial, when the State asked the social worker on direct
examination whether Auinia had talked with the social worker specifically
about what the defendant was saying while she was beating Emporia, the
defendant objected to the testimony as hearsay, arguing that the testimony
did not satisfy the requirements of Indiana Evidence Rule 801(d)(1)(B).
The defendant argued that, on cross-examination of Auinia, she had simply
presented a statement that was inconsistent with what she had testified to
and did not suggest that Auinia had falsified a statement or fabricated
testimony. Regarding the admission of the social worker's testimony,
defense counsel argued:
Your Honor, we would note also that I never asked Auinia about that
question [whether the defendant said "die, die"] on cross-examination
at all. I never asked her. I never said isn't it true that [the
defendant] never said that. I said—I never said to her, isn't it true
that you did not make the statement to Detective Hornbrook. I never
asked her, isn't it true that you didn't tell us this in the
deposition. [The State] is absolutely wrong. All I did was present
to the jury an additional statement that she had made or another
statement that she had made. I did not make any follow up there that
it was a statement that was in contrast with the die, die, die. I
didn't touch it. Therefore, it clearly isn't at issue. It simply
isn't.
Record at 928. The trial court remarked that "that's not my recollection,
counsel," and indicated that defense counsel had made such "inferences"
during cross-examination. Record at 928, 930.
The trial court overruled the defendant's objection and indicated that
it would allow limited testimony by the social worker on this matter. The
social worker then testified that Auinia told her that the defendant had
said "die, die" to Emporia while she was beating her. Record at 931.
A ruling on the admissibility of an arguably hearsay statement is
within the sound discretion of the trial court. Horan v. State, 682 N.E.2d
502, 511 (Ind. 1997) (citing Jones v. State, 655 N.E.2d 49, 56 (Ind.
1995)); Taylor v. State, 587 N.E.2d 1293, 1302 (Ind. 1992)). We will
reverse "'only where the decision is clearly against the logic and effect
of the facts and circumstances.'" Jackson v. State, 697 N.E.2d 53, 54
(Ind. 1998) (quoting Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997)).
Even if a trial court errs in admitting hearsay evidence, we will only
reverse when the error is inconsistent with substantial justice.
Timberlake v. State, 690 N.E.2d 243, 255 (Ind. 1997). Thus, evidence
improperly admitted under Indiana Evidence Rule 801(d)(1)(B) will not give
rise to a new trial if its "'probable impact on the jury, in light of all
the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.'" Bouye v. State, 699 N.E.2d 620, 626
(Ind. 1998) (quoting Brown v. State, 671 N.E.2d 401, 408 (Ind. 1996)). See
also Ind. Evidence Rule 103(a); Ind. Trial Rule 61.
Although hearsay evidence is generally not admissible, Indiana Rule of
Evidence 801(d)(1)(B) provides that a statement is not hearsay if "[t]he
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."
Challenging the trial court's ruling allowing the testimony, the
defendant contends first that Auinia's prior statement was not consistent
with her trial testimony. We disagree and find Auinia's prior statement
sufficiently consistent with her trial testimony. In both statements,
Auinia described the defendant, at approximately the same time, hitting
Emporia and speaking about Emporia dying. Minor inconsistencies between
trial testimony and prior statements do not necessarily render the prior
statements inadmissible for purposes of Indiana Evidence Rule 801(d)(1)(B).
Brown, 671 N.E.2d at 407.
The defendant also contends that her defense counsel neither
challenged the veracity of Auinia's testimony nor expressly or implicitly
suggested that Auinia's testimony was a fabrication or that someone had
improperly influenced the testimony. Because the defense cross-examination
presented a prior statement and thereby suggested that Auinia had
previously described the earlier incident without mentioning that the
defendant told Emporia to die, we find that the defense implied that Auinia
had fabricated her trial testimony.
Finally, the defendant challenges the trial court ruling by urging
that the prior statement was made after the motive to fabricate would have
arisen. The defendant contends that, if there was ever an improper motive
on the part of Auinia, it would have existed prior to the statement she
made to the social worker. The State responds that the defendant implied
that Auinia fabricated her "die, die" testimony while preparing for trial
and argues that Auinia made the statement to the social worker before any
such motive for fabrication would have arisen. Because this is not an
unreasonable interpretation of the record, we decline to find an abuse of
discretion on the issue of whether the implied fabrication preceded the
motive to fabricate.
We hold, therefore, that the trial court did not abuse its discretion
in allowing the social worker to testify as to comments made by Auinia in
January of 1997, nearly nine months before trial.
Comments by the Trial Court
The defendant contends that she was denied a fair trial because the
judge made inappropriate comments during the trial regarding the evidence.
Specifically, the defendant argues that the judge improperly repeated and
emphasized the most damaging portion of one witness's testimony, improperly
asked another witness to speak up as that witness provided damaging
testimony and later emphasized the credibility of that witness, and
improperly emphasized the importance of comments the defendant made to a
bystander after Emporia's body was discovered.
At trial, the defendant failed to object to these allegedly
inappropriate comments by the judge. A failure to object at trial results
in waiver of the issue on appeal. Cf. Isaacs v. State, 673 N.E.2d 757, 763
(Ind. 1996) (a defendant waives possible error concerning the prosecutor's
comments when he fails to object to the argument at trial); Ware v. State,
560 N.E.2d 536, 538 (Ind. Ct. App. 1990) (the failure to include
allegations of bias and prejudice on the part of the trial judge in the
motion to correct error results in a waiver of the right to have this issue
considered on appeal); Lahrman v. State, 465 N.E.2d 1162, 1168 (Ind. Ct.
App. 1984) (a prompt objection to a trial court's allegedly improper
conduct is required to preserve the issue on appeal). The correct
procedure to be employed when a judge makes an allegedly improper comment
is to request an admonishment and, if further relief is desired, to move
for a mistrial. Isaacs, 673 N.E.2d at 763. Failure to request an
admonishment or move for a mistrial results in waiver of the issue. Id.
Seeking to avoid procedural default, the defendant, citing Kennedy v.
State, 258 Ind. 211, 280 N.E.2d 611 (1972), and Ware, 560 N.E.2d 536, urges
that this claim is not foreclosed because the judge's comments constitute
fundamental error. We acknowledge that Indiana appellate courts have on
rare occasions determined that the comments of a judge constituted
fundamental error.[4] These cases do not, however, establish as a rule
that any improper comment by a trial judge will constitute fundamental
error and thereby avoid the need for contemporaneous objection.
The fundamental error exception is extremely narrow. To qualify as
fundamental error, "an error must be so prejudicial to the rights of the
defendant as to make a fair trial impossible." Willey v. State, 712 N.E.2d
434, 444-45 (Ind. 1999) (citations omitted). To be fundamental error, the
error "must constitute a blatant violation of basic principles, the harm or
potential for harm must be substantial, and the resulting error must deny
the defendant fundamental due process." Wilson v. State, 514 N.E.2d 282,
284 (Ind. 1987). See also Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998)
("This Court views the fundamental error exception to the waiver rule as an
extremely narrow one, available only 'when the record reveals clearly
blatant violations of basic and elementary principles [of due process], and
the harm or potential for harm [can]not be denied.'") (quoting Warriner v.
State, 435 N.E.2d 562, 563 (Ind. 1982)). After reviewing the judge's
comments, we decline to permit the defendant to avoid procedural default
upon her claim of fundamental error. The judge's remarks merely required
witnesses to speak audibly and asserted reasonable management of the
proceedings.
Admission of Photographs
The trial court admitted six autopsy photographs into evidence. The
defendant contends that the trial court abused its discretion in admitting
three of these photographs, State's exhibit numbers 19, 21, and 26,
claiming that they were unfairly prejudicial.[5] The defendant claims that
the primary effect of these photographs was to sway the emotions of the
jury. At trial, the defense objected to the admission of these
photographs, arguing that the post-mortem changes to the body caused the
photographs to be more prejudicial than probative, that one of the
photographs was duplicative, and that injuries in one photograph did not
appear as they did at the time of death, were not caused by the defendant,
and thus would confuse the jury. The defense did not object to the
admission of the three other photographs. The State responds that the
pathologist testified that the photographs accurately represented the
appearance of Emporia's body at the time of the autopsy, that the
pathologist used the photographs to explain and illustrate the many
injuries to various parts of Emporia's body, and that the pathologist
explained that the post-mortem changes to her body had nothing to do with
her injuries.
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 abuse of discretion. Byers v. State, 709
N.E.2d 1024, 1028 (Ind. 1999); Amburgey v. State, 696 N.E.2d 44, 45 (Ind.
1998). Relevant evidence, including photographs, may be excluded only if
its probative value is substantially outweighed by the danger of unfair
prejudice. Evid. R. 403; Byers, 709 N.E.2d at 1028. "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."
Amburgey, 696 N.E.2d at 45. See also Byers, 709 N.E.2d at 1028.
Photographs, even those gruesome in nature, are admissible if they act as
interpretative aids for the jury and have strong probative value. Spencer
v. State, 703 N.E.2d 1053, 1057 (Ind. 1999); Robinson v. State, 693 N.E.2d
548, 553 (Ind. 1998).
The challenged photographs depicted various parts of Emporia's body
from different angles, were relevant, had strong probative value, and
served as interpretative aids for the jury in understanding the number and
location of injuries inflicted upon Emporia's body. At least one
photograph admitted without objection also depicted post-mortem changes to
the body. We find that any potential for prejudice does not substantially
outweigh the probative value of the photographs. Thus, we conclude that
the trial court did not abuse its discretion by admitting the photographs.
Jury Misconduct
The defendant also claims that the trial court erred in denying her
motion to correct error, alleging that jury misconduct required a new
trial. Based on an article that appeared in the Indianapolis Star, the
defendant argued that the jury reached its verdict after conducting an
impermissible experiment during deliberation in which the jury foreman
allegedly beat the back of a leather chair fifty times with the two-foot-
long wooden rod that had been introduced into evidence. The defendant
urged that, by conducting this experiment, the jury improperly considered
extrinsic evidence because the jury experiment constituted additional
evidence supplementary to that introduced during the trial. The defendant
claimed that she had a right to be present during this examination of the
evidence. As relief for this alleged error, the defendant requested an
evidentiary hearing to ascertain the existence, nature, and content of the
alleged jury experiment and to present juror testimony and affidavits
regarding the possible existence of extraneous influences upon the jury
deliberations and a new trial.
In ruling on the defendant's motion to correct error, the trial court
entered findings of fact and conclusions of law. The trial court found
that an unverified allegation contained in a newspaper article alone is not
sufficient to constitute newly discovered evidence. The court held that,
even if the newspaper article is factual, the foreman's actions constituted
permissible examination of the evidence and not an improper extra-judicial
experiment. The trial court noted that the wooden rod had been admitted
into evidence and that the State, during closing argument, had conducted a
similar examination with the rod and argued that the jury should imagine a
child being hit similarly, up to fifty times. Finding no evidence of
improper jury experimentation, the court concluded that the defendant had
no right to be present during the jury's permissible examination of the
evidence during its deliberation. The State contends that the jury
properly examined intrinsic evidence, which had been introduced at trial,
and thus that the trial court correctly determined that the jury did not
consider additional or extrinsic evidence.
In a motion to correct error, a party may address newly discovered
material evidence, including alleged jury misconduct. T.R. 59(A). When
reviewing a trial court's denial of a motion to correct error on newly
discovered evidence, the standard of appellate review is deferential, and
we will reverse only when the trial court has abused its discretion.
Francis v. State, 544 N.E.2d 1385, 1388 (Ind. 1989); Moredock v. State, 441
N.E.2d 1372, 1373 (Ind. 1982). The burden is on the appellant to show that
the newly discovered evidence meets the prerequisite for a new trial.
Francis, 544 N.E.2d at 1388; Reed v. State, 479 N.E.2d 1248, 1252 (Ind.
1985).
We have repeatedly noted that, at common law, a verdict was not
subject to impeachment by evidence from the jurors who returned it. See
Karlos v. State, 476 N.E.2d 819, 824 (Ind. 1985); Fox v. State, 457 N.E.2d
1088, 1092 (Ind. 1984) (citing cases). Indiana's evidence rules
incorporate this prohibition but permit exceptions in three instances:
Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring during
the course of the jury's deliberations or to the effect of anything
upon that or any other juror's mind or emotions as influencing the
juror to assent to or dissent from the verdict or indictment or
concerning the juror's mental processes in connection therewith,
except that a juror may testify (1) to drug or alcohol use by any
juror, (2) on the question of whether extraneous prejudicial
information was improperly brought to the jury's attention or (3)
whether any outside influence was improperly brought to bear upon any
juror. A juror's affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from
testifying may not be received for these purposes.
Evid. R. 606(b). In Kennedy v. State, 578 N.E.2d 633, 640-41 (Ind. 1991),
cert. denied, 503 U.S. 921, 112 S.Ct. 1299, 117 L.Ed.2d 521 (1992), we held
that the actions of two jurors, who were of height and build similar to the
defendant, in trying on clothing introduced into evidence, constituted a
permissible examination of the evidence and not an improper extra-judicial
experiment.
In this case, the trial court admitted into evidence the two-foot-
long wooden rod used to beat Emporia. The pathologist testified that
Emporia had suffered a minimum of fifty separate injuries to her head and
body. Before closing argument, the defendant objected to the State using
the rod to beat on a table or metal bar, and the trial court limited the
State's use to striking only something soft. During closing argument, the
State used the rod to strike a bag five times and directed the jury to
consider Emporia being struck fifty times. The trial court, acting within
its discretion, allowed the admitted exhibits to be taken with the jury
into deliberation. The defendant did not object.
Even if we were to assume the accuracy of the newspaper article, an
evidentiary hearing would not be necessary because such conduct is not
improper. Thus, because such conduct would not constitute an extra-
judicial experiment requiring reversal, the defendant's right to be present
during all critical stages of trial was not violated. The trial court did
not abuse its discretion in denying the defendant's motion to correct
error.
Inconsistent and Unreliable Verdicts
The defendant contends that the jury's verdicts, finding the
defendant guilty of murder and neglect of a dependent, are internally
inconsistent and therefore unreliable. The defendant argues that, in
finding the defendant guilty of neglect, "the jury found the failure to
seek medical treatment caused Emporia's death and [the defendant's]
negligence led to the need for medical treatment." Brief of Defendant-
Appellant at 19. The defendant also argues that, in finding the defendant
guilty of murder, "the jury found she knowingly killed Emporia and the
beating, not the failure to seek medical treatment, caused her death."
Brief of Defendant-Appellant at 19. The defendant frames her argument as
follows: "Both of these propositions cannot be true. If [the defendant's]
state of mind was merely one of negligence, she cannot be also guilty of
Murder. If her state of mind was knowing, she was not negligent." Brief
of Defendant-Appellant at 19. Thus, the defendant argues that the
defendant could not have knowingly caused Emporia's death under the murder
charge and negligently caused her death under the neglect charge.
When this Court reviews a claim of inconsistent jury verdicts, we
will take corrective action only when the verdicts are "extremely
contradictory and irreconcilable." Jones v. State, 689 N.E.2d 722, 724
(Ind. 1997). See also Hodge v. State, 688 N.E.2d 1246, 1248 (Ind. 1997)
("'Verdicts may be so extremely contradictory and irreconcilable as to
require corrective action.'") (quoting Jackson v. State, 540 N.E.2d 1232,
1234 (Ind. 1989)); Butler v. State, 647 N.E.2d 631, 636 (Ind. 1995)
("[T]his court will 'review findings and verdicts to determine whether they
are consistent; however, perfect logical consistency is not demanded and
only extremely contradictory and irreconcilable verdicts warrant corrective
action by this Court.'") (quoting Hoskins v. State, 563 N.E.2d 571, 577
(Ind. 1990)) (emphasis omitted). Furthermore, we will not attempt to
interpret the thought process of the jury in arriving at its verdict, and
perfect logical consistency is not required. Jones, 689 N.E.2d at 724;
Butler, 647 N.E.2d at 636. See also Hodge, 688 N.E.2d at 1249 ("'In
resolving such a claim, the Court will not engage in speculation about the
jury's thought processes or motivation.'") (quoting Jackson, 540 N.E.2d at
1234).
In this case, the State charged the defendant with knowingly killing
Emporia Pirtle, by striking her with a wooden stick, thereby inflicting
mortal injuries and causing her to die. To convict the defendant of
murder, the jury had to find beyond a reasonable doubt that the defendant
knowingly killed Emporia. Ind. Code § 35-42-1-1. To prove that the
defendant acted knowingly, the State had to prove that the defendant was
aware of a high probability that the conduct would result in death.[6]
Ind. Code § 35-41-2-2(b) ("A person engages in conduct 'knowingly' if, when
he engages in the conduct, he is aware of a high probability that he is
doing so."); Powers v. State, 696 N.E.2d 865, 870 (Ind. 1998). See also
Brown v. State, 703 N.E.2d 1010, 1021(Ind. 1998) ("The trial court could
reasonably determine that by inflicting over twenty wounds Brown acted
'knowing' that his actions could produce death."); Horne v. State, 445
N.E.2d 976, 979 (Ind. 1983) ("[A]n act is done 'knowingly' or 'purposely'
if it is willed, is the product of a conscious design, intent or plan that
it be done, and is done with an awareness of the probable consequences.").
In determining whether a defendant was aware of the high probability that
her actions would result in the death of the victim, the duration,
severity, and brutality of a defendant's actions, and the relative
strengths and sizes of a defendant and a victim, may be considered.
Anderson v. State, 681 N.E.2d 703, 708 (Ind. 1997); Gibson v. State, 515
N.E.2d 492, 496-97 (Ind. 1987).
The State also charged the defendant with knowingly placing Emporia
Pirtle in a situation that might endanger her life or health by failing to
seek medical attention for her, which resulted in serious bodily injury and
death. To convict the defendant of neglect of a dependent, the jury had to
find beyond a reasonable doubt that the defendant, having the care of
Emporia Pirtle, a dependent, by failing to seek medical attention,
knowingly or intentionally[7] placed Emporia in a situation endangering her
life or health. Ind. Code § 35-46-1-4(a). To convict the defendant of
neglect as a class B felony, the jury had to find beyond a reasonable doubt
that the neglect resulted in serious bodily injury.[8] Id.
Under the dependent neglect statute, the level of culpability required
for knowing behavior "is that level where the accused must have been
subjectively aware of a high probability that he placed the dependent in a
dangerous situation." Armour v. State, 479 N.E.2d 1294, 1297 (Ind. 1985)
(applying Ind. Code § 35-41-2-2). Proof of this subjective awareness
requires resort to inferential reasoning to ascertain the defendant's
mental state. Barrett v. State, 675 N.E.2d 1112, 1116 (Ind. Ct. App.
1996); Kellogg v. State, 636 N.E.2d 1262, 1265 (Ind. Ct. App. 1994); Hill
v. State, 535 N.E.2d 153, 154 (Ind. Ct. App. 1989). When there are
symptoms from which the average layperson would have detected a serious
problem necessitating medical attention, it is reasonable for the jury to
infer that the defendant knowingly neglected the dependent.[9] Hill, 535
N.E.2d at 155. Also, in the context of care of a dependent, we have said
that "'[n]eglect is the want of reasonable care—that is, the omission of
such steps as a reasonable parent would take, such as are usually taken in
the ordinary experience of mankind. . . .'" White v. State, 547 N.E.2d
831, 836 (Ind. 1989) (quoting Eaglen v. State, 249 Ind. 144, 150, 231
N.E.2d 147, 150 (1967)).
The evidence adduced at trial demonstrated the following. On
November 11, 1996, with a two-foot-long wooden rod, the defendant, a fifty-
one-year-old woman, struck Emporia, a six-year-old girl, at least five
times on the head and approximately fifty times on the shoulders, back,
buttocks, arms, and legs. The defendant told the child to "die." Record
at 658. With both of her hands, the defendant choked Emporia, causing the
girl to gasp. Immediately after the beating, Emporia had visible bruises
all over her body, and she acted differently. Her mouth was swollen, and
her lips were purple. She could no longer walk after the beating. Her
older sister had to help her take a bath, and then she had to help Emporia
walk from the bathtub to where she would sleep that night.
The next morning Emporia was not breathing. The defendant wrapped
Emporia in a sheet and bedspread and put her in the storage shed located
outside the apartment, beside the patio. The defendant told Emporia's
sister, Auinia, not to tell anyone or she would have to go to a foster
home. For one month, neither the defendant nor Auinia mentioned Emporia's
death to anyone. Finally, Auinia told their mother that Emporia was dead.
On December 11, 1996, one month after the beating, paramedics responded to
an emergency call and discovered Emporia's body in the shed.
In finding the defendant guilty of murder and neglect of a dependent,
the jury could logically conclude that the defendant knowingly killed
Emporia (i.e., that she was aware of the high probability that her repeated
striking of Emporia on the head and body with the rod would result in
death), and that the defendant knowingly placed Emporia in a situation that
might endanger her life or health (i.e., that she was subjectively aware of
a high probability that she placed Emporia in a dangerous situation by
failing to seek medical attention when the average layperson would have
recognized the danger and sought help). The jury was not required to find,
and in fact did not find, that the defendant knowingly caused Emporia's
death under the murder charge and negligently caused her death under the
neglect charge. Instead, with both of the charged offenses, the jury was
required to find that the defendant acted knowingly. We hold, therefore,
that the verdicts are not inconsistent.
Confusing Instructions
The defendant argues that the trial court's instructions to the jury
on the lesser-included offenses of involuntary manslaughter and reckless
homicide were confusing, improper, and deficient.
During the conference regarding final instructions, the trial court
and the parties extensively discussed the wording of the jury instructions
explaining reckless homicide and involuntary manslaughter. The process
resulted in the trial court giving the defendant’s tendered instructions
numbers 1 and 4 as modified, and the defense withdrawing its proposed
instructions numbers 2, 3, and 5. After a recess to permit the
instructions to be prepared in final form and reviewed by counsel, the
court reconvened and asked if there were any objections. Each of the
defendant’s two lawyers separately declared that she had no objection.
Because a defendant who fails to object to an instruction at trial waives
any challenge to that instruction on appeal, T.R. 51(C); Ford, 704 N.E.2d
at 461, we find that the defendant waived this claim.
Attempting to avoid procedural default, the defendant argues that the
court's failure to explain the differences in the mens rea required for the
various offenses constituted fundamental error. Citing Clark v. State, 668
N.E.2d 1206, 1210 (Ind. 1996), and Jackson v. State, 575 N.E.2d 617, 621
(Ind. 1991), the defendant urges that fundamental error occurs when a trial
court improperly or insufficiently explains the differences in mens rea.
Unlike the present case, both Clark and Jackson involved attempted murder,
and neither addressed a claim of fundamental error for failing to explain
the difference in the mens rea required for various offenses. In Clark,
this Court reversed an attempted murder conviction, holding that, because
the trial court's instruction for attempted murder allowed conviction on
"knowingly" and did not require "intent to kill," the trial court's correct
statement in its general instructions could not cure this erroneous
instruction. Clark, 668 N.E.2d at 1210. In Jackson, the defendant, who
was convicted of attempted murder, challenged a jury instruction that the
defendant claimed failed to require the finding of proof beyond a
reasonable doubt of specific intent to commit murder, but this Court
refused to find fundamental error. Jackson, 575 N.E.2d at 620-21.
This Court views the fundamental error exception to the waiver rule as
an extremely narrow one, available only "'when the record reveals clearly
blatant violations of basic and elementary principles [of due process], and
the harm or potential for harm [can]not be denied.'" Ford, 704 N.E.2d at
461 (quoting Warriner, 435 N.E.2d at 563). We find no fundamental error.
Aggravating Factor
The defendant contends that the trial court used an improper
aggravating factor to enhance the defendant's sentence for murder.
Specifically, the defendant argues that the trial court erroneously found
as an aggravating circumstance that the imposition of a sentence below the
presumptive would depreciate the seriousness of the crime.
We have held that "the statutory aggravating factor 'imposition of a
reduced sentence would depreciate the seriousness of the crime,' . . . only
supports a refusal to reduce the presumptive sentence. The sentencing
court should not use this statutory factor when considering whether
defendant should receive less than the maximum enhanced sentence." Archer
v. State, 689 N.E.2d 678, 684 (Ind. 1997) (quoting Ind. Code § 35-38-1-
7.1(b)(4)) (other citations omitted). See also McCants v. State, 686
N.E.2d 1281, 1286 (Ind. 1997); Bacher v. State, 686 N.E.2d 791, 801 (Ind.
1997). We agree that the trial court improperly used this factor as an
aggravating circumstance.
However, a single aggravating circumstance is adequate to justify a
sentence enhancement. Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998);
Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997). When a sentencing
court improperly applies an aggravating circumstance, but other valid
aggravating circumstances exist, a sentence enhancement may still be
upheld. Gibson, 702 N.E.2d at 710; Blanche v. State, 690 N.E.2d 709, 715
(Ind. 1998). In this case, the trial court found several other aggravating
circumstances: the defendant's extensive history of criminal and
delinquent activity; the defendant's need for correctional or
rehabilitative treatment and the failure of previous rehabilitation;[10]
the heinous nature and circumstances of the crime; and the victim's age of
six years. See Ind. Code § 35-38-1-7.1. The trial court found two
mitigating factors: the defendant's remorse; and the defendant's mental
health condition.
The trial court considered these factors and determined that the
aggravating circumstances outweighed the mitigating circumstances. The
trial court imposed a sentence of sixty-five years[11] and suspended five
years, for a total executed term of sixty years.[12] Any error by the
court in using the factor of depreciation of the seriousness of the crime
as an aggravating circumstance is overcome because several valid
aggravating circumstances were found, including the age of the victim, the
heinous nature and circumstances of the crime, and the defendant's lengthy
history of criminal and delinquent activity. See Blanche, 690 N.E.2d at
715; Isaacs, 673 N.E.2d at 765 n.6 ("[T]he improper use of th[e depreciate
the seriousness of the crime] aggravating circumstance does not invalidate
a sentence enhancement where other valid aggravating circumstances are
found."). We find no reversible error on this issue.
Modification of the Defendant's Sentence
In its brief, the State contends that the trial court improperly
granted the defendant's motion to correct her erroneous sentence. The
State does not argue that the trial court or the defendant failed to follow
the prescribed procedure. Rather, the State argues that the defendant's
convictions and sentences for murder and class B felony neglect of a
dependent do not violate the double jeopardy protection against multiple
punishments for the same offense. Thus, the State claims that the trial
court erroneously found that the defendant's convictions and sentences for
murder and class B felony neglect of a dependent violated double jeopardy.
Indiana Code section 35-38-1-15 permits a defendant to file a motion
to correct sentence. See Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.
1991). Under the statute, the trial court may correct an erroneous
sentence. Ind. Code § 35-38-1-15. In Jones v. State, this Court held that
a motion to correct sentence is appropriate where the sentence is erroneous
on its face and that facial error occurs when the sentence violates express
statutory authority. 544 N.E.2d 492, 496 (Ind. 1989). If a sentence
violating express statutory authority is facially erroneous, a sentence
violating double jeopardy is also facially erroneous and may be attacked by
a motion to correct erroneous sentence. Cf. Reffett, 571 N.E.2d at 1228-29
("[A] sentence that violates the express terms of a plea agreement is . . .
facially erroneous, and [it] may be attacked by a motion to correct
erroneous sentence.").
A trial court's ruling upon a motion to correct sentence is subject to
appeal by normal appellate procedures. Thompson v. State, 270 Ind. 677,
680, 389 N.E.2d 274, 276-77 (1979). While this Court will defer to the
trial court's factual finding, reviewing only for abuse of discretion, we
will review a trial court's legal conclusions under a de novo standard of
review. Cf. Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).
In this case, the defendant filed a motion to correct sentence in
writing and a supporting memorandum of law, specifically identifying a
violation of the protections against double jeopardy found in the Fifth
Amendment to the U.S. Constitution and Article I, Section 14 of the Indiana
Constitution as the defect in the original sentence. After the State filed
its response, the trial court granted the defendant's motion and corrected
the defendant's conviction for class B felony neglect of a dependent,
modifying the conviction to class D felony neglect and entering a new
sentence of three years.
Recently, in Richardson v. State, 717 N.E.2d 32 (Ind. 1999), we
explained that two tests apply to determine whether multiple offenses
constitute the same offense under the Indiana Double Jeopardy Clause:
[T]wo or more offenses are the "same offense" in violation of Article
I, Section 14 of the Indiana Constitution, if, with respect to either
the statutory elements of the challenged crimes or the actual evidence
used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.
Id. at 49. Under the statutory elements test, A[e]ach offense must contain
at least one element which is separate and distinct from the other offense
so that the same evidence is not necessary to convict for both offenses.@
Id. at 52. Murder requires a knowing or intentional killing, which is not
required for class B felony neglect. Class B felony neglect requires
knowingly or intentionally placing a dependent in a situation that may
endanger the dependent's life or health, which is not required for murder.
The offenses are not the same under the statutory elements test.
Even though these offenses are not the same offenses under the
statutory elements test, we also apply the following actual evidence test:
[T]he actual evidence presented at trial is examined to determine
whether each challenged offense was established by separate and
distinct facts. To show that two challenged offenses constitute the
"same offense" in a claim of double jeopardy, a defendant must
demonstrate a reasonable possibility that the evidentiary facts used
by the fact-finder to establish the essential elements of one offense
may also have been used to establish the essential elements of a
second challenged offense.
Id. at 53. In Richardson, we noted that the trial court's instructions to
the jury and the presentations of counsel to the jury can be helpful to the
reviewing court in analyzing the actual evidence to determine whether the
jury used the same evidence to establish multiple offenses. Id. at 54
n.48. To convict the defendant of class B felony neglect, the State had to
prove that the neglect resulted in serious bodily injury. Ind. Code § 35-
46-1-4(a).
In this case, in the trial court's preliminary and final instructions
to the jury, the court read the charges in the murder count, which alleged
that the defendant's striking of Emporia caused Emporia to die. The court
also read the charges in the neglect count, which alleged that the
resulting serious bodily injury to Emporia was death. In its closing
argument, the State focused the jury's attention on evidence that showed
that the defendant caused Emporia's death when she severely beat her with a
wooden rod, striking the six-year-old more than fifty times on the head,
arms, back, and legs, and that the defendant knew there was a high
probability that the actions she took would result in Emporia's death. The
State also noted that, after the beating and the next morning when Emporia
was unresponsive, the defendant failed to get medical attention for
Emporia, even though she may have still been alive at that time.
Because the evidence offered to prove the resulting serious bodily
injury was the same evidence offered to prove the knowing killing, there is
a reasonable possibility that the evidentiary facts used by the fact-finder
to establish that the defendant knowingly killed Emporia may also have been
used to establish that the defendant's neglect resulted in serious bodily
injury, an element required to prove class B felony neglect. The trial
court did not err in correcting the defendant's sentence because of double
jeopardy considerations.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1.
[2] Ind. Code § 35-46-1-4.
[3] The defendant dates these incidents on or about November 6, 1996.
[4] We have held that a trial before an impartial judge is an
essential element of due process. Timberlake, 690 N.E.2d at 256 (citing
Abernathy v. State, 524 N.E.2d 12, 13 (Ind. 1988)); Harrington v. State,
584 N.E.2d 558, 561 (Ind. 1992). In Kennedy v. State, this Court refused
to foreclose a defendant's claim of improper judicial intervention, even
though the defendant had failed to object at trial, because "[a] fair trial
by an impartial judge and jury is an essential element in due process."
Kennedy, 258 Ind. at 218, 280 N.E.2d at 615. The Indiana Court of Appeals
has considered the fundamental error doctrine in cases when a defendant
claims improper judicial intervention, even when the defendant failed to
object at trial. See, e.g., Taylor v. State, 602 N.E.2d 1056, 1059 (Ind.
Ct. App. 1992) (regarding a trial judge's comments and questioning of a
witness); Ware, 560 N.E.2d at 539 (regarding a trial judge's comments and
interruptions); Spaulding v. State, 533 N.E.2d 597, 603 (Ind. Ct. App.
1989) (regarding a trial judge's remarks allegedly impeaching or
discrediting witness testimony); Decker v. State, 515 N.E.2d 1129, 1131-32
(Ind. Ct. App. 1987) (regarding a trial judge's questioning of a witness).
[5] The defendant also claims that the admission of the photographs
resulted in the pathologist testifying about "fresh" injuries. The
defendant argues that, from the use of these photographs, the jury was
allowed to make impermissible inferences that some of the injuries in the
picture were not fresh or that they were old or stale. The defendant notes
that, pursuant to her motion in limine, the judge had ruled any reference
to "old" injuries as inadmissible. The State contends that the defendant
never objected at trial to this characterization of the injuries.
At trial, after the pathologist had been sworn to testify, defense
counsel offered to stipulate the cause of death and expressed concern
regarding the extent of the pathologist's testimony and the nature of the
photographs. Defense counsel argued that "there are indications in these
photos of both old injuries and new injuries. The old injuries having
previously been Limined out in the Motion in Limine." Record at 828.
Defense counsel also explained that "the very fact that the jury is not
going to be able to tell old injuries from new injuries in the photograph
is what makes it crucial that we deal with this issue because they're going
to assume that all injuries are due to this particular situation. And
that's not the case." Record at 829. Defense counsel then requested that
the defendant be allowed to advise the jury that the defendant was willing
to stipulate the cause of death. The trial court admitted the photographs.
Referring to State exhibit numbers 19 and 26, the pathologist testified as
to "fresh" injuries depicted in the photographs and post-mortem changes to
the body. However, the defendant did not specifically object to the
characterization as the pathologist testified.
The defendant has waived this issue by failing to make a timely
objection at trial to the pathologist's characterization of the evidence.
Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999); Stevens v. State, 691
N.E.2d 412, 420 (Ind. 1997); Henderson v. State, 544 N.E.2d 507, 510 (Ind.
1989); Frith v. State, 452 N.E.2d 930, 931 (Ind. 1983).
[6] In the court's preliminary and final instructions to the jury,
the court instructed that "[a] person engages in conduct 'knowingly' if,
when he engages in this conduct, he is aware of a high probability that he
is doing so. If a person is charged with knowingly causing a result by his
conduct, he must have been aware of a high probability that his conduct
would cause the result." Record at 349, 386, 632, 996.
[7] Under the statute, the state of mind required to commit the crime
of neglect of a dependent is not negligence. Rather, a knowing or
intentional state of mind is required.
[8] The offense is a class D felony if no resulting serious bodily
injury is proven. Id. The jury returned a verdict of guilty on the charge
of class B felony neglect, and the trial court initially entered judgment
convicting the defendant of class B felony neglect. However, the trial
court later corrected its conviction and sentence for neglect, reducing the
conviction to a class D felony because of double jeopardy considerations.
See infra section discussing modification of the defendant's sentence.
[9] Courts have held that, in those cases where a defendant has been
found to possess the requisite subjective awareness, the circumstances
demonstrated that the defendant had actual knowledge that a dangerous
situation existed for the dependent. See, e.g., White, 547 N.E.2d at 836
(the defendant's knowing exposure of dependent to an environment of illegal
drug use posed danger to the dependent); Kellogg, 636 N.E.2d at 1266
(because the defendant had actual knowledge that he had consumed a
substantial quantity of alcohol and that his child was a passenger in his
vehicle, the jury could have reasonably inferred that the defendant had
actual knowledge that a dangerous situation existed); Sample v. State, 601
N.E.2d 457, 459 (Ind. Ct. App. 1992) (because the defendant had actual
knowledge of a "bump" on child's head which was later discovered to be a
skull fracture, the jury could infer that the defendant was aware she
placed child in danger by failing to obtain prompt medical treatment); Fout
v. State, 575 N.E.2d 340, 342 (Ind. Ct. App. 1991) (the jury could infer
the defendant's subjective knowledge that he placed the defendant in a
dangerous situation when the defendant was specifically informed of two
conditions of child which required immediate medical attention).
[10] In her brief, the defendant does not challenge the trial court's
use of the defendant's need for correctional and rehabilitative treatment
as an aggravator. We have held that a trial court, in using this
aggravator, must explain why the defendant is in need of treatment in a
penal facility for a period longer than the presumptive sentence. Berry v.
State, 703 N.E.2d 154, 158 (Ind. 1998); Taylor v. State, 695 N.E.2d 117,
122 (Ind. 1998); Blanche, 690 N.E.2d at 715. Although the trial court did
not articulate any reasons, the court did state that "prior attempts at
rehabilitation through probation and imprisonment in the past have all
failed." Record at 1097. Any error by the court in failing to explain its
reasons for finding that the defendant was in need of correctional and
rehabilitative treatment that could best be provided by a period of
incarceration in excess of the presumptive term is harmless considering the
other aggravating factors, including the age of the victim and the
defendant's lengthy history of criminal and delinquent activity. See
Blanche, 690 N.E.2d at 715.
[11] At the time of the murder, the presumptive sentence for murder
was fifty-five years, with not more than ten years added for aggravating
circumstances. Ind. Code § 35-50-2-3.
[12] For the neglect conviction, the trial court weighed the same
aggravating and mitigating circumstances, sentenced the defendant to twenty
years, and suspended two years, for a total executed sentence of eighteen
years. The trial court ordered this sentence to run concurrently with the
sentence for murder. Because of double jeopardy considerations, the trial
court later corrected the defendant's sentence for neglect, reducing the
conviction from a class B felony to a class D felony and sentencing the
defendant to three years with no years suspended and with the sentences
running concurrently. See infra section discussing the modification of the
defendant's sentence.