ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine A. Cornelius Jeffrey A. Modisett
Marion County Public Defenders Office Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
INDIANA SUPREME COURT
SHIRLEY MITCHELL, )
v. ) 49S00-9803-CR-163
STATE OF INDIANA,
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9612-CF-193960
On Direct Appeal
April 18, 2000
The defendant, Shirley Mitchell, was convicted of murder
See footnote and neglect of a dependent,
a class B felony.See footnote 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 appellees 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.
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,See footnote 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 indicatedyou also told [one of the prosecutors] that
when your grandma waswas 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 sheshe 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?
Defense Counsel: Okay. And do you remember saying that she just
saidthat your grandma just said that she was going to whip Emporia until
she told the truth?
Record at 680. Shortly thereafter, the following questioning occurred:
Defense Counsel: Okay. And you have stated thatthat she wasshe was
Defense Counsel: And that she was, at that time in the bedroom,
that she was saying things to her.
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?
Record at 683.
Comments by the Trial Court
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
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 saidI 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.
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.
See footnote 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.
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.
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
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
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.
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
See footnote 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.
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.
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 carethat 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.
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 defendants 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 defendants 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.
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
See footnote 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
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
and suspended five years, for a total executed term of sixty years.See footnote
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
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
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.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1.
Ind. Code § 35-46-1-4.
The defendant dates these incidents on or about November 6, 1996.
Footnote: 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).
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).
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.
Footnote: 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.
Footnote: 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.
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.
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).
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.
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.
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