*1 meant afford relief 279. The rule is HALL, III, Virgil Appellant-Defendant, that could not have
from cireumstances during period a mo- been discovered filed. tion to correct error could have been 60(B) motion, Indiana, Appellee-Plaintiff. In TR. ruling STATE of
Id. on a injus- alleged trial court must balance the No.27A02-0207-CR-538. moving for relief by party tice suffered against winning party of the the interests Indiana. Appeals Court of finality litiga- interest in the and societal Sept. end, tion. Id. at 278-79. To this TR. 60(D) hearing perti- at which requires presented.
nent evidence is to be
The averments of the Motion to Rein- Objection
state and the averments of the (with accompa-
to Motion to Reinstate an Affidavit)
nying did not obviate neces-
sity hearing, light mandatory of the 60(D).
language of TR. Pursuant to this
rule, court pertinent the trial shall hear neglect of excusable or
evidence the exis-
tence of a meritorious claim. concedes
St. Francis that its difficulties prosecution
in the of its claim were due to attorney's neglect,
its own and St. Francis However,
has retained new counsel. no presented
evidence has been to the trial neglect
court that such was "excusable" as 60(B)(1).
contemplated Although T.R. alleged
St. Francis the existence of a meri- claim,
torious sufficient to withstand sum- 60(B) motion,
mary dismissal of its T.R.
the existence of claim a meritorious has against
not been established. The elaim Hoogier Health was reinstated without re-
quiring satisfy St. Francis to its burden of
proof, affording op- or Health Hoosier
portunity light to be heard. In of the 60(B) (D)
contravention of T.R. re-
quirements, we reverse the order of rein- hearing.
statement and remand for a hearing.
Reversed and remanded for
KIRSCH, J., VAIDIK, J., concur.
I. the trial court abused its Whether discretion when denied Hall's Error; Motion to Correct II. Whether the trial court abused its discretion when it limited Hall's cross-examination of the victim's mother; III. the trial court abused Whether its discretion when it exeluded testi- mony of Hall's medical expert; *4 IV. the trial court abused Whether its discretion when it denied Hall's Mistrial; and, Motion for a V. trial court Whether erred it denied Hall's Mo- when Verified Appointment Spe- tion for the of a cial Prosecutor.
Concluding that Hall has failed to meet his theories, these burden under we affirm. History Facts and Procedural Small, IN, Attorney Indianapolis, Mark In December of Hall married Kelli Appellant. for ("Fetterhoff"), Fetterhoff of mother Carter, Peyton ("Pey- Attorney three-year-old General of Fetterhoff Steve Indiana, Talbot, ton") Prekopa Deputy Monika five-year-old and Hunter Fetterhoff General, IN, Attorney Indianapolis, ("Hunter"). Attor- thereafter, Four months Hall neys Appellee. son, for and Fetterhoff had a Devon Hall
("Devon"). OPINION 25, 2000, morning May Fetter- On the into town to run errands with hoff went MATHIAS, Judge. Devon, stayed Hall home to do lawn while Peyton was convicted of work and watch over and Hunter. ("Hall") Hall III Virgil a.m., murder, Flannigan, Ted felony,1 neglect depen a of a At 11:04 Hall called bodily injury, deputy Township in as a chief of the Mill Fire resulting dent serious felony,2 D in Class Grant Cireuit Court. Department, and asked for assistance be- sixty-five years Peyton swing." p. exe cause "fell off a Tr. 234. Hall was sentenced to arrived, im- Flannigan in for Ted he was Department cuted of Correction When Peyton's years neglect mediately murder and three for of a concerned that situa- bodily inju in tion serious and told Hall to call dependent resulting serious was ry, concurrently. pp. run ambulance. Tr. 244-45. Hall called the sentences to appeals, raising following dispatcher restated an ambulance and informed swing. p. Tr. 168. issues: that his child fell off (1998). § (1998). 1. Ind.Code 35-42-1-1 § Ind.Code 35-46-1-4 subject being to Marion conversations were re- Peyton transported was Gen- eral where he was examined Hospital, corded; however, phone after Hall's con- ("Dr. Yablong"). Hall Jeffrey Yablong recorded, Dr. already jail versations had been Yablong Peyton Dr. fell also advised officials and Luttrell learned that this noti- Yablong Dr. swing. p. off a procedure place fication was not when Peyton had a number of observed that 28-29, Hall was booked. Tr. 34-85. injuries; Peyton was obvious severe consequence As a of the unauthorized commands, lethargic, non-responsive conversations, phone his interception of skull, his amount large had a fracture on civil proceedings against Hall commenced torso, injuries swelling, noticeable to his Luttrell, responsible, including those eyes. and deviated appointment filed a verified motion for the Peyton's injuries, severity Due to special prosecutor. The trial court Hospi- by helicopter Riley he was taken motion, prudently denied Hall's but sup- tal in Indianapolis. condition pressed all evidence obtained as a result of arrived; critical when he he was not mov- Hall's interception phone conversa- pressure high ing and had low blood and a tions. *5 Peyton eventually heart rate. died be- trial, filed a in Before the State motion brain became that cause his so swollen its limine, seeking exclude alleged to testimo- was cut-off. supply blood ny indicating Pey- that Fetterhoff struck ("Dr. Hawley per- Hawley") Dr. Dean in morning ton the head on the of his Peyton's autopsy. Peyton's autop- formed granted death. The trial court this mo- sy revealed that he had suffered at least tion. head, injuries to his one on separate three Jury began February trial on 2001. each on the 664. p. side and one back. Tr. trial, During objected por- to a State autopsy Peyton The also revealed that had testimony by tion of the offered Hall's ligament to a laceration holds his expert, medical Dr. Bernstein Lawson spine, injury head to his cervical a severe ("Dr. Bernstein"). chest, injury to his another to his abdo- The trial court excused jury evidentiary hearing and held an men, yet injury and another severe to his admissibility on the of Dr. tes- Bernstein's p. scrotum. Tr. 356. timony. After the the trial court hearing, charged by On June testimony Dr. held Bernstein's inadmissi- murder, felony. information with a On expertise. ble because of his limited Tr. 29, 2000, the added a ne- December State pp. 1340-44. glect dependent resulting of a serious bodily injury, felony, as a Class B count to trial, expla- At Hall recanted his initial charging Hall's information. injuries. Peyton's nation of Hall testified placed Peyton that he had on a workbench trial, While Hall awaited he was incar- and, using he was his electric while weed County During cerated in the Grant Jail. eater, pulled on the weed eater's extension incarceration, City Police Hall's Gas to a kink in cord unloosen the cord. Tr. Department sought permis- and received pp. pulled 923-26. Hall stated that as he Deputy Prosecutor Jim sion from Chief cord, he struck accidentally Peyton, on the ("Luttrell") Hall's intercept Luttrell him, Luttrell au- phone conversations. When sitting knocking Pey- who was behind bench, causing Peyton ton off the and interception, thorized this he believed that jail dog cage hitting in- hit a before the floor. Tr. practice notifying had the of phone p. 926. Hall claimed the reason he told during booking mates their personnel Peyton with the of the emergency dog cage. doctors and width bars on the he was afraid swing fell off a was because Tr. pp. 1171. The ex- following not a people responsible would feel he was change, concerning this testimony, oc- Tr. pp. if the truth were known. parent during closing curred Luttrell's rebuttal 937-47. argument;: trial, Oh, evi
During produced the State by way, posts State: these from several doctors that indicated dence three-eighths that are an inch wide. Peyton's injuries were inconsistent with ... Hmmm. Well falling swing. those caused from off a Tr. object Hall: Your Honor. ... We'll 292, 337-38, Also, pp. Dr. Tres has already [the] witness testified to ("Dr. Scherer"), a sur pediatric Scherer ... [the] measurements we demand a Peyton Riley Hospi who examined at geon He testify. mistrial. cannot (1) tal, injuries testified that were Court: Overruled. This is not testimo- similar to those caused intentional trau ny; argument. it's final ma, table, a fall then from to another they Don't State: have the same mea- object, and then the floor not be would surements in Canada? Isn't injuries, capable causing Peyton's eighth an inch the same here as it (8) Peyton's injuries were consistent is in Canada? having contemporaneously been inflicted added). pp. (emphasis Tr. 1502-03 morning day on the of the he was treated 340, 343, Riley Hospital. at murder, jury guilty The found Hall ("Dr. felony, neglect dependent Dr. result- Thomas G. Luerssen Luers- *6 sen"), ing bodily in serious as B injury, a Class pediatric neurosurgeon a who also felony. Peyton The trial court sentenced Hall to Riley Hospital, examined at testi may sixty-five years Department fall in the fied that a of five or six feet be of Cor- to child's murder, able fracture a skull but would felony, rection for a and three years capable harming neglect dependent, not be of a child's brain for as a only height- felony, and a fall from an extreme D with the run Class sentences to one to two concurrently. stories-could have caused Peyton of type injury brain received. Tr. 5, 2001, April On a filed motion to 424-25, pp. 435. correct error. An affidavit was attached Hawley, Peyton's Dr. performed who au- alleging jury to this motion misconduct. topsy, injuries Pey- testified that similar to specified during The affidavit that trial ligament ton's laceration of the that holds ("Daniels") juror David Daniels alter told his head to his spine typically cervical oc- juror Gary Hopkins ("Hopkins") nate violently cur when the head is thrown for- stepson Daniels' was incarcerated with chest, Peyton's injuries ward and to his Hall and Hall to innocent. Ap believed be abdomen, and serotum were consistent pellant's Supp. App. pp. 802-08. At a later by punches with those caused or kicks. trial, stage stepson of Daniels' 679, 658, 665, 681. and, changed other inmates opinion their time, guilty. believed Hall to be photogrammetry expert Hall called a to Although opin Id. the inmates' subsequent testify about the width of the bars on the directly ions not communicated to dog cage allegedly were Peyton hit as he Daniels, they relayed were to allegedly falling was from the workbench. Daniels' wife, expert giving This testified that the width of the and Daniels overheard his wife injuries family on another head were consistent this information to member. 394 person munication an unauthorized conveyed this informa
Id. at 319. Daniels
jury during
presumption
prejfu-d
a
of
of
creates
rebuttable
tion to the remainder
24,
App. pp.
(citing
ice."3
395 jury, a matter before the pertained added).5 to All (emphasis of these cases presumption prejudice] arises [of presumption prejudice state the of as black the burden to the shifts State for proceed letter law and then ignore it.6 Then, upon rebuttal. consideration of evidence,
all the
the trial court must be
B. The burden
proving the lack
convinced that a substantial possibility
prejudice should be on the State
existed that the verdict was prejudiced
by
improper
Amendment,
material
a rever-
Under the Sixth
ev
before
and a
granted.
sal
new trial will be
ery defendant must be
the oppor
afforded
tunity to conduct an effective cross-exami
added) (citations omitted).
(emphasis
Id.
nation of the
Kilpatrick
State's witnesses.
any
party
To erase
doubts as to which
State,
52,
v.
746 N.E.2d
59
placed
Butler
the burden of
Butler
proof,
right
This
"extends to situations related to
stated,
may
[the
"while
have
defendant]
presentation
witnesses,
of evidence or
burden,
met his initial
he did not demon
during
right
which the
of cross-examina
possi
strate to the trial court a substantial
implicated."
tion is
Id. When a defendant
bility
jury
improperly
that the
was
influ
is denied
opportunity,
his conviction
added);
(emphasis
enced."
Id. at 1040-41
will be reversed
prove
unless the State can
State,
see also Williams
v.
757 N.E.2d
beyond a reasonable
1048,
doubt that the denial
(Ind.Ct.App.2001),
1060-61
trans. de
did
not contribute to the verdict obtained.
"[mloreover,
(stating,
nied
even if [the de
State,
1107,
v.
718
N.E.2d
1110-
presented
had
fendant]
evidence to shift
Standifer
(Ind.1999)
State,
11
(citing Chapman
California,
burden to the
he
v.
has failed
18, 24,
potential
demonstrate that the
86
misconduct
U.S.
87
17
S.Ct.
3
harm")
(1967)).
gross
probable
or constituted
L.Ed.2d 705
(Ind.Ct.App.
591 N.E.2d
5. Because of the nature of the communica-
cases,
1992)).
tions involved in all of these
we believe
that-unlike
the case at bar-the
outcome of
Bockting's holding
juror
concerned
consul
regard-
these cases would have been the same
dictionary-a
tation of a medical
form of mis
proof.
less of the burden of
long recog
conduct that Indiana courts have
require
prove
nized does not
the State to
significant
6. We find it
that the "evolution" of
the defendant was not harmed
such a
presumption
prejudice appears
Currin's
579;
Bockting,
consultation.
591 N.E.2d at
Currin,
have been inadvertent.
497 N.E.2d at
Clinic,
Kistner,
see also South Bend
Inc. v.
1046, states,
(Ind.Ct.App.2002);
N.E.2d
592-93
presumption
preju-
While a rebuttable
(Ind.
Shultz
jury
involving
dice arises from
misconduct
Ct.App.1981).
out-of-court communications with unautho-
*8
Butler,
Beginning with
case law-
current
people
rized
... such misconduct must be
explicitly overruling
without
Currin-has dis
proof, by preponderance
based on
of the
pensed
evidence,
requirement
with Currin's
that the ex
extra-judicial
that an
contact or
occurred,
"pertain
trinsic communication
to a matter
per-
communication
and that it
pending
pending
jury.
jury,"
require
the
tained to a maiter
before
added the
the
before
added).
ment that ""thedefendant show that the mis
(emphasis
Butler-citing
Id.
Currin-
added,
proposition,
restated this
but
then
gross
probably
conduct was
harmed the
evidence,
"upon
consideration of all of the
the
defendant,"
and,
doing,
in
has
so
inadvertent
trial court must be convinced that a substan
ly negated
presumption
prejudice.
Currin's
possibility
tial
existed that
the verdict was
901;
Griffin,
Stephenson
See
754 N.E.2d at
v.
prejudiced by
improper
material before a
State,
(Ind.2001);
742 N.E.2d
477-78
granted," effectively
new
be
shifting
trial will
Williams,
May
the extrinsic information-Indiana law prove that he or quires asserts, agree, Hall and we defendant prejudiced by the evidence. she has been prov- the determination of State converts sufficiency ing prejudice into a test and respectfully all these reasons For we supported by a conversion is not such assert that the State should bear the bur Appellant Br. of at 5- Reply Indiana law. preju that Hall not proving den of Little, any, guidance provided if is on by the extrinsic communications.7 diced cases; by jury how- this issue misconduct However, mandatory precedent because ever, analysis find error in- we harmless clearly places proving preju the burden of structive. defendant, require dice on the we Hall to prejudiced by the miscon
prove he was Ground v. State notes: duct. may It seem anomalous that we are reversing convictions [the defendant's] to meet his burden
C. failed analysis harmless error but based on proving prejudice time, concluding, at the same 1. Extrinsic reached information remaining sup- evidence is sufficient to jury dwring deliberations port her convictions. Based on the suf- misconduct, evidence, argue one could evaluating jury ficiency of the When juror extent we consider affidavits to the prejudiced was not [the defendant] improperly tainted admitted evidence. they assert the deliberations were court, they grant preme below, should transfer to 7. As will be discussed the burden Nonetheless, we proof absolutely pivotal in case. If we resolve this issue. believe *9 place proof be far better for all concerned that were to the burden of on the would State, junc- properly belongs, Hall's conviction be vacated at such a where we believe it subsequent memo- prevail be enti- ture than at a one-when Hall would on this issue and lightly ries will have faded and survivors tled to a new trial. We neither take unpleasant with the task of impact would have would be faced that such decision significant revisiting having a involving his loss after on a case the murder of a three- envy amount of time to heal. year-old nor do we the task of our su-
397
However, the test for
715,
harmless error
N.E.2d
717-18
The ap
serves a different function than the test
plication of such a sufficiency-affirming
for sufficiency of the evidence. The
standard would not necessarily be reliable
harmless error test seeks to determine
for the purpose of determining actual
probable
impact of the error on the
prejudice because reasonable people have
jury, and its effect on
rights
of the
been known to disagree about such mat
party.
sufficiency
The
of the evidence
ters-as
is evidenced by dissenting opin
'
test seeks to determine if substantial
ions.
probative
evidence of
value exists from
which a reasonable trier of fact could
that may be considered
Information
guilt beyond
find
a reasonable doubt.
in determining prejudice
702 N.E.2d
4
733 n.
(Ind.App.1998);
State,
see also Saperito
v.
490 N.E.2d
When determining whether an ex
(Ind.1986)
("of course,
trinsic communication
prejudiced
has
the test
for
harmless error is not
defendant,
whether the evidence
we
juror
consider
affidavits
was sufficient without the offending testi
only to the
they
extent
assert the delibera
mony, but whether the testimony might
tions were
tainted
improper information
have had a substantial effect on the ver
precluded
are
from considering any
dict");
State,
v.
664 N.E.2d
information,
Griffin
contained
juror
within the
af
("while
377 (Ind.Ct.App.1996)
may
there
fidavits, indicating how the extrinsic infor
exist substantial evidence of [the defen mation
jury's
affected the
decision-making
guilt,
dant's]
we determine that the exelud-
process. Hall,
The test for harmless error is dict and make an independent determina not whether there was substantial evi tion of likely effect of the communica dence of the guilt defendant's but wheth tions. Appellant's App. p. 37.
er the error contributed to the verdict.8 adopt We approach for jury miscon 4. Review the evidence and duct cases involving extrinsic communica application the current (1) tions because: like harmless error standard. analysis, jury misconduct review seeks to protect the defendant's rights (impartial stated, "[in most instances it jury confrontation), not difficult, determine if not impossible, to assess the impact of extraneous information of influ the sufficiency evidence, sufficiency cases affirm verdicts unless no ences without somehow gaining insight reasonable fact-finder could find the ele into the juror's individual reaction to the ments of proven the crime beyond a rea information or outside influence." sonable 766 N.E.2d at 692 n. 2. doubt. Tyson independent Substantial may evidence be everything tion to jury else the considered on used to demonstrate that an error did not question. the issue in pervading Id. An error contribute to the verdict. Meadows v. every aspect of deliberations cannot be said to (Ind.Ct.App.2003), unimportant have been every- in relation to trans. denied. To determine whether the er- thing jury else the considered on the issue in verdict, ror contributed to the we determine question. whether the unimportant error was in rela- *10 398 by predicted, even perhaps or suggested, at is information extraneous the
When of cumulative, Hall, court at 692 n. the dearth strikes the N.E.2d 760 merely sue is inability to consequent and our evidence likely as inherently unreliable being as so jury's into the motivations insight an gain or does not jury, by the rejected to be determining whether in at a loss leaves us case, court of the issue a central concern in- extraneous considered the jury Hall's with confidence may be able to assert is no evidence Because there formation. the prejudiced not was the defendant determination, this to make in the record here, when, However, the as information. Hall, proof the burden of party the as concerns a central information extraneous law, necessarily los- Indiana under current guilt-or actual of the case-Hall's issue es. every pervade expected to can be fairly deliberations, Hall's jury's the II Hall's Cross-examination
aspect of the rule Because of of Fetterhoff irrefutable. analysis is juror testimo of consideration precluding is of evidence The admission the extraneous impact of the ny regarding trial of the discretion the sound within verdict, reviewing on information court, evidence will a decision to admit and of with a dearth are confronted courts showing of an absent a not be reversed are, ill consequently, evidence in the resulting of that discretion abuse jurors con whether to determine equipped a fair trial. Simmons denial of properly to admit deliberations fined their (Ind.Ct.App.2002). 1158 N.E.2d the extraneous or allowed evidence ted is relevant evidence Generally speaking, For verdict. to affect their information inad evidence is and irrelevant admissible reason, placement burden this N.E.2d Majors v. missible. everything.9 is proof is evi Relevant evidence tendency to make having any dence bar, infor- at the extraneous In the case to consequence that is of of a fact existence fellow inmates' Hall's concerned mation more or less of an action the determination The guilt. innocence and of his opinions the evi be without than would probable lived with Hall the inmates fact that N.E.2d at 368. Majors, 748 dence. innocent, but he was once believed guilt, alleged renders evidence sought belief to admit changed their Hall special morning had a on the striking Peyton that the inmates impression Fetterhoff gained establishing an a means of guilt-seemingly Hall's his death as insight into Appellant Br. of contact with cause of death. frequent of their alternate as a result However, testimony dem had he medical ability to see when at 18. Hall and such, in injuries were jury. for a As onstrated composed himself not contemporaneously. to consider flicted jury allowed themselves if the blow, such, alleged sepa single As information, doubt can be little there this injuries, Peyton's other im- in time from rated prejudicial had a information that the Pey- caused However, extremely unlikely to have as the verdict obtained. on pact jury, majority of the and failed reached correctly the trial court's asserts that 9. Hall at jurors, or- is- the extraneous communication pre-deliberation refer to instruction disregard any all infor- dering sufficient to cure them "to instruction were If this sue. [they] may derived from have mation that impact, all of the above-cited prejudicial source," consequence no should be of unnecessary, outside as been case law would have p. App. Appellant's this determination. make given would regularly instruction prompt, was not "curative instruction" This unnecessary. analysis prejudice all given the extrinsic information before
399 Furthermore, ton's death. Hall himself A. Dr. Bernstein's testimony was im- Peyton maintains that injuries received his property excluded while he alone Peyton. Tr. The trial rejected court Dr. Bern Thus, 926-28. even if it were unrefuted testimony stein's concerning his theory of that Fetterhoff struck Peyton on the Peyton's death, cause of because Dr. death, morning of his her alleged blow (1) Bernstein did not Peyton's see compu almost certainly was not the Pey cause of ("CT terized tomography (2) sean scan"), and, thus, ton's death is irrelevant to the neither attended nor Peyton's saw autop determination of this case.10 The trial (3) sy, court was therefore well within its discre does not himself, conduct autopsies (4) tion consider, when it held failed to evidence of Fetterhoff or at least ade allegedly striking Peyton quately explain, why inadmissible.11 other factors were not the cause of death. p. III. The Exclusion of Dr. Bernstein's 1348. Testimony Indiana Evidence Rule 702 The State concedes that reviewing the provides may that a witness qualified be as radiology report sean, of the CT as Dr. an expert by virtue of the witness' "knowl did, Bernstein helpful more physi- to a skill, edge, experience, training, or edu cian than reviewing the CT sean itself and State, cation." Kubsch v. 905, 784 N.E.2d that an expert witness need not attend an (Ind.2003). 921 Only one of the above autopsy to form an opinion as to the cause necessary characteristics is qualify an of person's death. Br. of Appellee at 16. individual as an expert. Id. Expert scien However, the State asserts that the fact (1) tific testimony is admissible if it satis Dr. Bernstein did not Peyton see and does standard, (2) fies the above the scientific not do autopsies opinion renders his specu-
principles upon which
expert
testimony
lative. Id.
reliable,
rests are
the testimony's
The State cites Ind. Mich. Power
probative value
Co. v.
is not substantially out
Runge,
216,
717
weighed
N.E.2d
by the
237
danger
(Ind.Ct.App.
of unfair prejudice.
1999), in
State,
support of
Haycraft
position.
v.
its
203,
760
Br. of
N.E.2d
210
Appellee at
Runge's
exclusion was
(Ind.Ct.App.2002),
trans. denied (quoting
State,
(Ind.
Smith v.
702
based on the
N.E.2d
"bald"
672
assertions of a witness
1998)).
concerning
effect of "electromagnetic
It is within
the trial
court's sound
discretion to decide
person
whether a
fields" on
qual-
the human body. 717 N.E.2d at
ifiese as an expert
witness. Corbett v.
237. Dr. Bernstein's offered testimo
State,
764 N.E.2d
ny did not consist of "bald" assertions and
relevant;
Saylor
10. Hall cites
testimony
infirmities in
always
are
559 N.E.2d
denied,
(Ind.Ct.App.1990),
exploration
trans.
theory expounding
and Hen
impos
dricks v.
(Ind.Ct.App.1990),
sible cause of
contradicting
death and
part,
(Ind.
562 N.E.2d725
aff
'd
theory
defendant's own
of the case is not.
1990),
standing
as
proposition
for the
that he
right
had a
to the unencumbered cross-exami
11. Even if Hall had shown the exclusion of
nation of
Appellant
Fetterhoff. Br. of
at 17-
alleged
improper,
evidence to be
the ex-
Saylor,
right
In
to cross-examination
clusion would have been harmless. One
upon
was based
"infirmities in the witness'
testimony
would think
alluding
Pey-
testimony." Saylor,
concerned electromagnetic of the effect lative than or exclu in the admission Errors body. the fields on as disregarded are to be of evidence sion practice that his Bernstein testified Dr. they affect the substantial unless harmless of records reviewing the regularly 61; involved Trial Rule Ind. party. rights patients trauma general and neurological (Ind. 123, State, 131 611 N.E.2d v. Hardin this for he examined to the records similar State, 656 1993); Fleener v. see also 1273, v. As Birdsell pp. case. (Ind.1995). 1140, Consid 1141-42 N.E.2d Tr. stated, increased "with the case, States United in the we all the evidence ering of medicine, physician the in modern division tes Dr. Bernstein's limiting find the error rely necessarily must diagnosis the making not to have sufficiently minor so as timony performed and tests many on observations Pey- rights. Hall's substantial affected diagnosis others; for sufficient by records pathologist and the treating physician ton's opinion for enough hospital ought be in a both tes Peyton's autopsy performed who F.2d 346 in the courtroom." testimony multi a result of died as Peyton tified that (5th Cir.1965); Ealy v. also see 779-80 the light In trauma. blunt force ple (Ind.1997) State, 1056 N.E.2d 685 testimony physicians of the concurring an ("Iwle it for proper long have held his au Peyton performed and who treated upon an based give opinion expert to jury the would unlikely that is topsy, another"). by prepared autopsy report a differ died from Peyton that have found who physician, qualified fact that a The 348-51, For 683-89. ent cause. on the relied autopsies, not conduct does the error reason, that we conclude this by reports prepared radiology autopsy Pey- theory Dr. Bernstein's excluding victim the inspecting than others rather Hall's not interfere death did ton's in the importance of no himself should be rights. substantial offered testi the to exclude determination trial for the As mony of Dr. Bernstein. Misconduct IV. Prosecutorial Dr. Bernstein's that court's determination reme is an extreme A mistrial why adequately explain testimony does not is no other "only when there dy granted death, not the cause factors were other rectify a situation." Ol can method which testi Dr. Bernstein's very purpose the (Ind. 585 N.E.2d iver the cause of that mony was to illustrate 2001). lies within of a mistrial denial The incorrect by the State death theorized v.Gill sound discretion. trial court's the represented theory, allegedly, his because The actual of death. cause gauge position in the best judge trial circumstances, facts and these Under po surrounding cireumstances trial by the proffered although the factors deciding when jury impact on tential discredit ground a valid for may court be Id. appropriate. a mistrial is whether testimony on cross- Dr. Bernstein's ing prose- a claim of reviewing When Dr. examination, to exclude using them (1) misconduct, we determine to an amounted testimony cutorial Bernstein's engaged miscon- prosecutor of discretion.12 abuse whether would have trial court question whether trial with the sympathize We concur and placed ruling it not been had the same made indicating the State's statement court's open- State's time constraints pre- under raised in objection have been should p. 1261. objection. Tr. motion, court Rule 104 trial Indiana Evidence (2) duet, and, so, if whether the miscon Luttrell not made comment, a reason- duct, cireumstances, under juror all of the able placed would nonetheless either re- ject Hall's claim Peyton the defendant in a position of hit grave peril dog cage as the result of an to which accidental fall he or she would or not have been *13 (2) conclude that Peyton's injuries were subjected. Booher v. the result of Hall intentionally driving The gravity of the Peyton's head dog into the cage. peril by is probable measured the persua sive effect of the Peyton misconduct on jury's the suffered at least six separate injuries. decision rather than degree the of impro theory, Hall's even if it priety of the were not completely conduct. Id. contradicted by evidence, the only accounts for three of During closing arguments, the fol injuries-one six injury resulting lowing exchange occurred: from having been knocked off the work- Oh, by State: way, and posts these bench, one injury resulting from hitting that three-eighths are an inch wide. dog cage fall, during his and the final Hmmm. ...Well injury hitting from the floor. Hall's theo- Hall: Your object Honor. We'll ... ry's failure to adequately Pey- account for ton's other injuries would
[the] witness has already testified any cause ration- juror al reject theory his regardless of [the] measurements ... we demand a mistrial. He Luttrell's testify. cannot comments. The trial court did not abuse its discretion when it denied Court: Overruled. This is not testimo- Hall's Motion for a Mistrial. ny; argument. it's final V. Hall's Motion for a State: they Don't have the same mea- Special Prosecutor surements in Canada? Isn't eighth an inch the same here as it Indiana Code section 38-14-1-6 states: is in Canada? (b) A cireuit or superior court judge: (2) may appoint a added). special Tr. pp. prosecutor (emphasis 1502-03 It altogether is not if. clear what Luttrell (A) person a files verified motion
was referring to when he mentioned "an requesting appointment of a eighth inch," of an and is difficult to special prosecutor; and make such a determination without the aid (B) court, after: However, visual record. if Luttrell (1) were that asserting the dog cage given bars notice is to the prosecuting were not three-eighths wide, attorney; of an and inch as by testified to expert witness, Hall's (ii) an evidentiary hearing is con- that the bars were an eighth of an inch ducted at which the prosecuting at- wide solely based on the measurement that torney given an opportunity to be he conducted during heard; his closing rebuttal argument, such an assertion would amount finds clear convincing evidence and, thus,
to testimony was improper. that the appointment is necessary to avoid an actual conflict of interest or Hall asserts that Luttrell's comment was there is probable cause to believe that prejudicial himto because it undermined prosecutor has committed a crime. his theory Peyton accidentally was (1996). § Ind.Code 33-14-1-6 knocked off and, the workbench during his fall, hit a dog cage before hitting the floor. Hall asserts ap Luttrell's Appellant Br. of However, at 25. proval even had jail's request intercept his in err court did not the trial tionally," and Indiana Code violated conversations phone Hall's claim. rejecting 35-83.5-5-5(c) see- and 18 U.S.C. section 35-83.5- section Indiana Code tion clear, notes, is not "[ilt Finally, the State (1) who, by virtue 5-5(c) states, person "[a] on indeed, elaborate does not [Hall] ca- or official employment person's against cause of action why possible his system, justice criminal in the pacity a con- cause office would prosecutor's or dis- intentionally uses knowingly or Appellee at Br. of interest here." flict of (8) in interception of an the contents closes absolutely provides agree. 19. We unlawful commits article violation of position. of this support argument no interception, of an use or disclosure and con- such, Hall's claim reject As we *14 § 85-88.5-5- felony." Ind.Code Class C not err when trial court did that the clude added). Hall has 5(c) Though (emphasis Prose- Special for a Hall's Motion it denied "offi- demonstrating the met his burden cutor. justice sys- criminal in the capacity cial ele- interception" Conclusion and "use tem" to a section of ments, direct us fails to he in all to meet his burden Hall failed has intentionally vi- that was Article 35-33.5-5 Accordingly, raised. he has of the issues at 27- Appellant Br. of by Luttrell. olated affirm.13 we Thus, has failed to establish 35- Code section Indiana Luttrell violated MAY, J., concurs. 83.5-5-5(c). provides section 18 U.98.C. KIRSCH, J., in result concurs to any person for of federal law a violation opinion. to inter- intercept, endeavor
intentionally KEIRSCH, concurring in result. Judge, to inter- any person other procure cept, or wire, any intercept, endeavor to cept or decision of in the fully I concur oral, communication. electronic or except for to all issues majority as added). (emphasis § 2511 U.S.C. ex- medical of the defendant's exclusion that it provides also section 18 U.S.C. was within the trial court I believe pert. intercept a communica- to is not unlawful tes- proffered to exclude its discretion the com- parties one of tion where failed to defendant timony and that consent for given prior has munication by fail- exclusion any error its preserve 2511(2)(c) § interception. 18 U.S.C. such Therefore, prove. make an offer ing to (2000). ma- by the reached in the result I concur intercep- authorized Luttrell When jority. conversations, he did phone Hall's tion of exemplary job of did an trial court The jail was that the understanding so with of exclu difficult issue wrestling with the phone conver- that their notifying inmates testimony which was of scientific sion subject interception. sations were transeript The in the midst of trial. raised Thus, 34-85, au- 28-29, Luttrell's p. re legal court's extensive reflects a belief premised upon was thorization it to which caused analysis search under 18 a defense as consent-provided testimony did proffered that the conclude 2511(2)(c). mis- Luttrell's section U.S.C. relia for scientific the standards not meet U.S.C. satisfy 18 does not taken belief 702(b). I "inten- Evid. Rule mens rea of forth in Ind. requisite bility set 2511's section hereby argument is for oral denied. 13. Hall's motion
believe the trial court acting within its
sound discretionin doingso.14 *15 majority
14. The finds the exclusion of the have, The excluded testimony would insofar scientific evidence to be harmless error. determine, as I put can evidence of an alter- agree error, Were I to that the exclusion was I native cause of death jury. before the Can would have serious reservations as to whether excluding scientifically reliable evidence of an beyond exclusion was harmless a reason- alternative cause of death in a murder trial be able doubt. If the exclusion of the evidence error that is beyond harmless a reasonable error, proffered then the evidence was doubt? upon based scientifically principles. reliable