*1 23G ruling presump- persuaded am not that the was er- of that application The
grounds). correct; applica- its Kennedy ror, considering single was upon tion basis that knowledge. Peterson had no first hand incorrect. tion here is view, my intended to relieve In the state satisfied its burden presumption is showing custody, proving a sufficient chain of from the burden the state possession who maintained the officials not error and for such reason it was tamper or alter an item did control of of Peterson. admit the test results where, example, an item operates it. It to another public one official is sent from admissibility in such
by mail. To establish identify each need not the state
instances possession through whose postal employee reach- might have travelled before
the item manner, the In like ing its destination. Jr., CLEMENS, Appellant, L. James property room identify each state need not duty an item while attendant who was kept was there. Indiana, Appellee. STATE of gathered was Kennedy, In No. 34S00-9103-CR-248. an FBI and mailed to labo- from the seene ratory. the confines of labora- Within Supreme Indiana. Court of FBI passed between an tory the evidence March testing in the agent and a technician lab Rehearing May Denied procedure. standard process. This was whether there was The claim raised was custody with- sufficient chain of
proof of a prop- laboratory, and that claim presump-
erly resolved on basis care, and the lack of official due
tion of by presumption show- evidence to rebut
ing tampering or alteration. contrast, question is not by laboratory
handling within the Lowell testing process. It during the
technicians reached how the items
is instead when and Indianapolis laboratory from the
the Lowell Peterson, Fortunately,
laboratory. laboratory, de- the Lowell
technician procedures at lab- custody both
scribed the testified that the evi- and further
oratories Indianapo- transported from
dence was laboratory by laboratory to the Lowell
lis backlog of Trigg due to a Sergeant one laboratory and Indianapolis at the
work deputized for such Trigg had been Peterson cross-examination
purpose. On Trigg personally seen she had not
admitted Indianapolis evidence from
pick up the labo- it to the Lowell
laboratory and deliver hand upon this lack of first
ratory. Based hearsay objection
knowledge, an ap-On made and overruled.
grounds I ruling presumptively valid.
peal that *3 taking
house Jerrel with him. She took the appoint- other children to the doctor at the time, they ed and when returned home note, p.m. she found a suicide about 1:80 floor, lying on the kitchen and rat family poison Appellant's all around. then Defender, Carpenter, Public K. Susan arrived, explaining he had called them Hollander, Indianapolis, Special Eugene C. involving Af- about a car accident Jerrel. Public of the State Asst. to the Office notified, appellant ter authorities were Defender, appellant. hospital. and at the treated at the scene only injuries Pearson, Gen., He was released when his Atty. Michael Linley E. bump on his Gen., were found to be a small Worden, Atty. ap- Deputy Gene *4 a small on his chest. forehead and abrasion pellee. dead, Jerrel, however, was found to be up in the back seat of GIVAN, covered Justice. car. in juryA resulted the conviction explained he had taken Jerrel Appellant Neglect of a De-
appellant of Murder and along job him on a interview and while Resulting Bodily Injury, in with pendent Serious avoid driving, he slammed on his brakes to felony. He received concurrent a B Class Jerrel, car caused hitting another which (10) (60) ten sixty years and sentences of seat, standing on the front to be who was respectively. years, into the windshield. thrown In facts are: November having Jerrel claimed that because was lived in Kokomo appellant and his wife breathing, he administered CPR trouble children, including three Jerrel with their hospi- to find a and drove back to Kokomo Ap- three-year-old twins. their way, appel- died on the tal. When Jerrel job packing off from his at a pellant, laid he feared no lant drove on home because primary as plant Logansport, in served story. He then tele- one would believe his their moth- for the children while caretaker in Muncie and left a phoned parents Chrysler. Appel- second shift er worked wife, although for his he could suicide note in surreptitiously moved back with lant had suicide. bring not himself to commit in 1989 after and children October his wife Investigation revealed no blood on the in case having court-ordered a CHINS been body. He did have bruis- car or on Jerrel's to reside else- previous November "accidents" upper body and small then numerous where. Since neck and es about his forehead, chest and hand. Jerrel, including falling off his cuts on his had befallen had not been observed Some of bruises stairs, and down the basement bunk bed re- autopsy An previously by his mother. bruising had resulted serious which injuries of vealed numerous bruises medi- parents had failed to seek including panere- lacerated ages, a Mrs. Cle- various On November cal treatment. (abdominal mesentery connec- as and torn the children to planned to take mens fungal tissue). The cause of death was deter- of a infection for treatment doctor tive syndrome child evi- battered leg. Appellant mined to be spot a on Jerrel's as well as force abdominal by extensive blunt leg to the denced to show Jerrel's told her not bleeding. internal with resultant notify child wel- trauma fear he would doctor for were found ap- injuries These to Jerrel Evidence showed fare authorities. to ones suffered remarkably similar enraged and resort become pellant would brother, Jordan. year by his twin previous whenever one corporal punishment acci- potty-training have a the twins 6, 1989, appellant and both November On dent. with charged by information were his wife resulting in serious dependent neglect to wake Mrs. Clemens went When autop- bodily injury. On November to her morning, she found children and the police report released to sy already left appellant surprise that prej tion, both appellant must demonstrate charged in a appellant was following day, juror inability pretrial publicity and udicial murder. count with second the evi impartial verdict on render an erred the trial Appellant contends dence. venue change of denying his motions jury to County, for a test Howard from venue, change of To change of ven- for a the need demonstrate publicity con must show In jury. ue, sequestration and for ad inflammatory material not either tained pretrial the extensive he details support, distor or misstatements or missible at trial newspaper including numerous publicity, Id. This evidence. tions of the reports news disseminat- and radio articles done; pretrial publicity has up to death day after Jerrel's from the ed only of factual infor consisted instant case The news year later. trial a day trial; during while later mation they unfolded reported events coverage "preju it was not undoubtedly prejudicial, to the authorities. known became as it change-of-venue context dicial" information specific detail They reported admissi of evidence merely cumulative police with appellant's interview including appellant satisfied at trial. Nor has ble appel- conclusion and the coroner's showing jurors prong by the seated second considered seenario "is to be lant's accident any preconceived aside unable to set absolutely absurd." guilt and decide the case notions of *5 hearing, appellant pretrial In a portion cites no Appellant evidence. publicity pretrial the extensive evidence of partiality on revealing unresolved dire voir demonstrate jury a test requested trial. who heard his part any jurors of preju- community of bias the existence an has failed to demonstrate Appellant request, the trial court At the State's dice. deny discretion of the trial court's abuse had been ruling until voir dire his deferred change venue. motion for of ing his that judge then concluded completed. motion for a test appellant's As for any generated trial had not Ind., (1986), 494 jury, Boyd v. State cases in previous had publicity than more denied, 284, 294, 479 U.S. cert. N.E.2d juries had past test county, and that (1987), 910, 1046, LEd.2d 860 107 93 S.Ct. helpful. He denied not been cites us to "Defendant this Court stated: seques- then moved Appellant motions. know jury, a test and we authority for He also was denied. jury, which ter the body unknown to our a is of none. Such trial due to denied a fair maintains tell us does not legal process. Defendant by the community outrage as evidenced drawn, or to constituted it is to be how that coverage, the fact media widespread error in the court's We find no deliberate. lost friends personally counsel trial Later, in Bur procedure." of this denial and the appellant, merely by representing 1085, Ind., (1987), N.E.2d 515 v. dine State excused on its own court fact the trial while a 1092, "that this concluded Court panel of jurors from prospective fifteen re obligated grant a not trial court is dire. the outset of voir sixty at pro not jury, the court is test quest acknowledges, citing appellant As Such a granting either. from hibited Ind., (1984), N.E.2d 1380 465 v. State Gillie of sound discretion request lies within the cases, change in order to obtain other Appellant has not demon the trial court." showing of the burden venue he bears he was harmed strated how exists which community prejudice that communi jury quantify a test to conduct trial in obtaining a fair his prevent would prejudice on the ty He has shown bias. appeal community, prevail and to that find no jurors. thusWe part of the seated must he of his motion the denial from court's deni in the trial of discretion abuse court's of the trial an abuse demonstrate jury. test al of his motion out, citing points As the State discretion. seques appellant's motion As for Ind., (1990), N.E.2d Evans v. State in all cases recognizes that jury, he ter the of discre 1251, such an abuse to establish scenario, as accident argues his traffic offense, lant sequestra- capital charged as a not wife, testimony his through the related discretion, court of trial a matter tion is Ind., par- mother, policemen and a sister, two citing Harris giving amedic, amply suffices now shoulders he and that defendant is true that a It his instruction. any jurors establishing whether burden any defense an instruction on is entitled publici- prejudicial actually exposed to in the evidence. foundation has some 428 which citing ty, Sanders afore- Smith argues the v. State however, bar, in the case publicity satisfies The situation pretrial mentioned Brown v. in the case of that newspaper parallels lengthy burden, particularly in which of events sequence recounting the article began. Shepard wrote: trial day Justice published defendant has criminal "While a sequestration purposes For trial, testify at right not to constitutional however, at issue publicity motions, proof has the burden the defendant gener coverage rather but pretrial not In this case defense. any affirmative itself; to during the trial reported ated and pres- trial or testify at did not exposure, prejudicial demonstrate support his affirma- ent other evidence jury was someone must show have While defendants tive defenses. during the coverage media exposed to the trial strate- to choose prerogative avoided sequestration them, appellant can- best for gy deemed Rankin prejudice. See juror particular to a exculpatory statements make Having present no psychiatrist, appointed ap exposure, to establish failed defense, preclude on his any abuse of demonstrated has not pellant cross-examining appellant's from seques motion to denying discretion psychiatrist, through the made assertions jury. ter *6 self-serving state- expect such and then denying err in did not court The trial evidence substantive to constitute ments venue, change of motions appellant's instructions." his tendered jury. and a test sequestration never testi appellant where the trial Appellant contends de in his any evidence nor offered fied in give his tendered refusing to in erred evidence medical fense, all the where and His of accident. the defense on struction death was that Jerrel's concluded flatly 8 would No. Instruction Final Proposed Brown, supra in accident, we conclude prohibited con that the informed secondhand, self-serving have appellant's that the result it is when may excused duct through reiterated even where explanation, ele the three defined accident of an witnesses, not consti does different several of acci defense affirmative of the ments support evidence tute substantive refusal trial court's of the review dent. On court thus The trial instruction. tendered tripar instruction, apply a we of a tendered refusing it. err did not correct instruction 1) the whether test: tite is insuf- evidence contends is evi law; 2) there whether ly states He bas- his convictions. support ficient it; giving support record dence upon his additional part argument es his covered was its substance 3) whether in ad- court erred that the contention Matheney v. given. instructions by other inflicted injuries of similar mitting evidence 1202, cert. Ind., N.E.2d (1992), 583 broth- twin upon Jerrel's year previous - 2320, 119 --, 112 S.Ct. denied, U.S. in Novem- Jordan, hospitalization er, whose concedes, As the 238. LEd.2d (CHild In Need of to a CHINS led 1988 ber appellant is tendered instruction pattern order resulting in a court Services) action the law. statement correct visita- private to have appellant forbidding objec- Over Jordan. tion with evidence dispute is whether The wit- numerous given by tion, testimony was Appel- instruction. giving supported Jordan, injuries to concerning the Lannan nesses 1334, who 1336 n. pathologist Squires, the Dr. Jeff Jerrel, on testified autopsy performed apply to cases held has been Lannan inju- blunt-force abdominal pattern appeal when Lonnan on direct pending year before was his twin ries found v. State decided. Pirnat was that except Jordan "amazingly similar them." fewer of above, to purpose specified the admissi attack two-pronged In a accident, or of mistake the absence show concerning bility of the the admission to allow seems tailor-made "no witness that points out first appellant abuse of Jordan the Defendant saw they ever that testified injuries accidental claim that rebut his either Jer- upon injuries any type of inflict death. twin's of the other the cause proof he was Jordan," thus rel or v. State In Davidson was injuries to Jordan responsible for the defen 1077, evidence of we held "clearly introduced, so ever drowning of uncharged previously dant's to be allowed the State improper for proceeds insurance to secure first child her find the Defendant jury to encourage the of accident her claim to rebut was relevant upon the non- cause based guilty in this her see- drowning death of assump non-charged, non-asserted proven, charges child, joinder ond Defen to the acts attributed tions about appropri court's discretion at the trial Also, cit action." CHINS dant Jordan's ate. (1989), Ind.App., 544 ing Johnson upon this in turn relies above, appellant As alluded Clark decision Court's proof sufficient was not there argues argues him to Jordan's trial to connect shown proven to whether regardless of perpe to his them relevant to make injuries them, injuries were Jordan's inflicted As injuries. of Jerrel's tration he had to show inadmissible generally maintains, must be suffi there correctly even sons-that his twin to beat propensity finding at trial cient abuser, "principles of a child to be if shown committed the accused jury that a defendant insist jurisprudence American under admissible for it to be act similar rather than done he has for what be tried 404(b) v. United Huddleston F.R.Evid. Johnson, supra at he is." for what 681, 108 U.S. S.Ct. States *7 the de- eliminating opinion recent In a in accord Indiana law is 771. L.Ed.2d in- to the exception instinct sexual praved See, v. eg., Hill requirement. this with acts, prior bad of admissibility of evidence entirety Federal adopted in its this Court the defen However, evidence direct provides: 404(b), which Evidence Rule of is not prior bad act the perpetrated dant crimes, wrongs or of other "Evidence evi circumstantial required. "[SJubstantial prove the char admissible acts is not sufficient, and probative value" of dence action to show in order person acter of atti "negative the defendant's of evidence may, It howev conformity therewith. of the rough treatment tude toward purposes, for other er, admissible sur as the circumstances baby, as well motive, in opportunity, proof of such as child's sus of the appearance rounding the knowledge, iden tent, plan, preparation, probative of held has been injuries," picious accident, or mistake of tity, or absence similar of the commission the defendant's ac by the upon request provided that testimony Nor is at 996. acts. Id. case in a criminal cused, prosecution required. act Wat prior bad victim of in ad notice reasonable provide shall v. kins trial, during trial if the or vance of maintains, case the instant As good cause notice pretrial excuses of direct evidence presents of such shown, nature general of Jerrel, but or Jordan battery of either at trial." introduce intends to it evidence evidence, including evidence of similar tial of circumstantial a wealth record contains upon sibling as in David inflicted abuse Hill, evidence, including testimony as to- attitude as the son, identify supra, supra fatal and to show perpetrator of the blows suspicious appear- twins and ward attention for his failed to secure medical infer- he justify an injuries, their ance of reweigh us attempt His to have responsible child. appellant indeed ence that per find his version the more upon Jordan. evidence injuries inflicted for Smith, supra, 465 suasive is to no avail. in his was admissible thus Such evidence mo- N.E.2d death to show prosecution for Jerrel's or, under the feder- identity, ap- operandi, support
dus is sufficient evidence formulation, or acci- of mistake absence murder and ne- al pellant's convictions Lannan, supra. dent. dependent. glect of a the evidence maintains erred
Appellant the trial court Appellant contends his con inadequate is insufficient instruction on generally giving jury evi acknowledging the Final While evidence. The Court's victions. circumstantial had been that Jerrel establish direct and cir- dence does No. XIII defined Instruction time, appellant long period gave examples over a beaten cumstantial evidence latter, explain: on to inflict and went that he establish argues it does not they were inflict or that fatal blows ed the is of no less "Circumstantial He to kill the child. the intent ed with evidence, is a than direct value correctly cites Smith law makes no dis- general rule that the of suffi for our standard N.E.2d 1105 and circumstan- direct tinction between only at the evidence look ciency review: we evidence, simply requires that but tial all reason the State and favorable to Defendant, most jury convicting a therefrom; if to be drawn inferences able of the Defendant's must be satisfied the crime of each element the existence from all doubt guilt beyond a reasonable reasonable beyond a be found may therein case." of the evidence disturbed. doubt, will not be the verdict v. including Spears cites cases Appellant conflicting review, weigh neither we On 272 Ind. credibility wit judge the nor 647, 403 272 Ind. grounds, mod. on other nesses. proposition that circum for the upon by relied distinguish the sit stantial attempts to hypothesis every reasonable exclude 445 must Horne uation doubt, beyond a reasonable innocence quoted an ear 976, 978 wherein we cir evidence is all of the that where which stated: lier case cumstantial, an instruc give judgment with reasonable "'Anyone Noting error. reversible constitutes tion the blows that one of know instruc a defective object that failure these numerous any of magnitude of generally one a correct or to tender tion this fatally injured could blows regard, Whittle any error in that waives at the sick child, apparently was who *8 981, appel Ind., (1989), 542 N.E.2d State magni such of such blows time. Where here argues the omission lant nevertheless have a any jury would repeated, tude are to "the error due to fundamental amounted perpetrator that the to conclude right the evi nature of exclusive circumstantial legal infer as a kill. Malice intended to in this cause dence perpetration from a may deduced ence child, and injuries inflicted the who act, presumes the law any cruel of at the individual mind of the of the state of consequences the intends an individual inflicted." injuries were that said time (1968), 250 v. State Corbin his acts." 261, 150, 262." 147, out, 234 appel Ind. points theAs State N.E.2d given must be instruction lant's desired testimony bar, medical the In the case cireum- wholly the evidence only where no acci- injuries were it clear Jerrel's made Ind., (1985), 475 plenty of cireumstan- v. State dent, and there was Cox stantial. 244 however, have motion, it would there was supra filed such a Spears, In
N.E.2d 664.
to
trial court's discretion
been within
fight to
linking the
evidence
no direct
(1990),
Zavesky v.
deny it.
State
grant
admis-
or
appellant's
injuries.
victim's
presumed
1124. It is
sus-
558 N.E.2d
Ind.App.,
when Jerrel
present
he was
that
sion
ob-
ability to remain
as the
have the
judges
as well
injuries,
that
mortal
tained
having
exposed
been
injuries
those
after
testimony that
even
jective
pathologist's
prejudice
intentionally,
might
con-
tend to
inflicted
information
must have been
is estab-
prejudice
to the issues
or
going
No bias
lay persons.
direct
stitute
Cox,
previ-
intent, respectively.
mere fact the defendant
by the
identity and
lished
of
rea
judge.
"no
appeared
here of
has
ously
The absence
supra.
instruc-
(1989), Ind.App., 545
innocence"
of
v.
hypothesis
Stanger
sonable
error.
fundamental
was not
1105.
tion
N.E.2d
his convictions
Appellant contends
Judge
Brubaker
the fact
Neither
con
from
to refrain
ineffective assis
had ordered
due
reversed
must be
recites our
accurately
He
fact
counsel.
tance of
nor
tact with
of effectiveness
review
was used
by
that order
standard
to abide
Washington
v.
counsel, citing
sentence,
Strickland
bias
shows
aggravation
104 S.Ct.
U.S.
judge.
Reynolds
trial
See
part of the
v. State
28.
L.Ed.2d 674
N.E.2d
(1991), Ind.App., 575
Mftari
469.
has
showing,
a
Absent
request
demonstrate
failed to
ineffective
allegation of
first
Appellant's
granted,
have been
judge would
change of
fail to instruct
it was error
is that
ness
prejudiced
Hunter,
or that
supra,
every rea
they
exclude
must
jury that
request, which
so
failure to
by counsel's
order
of innocence
hypothesis
sonable
ineffective
not constitute
assis
thus did
cireumstantial
him on
convict
Young v. State
tance. See
fell below
counsel
maintains
He
alone.
object to
failing both
standard
in the court's
charge
of such
absence
inef
counsel was
asserts
instruc
such an
to tender
instruction
to the fact
object
neglecting
fective
However, every
behalf.
tion on
specify
failed to
murder information
pro
innocence
hypothesis
reasonable
Appel
occurred.
alleged murder
how
or here
at trial
appellant,
pounded
does
however,
authority and
lant,
cites no
undisputed
by the
foreclosed
appeal, was
per
why
was substandard
this
not mention
no
death was
that Jerrel's
medical
there
prejudiced
how he was
nor
formance
above,
court, as decided
trial
accident.
argu
cogent
present
failure to
by. Such
any such
given
need not
therefore
Ap
point.
Ind.
this
error on
ment waives
substand
instruction;
neither
it thus was
8.3(A)(7);
v. Lake
Joseph
pellate Rule
to fail
prejudicial
nor
performance
ard
(1991), Ind.App., 580
Corp.
Ridge School
amount
accordingly did not
tender one
the mer
fails on
He moreover
v.
Hunter
See
assistance.
ineffective
out,
points
claim,
for as the
this
its of
citing Patterson
allegation of
next
Appellant's
here,
where,
probable
failed
counsel
is that
ineffectiveness
the de
sufficiently apprised
cause affidavit
from
venue
change of
request
'to
of death
and manner
the means
fendant
Noting
county.
as from
as well
judge
State,
appellant suffered
alleged
same one who
judge the trial
ineffec
Accordingly, thereby.
prejudice
involving
action
the CHINS
over
presided
shown. Sarwacinski
has been
tiveness
*9
here ad
the court
notes
N.E.2d 950.
(1991), Ind.App., 564
and went
that action
mitted
inef
counsel was
comply
Appellant asserts
rely upon
cross-ex
aggressively
failing to
in
fective
grounds to
"stay-away"
order
with
witnesses, questioning
the State's
counsel
amine
Even had
his sentence.
aggravate
applied by the trial
only "in
The standard to be
eighteen, and then
only nine of
appellate
court when deter-
again, appellant
court and
Here
limited manner."
eviden-
mining
make
there is a sufficient
authority
simply fails to
whether
and
cites
making
give
on one of
point,
tiary
on this
an instruction
cogent argument
basis
any
prej-
in criminal cases
absolutely
showing of how
the defenses available
by
gained
was to be
in
nor of what
was settled Williams
udiced
as was
extensive cross-examination
case,
more
In that
Ind.