*1
Here,
Comparative
jury's
utory
reflects that it con
scheme of the
Fault
award
requires
only those elements which were
Act
that several verdict
forms
sidered
given
jury.
as an
properly proved at trial and that
those ele
be
to
We view this
attempt by
legislature
prescribe
a
compensation.
Beall's
supported
ments
procedure by
jury might
which the
be
totality,
in its
there is suffi-
When viewed
through
guided
process
of determin-
support
jury's
award
cient evidence
ing
assessing damages,
fault and
and we
Although
damages.
a different trier of
discourage
do not intend to
the use of
reached a
might
fact
well have
different
assisting
jury
prop-
these forms in
by weighing
judg-
the evidence and
result
erly
damages
determine fault and award
ing
credibility
of the witnesses
a
Compar-
in controversies
tried under the
light,
may not do
different
we
so.
However,
ative Fault Act.
we will not
judgment
The
trial court
is af-
special
consider such verdict forms to be
firmed.
interrogatories.
verdicts or
We hold that
prescribed by
such forms as are
the Act
MILLER, J., concurs.
general
will be treated as
verdicts and
may
impeach
general
not be used to
SHIELDS, J.,
separate
concurs and files
Snyder
verdict returned here in favor of
opinion.
against
the State.
SHIELDS, Judge, concurring.
Id.
However, I
fully
I
concur.
must add a
policy,
This statement of
followed to its
special
of caution to the discussion of
word
logical conclusion, suggests
any
de-
findings
interrogatories
upon
based
provided by jury
process
tails
by
as to the
(1992), Ind.App.,
Broshears v. State
general
which it arrived at
its
verdict
reh'g
&
denied
clarified
purpose.
served
that limited
Notwithstanding
in view of our court's decision in Through Highway Dep't. Snyder
State v. 783, question whether special interrogatories, verdicts and/or
expressly encouraged Broshears, tacitly encouraged case, perform SHIPLEY, Appellant-Defendant, in this can opinions the function these Sny envision. v. der involved claim of inconsistent ver Indiana, Appellee-Plaintiff. STATE of negligence against dicts in a action an indi defendant, pursuant Compara vidual to the No. 45A03-9202-CR-40. (Act), against tive Fault Act Indiana, Appeals Court of pursuant of Indiana to the common law. Third District. argued statutorily required language of the verdict forms used under Aug. 1993. special the Act should be treated as "a Rehearing Denied Oct. 1993. verdict or interrogatory compared to be general by returned verdict against claim the State." at [the] response, majority em- the court phasized that
[s]pecial interrogatories verdicts by
were eliminated Indiana Trial Rule 49.
Thus the verdict ... cannot be consid- special
ered us as a verdict or inter-
rogatory. acknowledge We that the stat- *3 Thiros,
Nick J.
Thiros,
Cohen
P.C.,
Merrillville,
Vaiana,
Frederick
Ober,
Shipleys had
past,
In the
both
Zahn,
Cardwell,
Indian-
Voyles &
Symmes,
hands, a hair
their
the victim with
spanked
appellant-defendant.
apolis, for
had also
brush,
The victim
and a belt.
Gen.,
Carter,
Louis E.
Atty.
Pamela
dishwashing soap;
forced to swallow
been
Gen., Indianapolis,
Ransdell,
Atty.
Deputy
Ensure,
dietary
liquid
supplement,
drink
appellee-plaintiff.
for
laced
pepper; and eat cereal
laced
Shipleys explained that
HOFFMAN,
pepper.
Judge.
inappro-
pepper
punishment
Shipley ap
Appellant-defendant
autopsies
eating. One of
priate
for murder
peals her conviction
lungs,
vegetable cells her
revealed
victim
felony.
B
dependant, a Class
had
the fact that
victim
consistent with
disclose
appeal
this
relevant to
The facts
*4
of-
The
was also
pepper.
fed
victim
been
11:00
just before
on November
that
punishment
as a
locked in a bathroom
ten
Technicians
A.M.,
Medical
Emergency
inap-
Shipleys contended were
for what the
summoned
(EMTs)
paramedics were
lapses in toi-
eating
propriate
behavior
Point, Indiana.
in Crown
Shipleys' home
the
training.
let
the
personnel reached
medical
When the
Ship-
Amy
scene,
five-year-old
they found
9, 1990,
charged
November
On
The
victim,
arrest.
in full cardiac
ley,
murder,
the
felony, and
Shipley
a
Gloria
heart
breathing nor was her
not
was
victim
felony.
B
dependant,
a Class
eyes
fixed
Additionally, her
were
beating.
Shipley
jury found Gloria
Subsequently, a
the
neglect of a
indicating
death and
murder and
brain
guilty of both
and dilated
exposed had
eyes that was
portion of her
fifty
sentenced to
dependant. She was
indicated that the
These factors
dried out.
years
fifteen
first count and
years on the
Upon
time.
for some
had
dead
victim
been
count,
im-
the sentences of
the second
on
scene,
Ship-
Gloria
EMTs' arrival at the
consecutively. Gloria
run
prisonment
nurse,
Gary Vaughn that
appeals.
EMT
Shipley now
ley, a
told
victim, her
doing CPR on
she had been
issues for re-
Shipley raises six
Gloria
however,
not
the victim was
stepdaughter;
restated,
the issues are:
As
view.
and the
position to do so
proper
in the
in fail-
(1)
trial court erred
it
made
whether
in
mouth would have
vomitus
her
Shipley's motion for a
grant
ing to
ef-
resuscitation
impossible.
Immediate
to conduct
or in the alternative
mistrial
trans-
begun, and the victim was
forts were
jury
was
Lindsey voir dire when
died.
hospital where she
ported to the
suppressed evidence
briefly exposed to
treat-
personnel who
Many of the medical
process;
during its deliberation
examined her
victim and those who
ed the
in not
(2)
court erred
that
it was
the trial
body
her death noted
whether
after
allegation
into an
stages
inquiring
at various
further
covered with bruises
verdict;
the vic-
healing. They also indicated
a coerced
malnutrition,
emaciated, indicating
tim was
in the
(3)
a break
there was
whether
There was
dehydrated.
and that she was
samples
chain-of-custody of the blood
Gary
Shipley or
no indication
Gloria
victim, Amy Shipley;
doctor,
attention
sought medical
Shipley, a
(4)
sufficient evidence
there was
whether
autopsies
per-
were
for the victim. Two
con-
Shipley's murder
sustain Gloria
body. The results of both
on the
formed
vietion;
died of the combina-
were that the victim
jeopardy
double
(5)
there was a
whether
trauma,
evidenced
of blunt
force
tion
imposed
the trial court
when
violation
bruising;
significant dehy-
the extensive
for murder and
consecutive
sentences
dration;
The actual
and malnutrition.
dependant; and
neglect of a
aspiration.
death was
mechanism of
is now moot.
Gary
Shipley
on his behalf
Appellant-codefendant
Dean
died
Hence, any appeal
instituted
in June of 1992.
Here,
(6)
the trial court committed re-
the unredacted exhibit which
whether
inadvertently
jury
allowed to enter the
was
allowing
the State to
error
versible
prejudicial
Shipley
room
not
to Gloria
Shipleys concerning
question the
Glo-
grave peril.
preference
place
and did not
her in
Shipley's sexual
ria
Gary Shipley's medical license restric-
improper portions of the
made no
exhibit
Gloria;
rather,
questions
reference to
tion.
Gary Ship-
concerned
the codefendant
Shipley contends that
the trial
Gloria
Moreover,
ley.
evidence was
fact
her
for mis-
denying
court erred in
motion
exculpatory
incriminating,
Gary
and not
as
suppressed information entered
trial after
Shipley
questions in
answered both
jury
jury
During
room.
delibera-
(Gloria
negative.
has failed to demonstrate
process,
tion
the trial court discovered that
Thus,
prejudiced.
how she has been
partially
portion
unredacted
of codefend-
trial court did not
its
abuse
discretion
Gary Shipley's voluntary statement
ant
denying Gloria's
motion
mistrial.
police
inadvertently
taken into
had been
along
various other
room
argues
further
photographs.
Upon making
exhibits and
the trial court should have
followed
judge
discovery,
the trial court
ordered
procedures
in Lindsey
erected
the bailiff to retrieve all
exhibits and
*5
351,
819,
260 Ind.
documents, except
photographs,
for the
jurors
voir dired the
to determine what
jury
from the
room. At the time the over-
effect,
any,
if
the inadmissible evidence had
discovered,
sight
jury
the
had been
was
jury
the
In Lindsey,
on
deliberations.
the
deliberating for less than one-half hour.
charged
burglary.
defendant was
offending questions
The two
were:
trial,
During
newspaper publish
the
local
ed articles which contained discussions of
"Q.
you [Gary Shipley]
Did
ever cause
past
the defendant's trial and his
encoun
any
Amy?
sexual harm to
ters with the law which
not
were
accurate.
A. No.
The articles also stated that the vietim had
Q.
you
any type
drugs
Have
of
abused
raped
been
and that
the defendant
had
couple
years?
within the last
been involved in a
situation
similar
on a
previous
354-356,
No,
occasion.
Id. at
A.
295
haven't."
supreme
N.E.2d at 821-822. Our
court
page
The
containing
of the exhibit
the
determined that the trial court should have
questions
removed, corrected,
was
re-
interrogated
jury
expo
to determine its
placed. Gary Shipley moved for a mistrial
material,
sure to
prejudicial
and those
joined,
in which Gloria
based on the inad-
jurors acknowledging exposure should then
vertent
offending ques-
admission of the
examined individually
be
to determine the
tions. The trial
joint
court denied the
mo-
exposure
extent of the
and the likelihood of
tion.
prejudice.
358-59,
Id. at
tests showed by the introduction of cireumstantial evi- drug dence. tion Darvon. id.; See Secondly, that Gloria contends there was see also Hill v. Ind.App., State samples as to the date the blood confusion 535 (knowing neglect N.E.2d Indianapolis. were delivered Huber tes- child).
tified that he delivered the blood to Retz in It is well settled presumed that one is Indianapolis on November 1990. Like- wise, personally Retz testified that he re- have intended the reasonable results of his own acts. Johansen bag containing ceived the sealed the sam- Further, the dura ples on November 1990. Retz ex- tion, brutality, plained regard strength that with to the blood sam- and relative of the defendant and the victim are factors that ples the November 12 dates re- J, can be copy flected on exhibit of the toxicolo- considered as evidence of the defendant's gy department's report, intent to kill. lab were an error. Further, explained any he confusion case, In this testimony of the two multiple was a result of submissions on pathologist performed who autopsies on days different samples of various involved body indicated that the victim had died investigation. with the trauma, combination of blunt force significant dehydration and malnutrition. Finally, appear- Gloria asserts five-year-old victim had extensive ance of an unaccounted for tube of blood bruising body including on her her head. accompanied which body the victim's to the The bruises were ages. of various Dr. autopsy, second renders the other blood Clark bruising testified that was not samples suspect. points out, theAs consistent Shipleys' with the claim that the sample accompanied the blood the vic- victim flight had fallen down a of stairs. body tim's was never introduced into evi- personnel Various medical testified that the Thus, dence. its existence has no rele- victim was emaciated. The victim also had vance to the admission of the lab results several dehydration, indications of includ involving samples the blood for which a ing skin, the loss of elasticity of her sunken proper chain-of-custody was established. eyes, lips. and dried correctly The trial court determined that provided Shipley, sister, sufficient chain-of- Danielle the victim's older *7 custody. previously placed had protective been custody time, for period of stemming Gloria also contends that evidence was allegations from Danielle's by abuse insufficient to sustain her conviction of Gary Shipley. Gloria and Danielle testified murder. More specifically, she asserts that Gary both Gloria and Shipley often the State failed to specific establish her spanked victim, Amy, locked her in the intent to commit murder. periods time, bathroom for extended and reviewing When the sufficiency required her liquid dietary to drink a sup- plement evidence, laced of the pepper. Forbes, this Court James will neither re weigh the evidence nor determine the eredi- supervisor of the Indiana State Police bility If, upon of witnesses. Drug Analysis review we Department, tested the vice- find there to have been substantial evi upon tim's blanket which she had vomited dence probative value to establish every and the victim's fecal matter from the bath- material element of an beyond offense positive tub. Both tested pepper. for Dr. doubt, Stephen Cole testified reasonable we not long as to the will disturb the term trial court's verdict. Clemens v. State pepper ingestion effect of as a form of (1993), Ind., child abuse. He stated that it would cause 610 N.E.2d 243. We con sider the evidence most favorable to the victim to become malnourished and de- State, along with all reasonable hydrated, infer due to diarrhea and vomiting ences to derived therefrom. Id. The State by caused the irritation of the diges- child's may demonstrate knowledge defendant's tive tract. Dr. Cole noted a person dehydra- suffering from "COUNT malnutrition susceptible more tion would be even MURDER pepper asphyxiation by and to these effects DECANTER, upon says THOMAS oath passages. Finally, the air Dr. induced into that BETWEEN SEPTEMBER autopsy noted that results were Cole 8, 1990, AND NOVEMBER in the Coun- pepper ingestion. consistent with excessive Lake, Indiana, ty of State of GARY death, Prior to her the victim suffered DEAN ANNE SHIPLEY GLORIA diarrhea, vomiting, and had from bruises SHIPLEY, knowingly intentionally did or covering body. Shipley her Gloria is a SHIPLEY, contrary kill AMY RENEE nurse, although training her cannot be against peace I.C. 35-42-2-1 [sic] higher used to her to a standard of hold dignity of the State of Indiana. conduct, from this fact combined with the II COUNT trial, it other evidence introduced at (B) A DEPENDANT NEGLECT OF province to draw well within DECANTER, upon says THOMAS oath "knowing- Shipley an inference that Gloria 15, 1990, that BETWEEN SEPTEMBER intentionally"
ly or killed the victim. The 8, 1990, AND in the NOVEMBER Coun- jury's clearly supported by suffi- verdict is Lake, ty Indiana, State of GARY cient evidence. DEAN SHIPLEY and GLORIA ANNE argues Gloria next that her sentences for SHIPLEY, having depen- the care of a neglect dependant murder and of a both dant, placed AMY RENEE SHIPLEY jeopardy. specifical- violated double More AMY RENEE SHIPLEY a situation ly, she contends that the same acts which may endangered which her life have or support dependant charge bodily health resulted in serious which also formed the for the murder bases SHIPLEY, injury to AMY RENEE con- charge. The State counters that there was trary against to 1.0. 85-46-1-4 and jeopardy no violation of dif- double because peace dignity the State of ferent elements underlie the two offenses. Indiana." Two offenses are the same for and sentenced Gloria was convicted purpose jeopardy of double when the Here, like in on both counts. Hall v. State same act constitutes a violation of two dis- (1986), Ind., charges 493 N.E.2d both provisions statutory tinet which do not re occurring are on the same acts over based quire proof of an additional fact. period. at 435-436. Un the same time Wethington case, Shipley's der the facts of this 496, 506; Hall v. State cannot stand convictions both offenses Ind., the instrument because one offense was which the other was committed. Indiana, however, jeopardy double anal ysis does not end with an examination of *8 trial, At the evidence the showed provisions. the The factual bas statutory acts which caused the death were victim's alleged by es the State in the information malnutrition, dehydra- combination Hall, must also be examined.2 N.E.2d 493 tion, period trauma over a and blunt force at 435. time; these acts cannot be used as the 9, 1990, neglect factual of a
On November
State
basis
for both
charged
charge,
Shipleys
dependant charge
as follows:
and the murder
Despite
Supreme
2.
the recent United States
76 L.Ed.
we must also look to the
306], analysis
decision in United States Alvin J. Dix
charged
Court's
v.
are
manner
in which the offenses
-
-,
Foster,
on and Michael
2849,
U.S.
113 S.Ct.
merely
statutory
not
definitions of the of-
(1993),
718 Shipley of the condition of victim's punish to Gloria sessment be to do so would bruises, noting In to she body. addition same acts. for the twice open least one noted that there was at also Ind., (1989) 538 Strong v. State See four millimeters in area on each foot two to (sentence 929 and convic N.E.2d © area nurse stated that size. Another causing neglect dependant of a for tion area, the tissue "looked almost like necrotic bodily injury vacated view serious pathologist dying or dead." Forensic was of for murder where both conviction the left foot Dr. Michael Clark stated that acts); from the same fenses arose it. had a crator-like lesion with crust on (when Hall, 435-436 ne- 493 N.E.2d at Kim the area as a "black Dr. described homicide charge and reckless gleet spot" and later referred to the area as upon parents' charge based were both mark on the left foot. burn treatment to provide medical failure illness, five-day during his their son presented, There was no evidence howev- parents' con jeopardy prevents double er, how or when the wounds occurred as to offenses); for both victions Also, there or inflicted them. was no who (1980), Ind.App., 408 Smith from a fact-finder could evidence which top (improper impose to the infer that small wounds N.E.2d neglect depen- of a sentence for both any way endangered feet in the victim's manslaughter). involuntary dant and fact, sentencing her life or health. In Shipley's phase of Gloria trial was the first distinguishable is from present case suggested time that it was ever probative there is evi- those cases which neglect dependant, felony of a as a Class B pattern of acts dence to show a continual charge, should based on the wounds on be neglect independent from the constituting presented the victim's feet. The evidence dependant. causing the death of the acts a matter of at trial was as law (1984), Ind., 460 e.g., See Bean v. State insufficient Shipley's for to sustain Gloria conviction 936, 942-943; N.E.2d Hence, dependant. neglect of a her convic- (1989),Ind.App., Gasaway v. State tion on this count must be reversed. 898, 903-904, denied; N.E.2d trans. Finally, the trial court Hughes Ind.App., v. Gloria State argues allowing question erred 1300-1301 trans. denied. concerning preference witnesses her sexual Here, the evidence showed that the acts of Shipley's Gary and the status of medical neglect resulted in the victim's death. During of the license. cross-examination essence, pattern neglect codefendant, the trial court allowed the means which the murder was commit- to ask him if there was a sexual Thus, jeopardy precludes Ship- ted. double relationship between Gloria and his ley's conviction and sentence for both of- first wife at the time of his and first his fenges. separation. wife's The codefendant stated The State asserts that wounds he, period that for a of time that his first tops sepa to the feet were victim's wife, and Gloria under the same roof. lived rate and distinct from those that caused continuing objection, Over a the codefend- death; hence, injuries her those can be ant testified that he believed that his first support Shipley's used conviction "just good wife and Gloria were friends." dependant causing serious The codefendant further testified that his bodily injury. Contrary to the State's as *9 first wife was infatuated with Gloria. Dur- sertion, insufficient to the evidence was ing Shipley, cross-examination of Gloria show that the small wounds on the victim's being sexually she denied involved with the dependant. neglect of a feet constituted codefendant's first wife. duty nurse Karen Bertram was on Staff A trial court has broad discretion brought day the victim was to the emergency ruling After resusci- in on of the evidence. hospital's room. relevance Lo failed, (1987), Ind.App., Bertram made an as- max 510 N.E.2d tation efforts v. State
719 as a Class B dependant, for if it tends 215, is relevant 218. Evidence fact or sheds a material disprove felony. or prove guilt or innocence light on the
any v. State accused. Davidson SULLIVAN, J., opinion. with concurs 1077, Relevant evidence 1088. 558 STATON, J., part in and concurs dissents is sub- probative if its value inadmissible is part opinion. in with danger un- by the of stantially outweighed issues, or confusion of the prejudice, fair SULLIVAN, Judge, concurring. Lomax, N.E.2d at 510 misleading jury. treatment majority's disagree I in given latitude A trial court is wide 218. testimony of Gloria of: the admission of the evi- weighing probative value (Majority Opinion at Shipley's "possible" of its possible prejudice against the dence Ship- 719) relationship Gary sexual admission, ruling be reviewed and its will possibility that a A mere ley's first wife. of discretion. only for an abuse inadequate is relationship existed sexual Here, allowed the the trial court At the evidence. for admission of basis theory any possible testimony on best, only to could amount such evidence to the ef relationship was relevant sexual Further- speculation or innuendo. sheer be had on the children's may fect it have more, as relevant to admit such evidence did not abuse its The trial court havior. (Majority have had" may the effect "Ut testimony on this allowing in discretion supplied]) upon Opinion [emphasis 719 at Further, trial court reduced basis. is to double the children's behavior pro testimony by prejudicial effect of the testimony. De- speculative nature of and notes hibiting of a letter the admission import such prejudicial spite the obvious first wife's regarding the codefendant's evidence, I deem its admission nevertheless feeling Gloria. about in doubt beyond a reasonable harmless During cross-examination guilt. overwhelming evidence light of the codefendant, if asked him his in ma- respects I concur In all other restriction. The medical license was under jority opinion. was rel argued that this information evant, gave him a motive as the restriction STATON, dissenting part in and Judge, treatment for failing to seek medical concurring part. in risking having daughter, thereby his suspended or of his license the remainder I part. concur in part in dissent of child allegations revoked because dealing with double as to Issue V dissent allowed the testimo The trial court abuse. erroneously ap majority jeopardy. the motive. ny the codefendant denied prohibit sen test plies a same-conduct admitting in The trial court did not err neglect of a Shipley for murder and tencing as to the motive of Any evidence evidence. adopted a same- dependant. While Indiana high probative clearly has a an accused Tawney in conduct test Davidson, 558 N.E.2d at See value. 588, denied, 582, Ind., reh. prevented the State The trial court from adopted a Supreme Court States the United pre revealing restriction involved that the Grady v. Corbin test same-conduct members, drugs family thus scribing 495 U.S. S.Ct. prejudicial much of the value. removed Supreme States L.Ed.2d the United Moreover, no reference the evidence made Grady. overruled See Court has since Shipley. The trial court did not to Gloria Dixon and Mi v. Alvin J. United States testimony allowing err in into evidence - -, -, Foster, 113 S.Ct. U.S. chael medical the codefendant's restricted as to (1993). L.Ed.2d 556 license. Dixon, supra, the Court determined appli in its test was unstable part, part same-conduct Affirmed reversed test estab and the same-elements instruction for the trial cation remanded with *10 States, Shipley's Blockburger lished in v. United court to vacate Gloria conviction 180, 182, 299, 304, Supreme 52 S.Ct. 76 L.Ed. United States in discarding U.S. Court the same-conduct test and limit our double (1932) controlling be the test for should - Dixon, jeopardy analysis. double U.S. jeopardy analysis to that set forth in Block -, Dixon, burger. supra. at See at 113 S.Ct. analysis
Applying Blockburger case, present the crimes of murder and
neglect dependent have different stat-
utory Specifically, elements. IND.CODE (1988)provides part:
35-86-1-4 relevant person having dependent
A care of knowingly intentionally
. who or ... places dependent in a situation that ESTATE OF Michael K. MARTIN Kathryn MARTIN, Administratrix, may endanger his life or health com- ... Ann dependent.... mits aof Kathryn Martin, Individual, Ann an Martin, Kathryn Kyle Ann Mi b/n/f (Supp.1992) provides IND.CODE 35-42-1-1 chael Martin and Clinton McCallum part: in relevant Martin, Appellants-Plaintiffs, person knowingly A who or inten- ... tionally being kills another human ... v. murder, felony. commits CONSOLIDATED RAIL CORPO majority's opinion allows Watkins, RATION and R.D. separate commit these two and distinct of- Appellees-Defendants. punished fenses and be for one of- No. 27A02-9202-CV-74. type instability fense. This is the in the same-conduct test which induced the Unit- Appeals Indiana, Court of Supreme ed States Court to overrule Gra- Second District. Dixon, dy, supra. supra. See Sept.13,1993. present case, jury heard testi- mony Amy's body was covered with stages healing;
bruises at various
Amy forced to dishwashing swallow
soap; Amy and that was forced to consume
liquids and foods which were laced with
pepper. Additionally, heard Dr.
Stephen testify long Cole term
ingestion pepper was a of child form present
abuse. The information in the case fifty-four
covered a day period. Even if neglect may acts of overlap with some
of the acts charge, contained in the murder jeopardy
there is no double
under Flowers
105-
(1988), Ind.,
The same-conduct person test allows a separate
commit two crimes with different escape
elements and the consequences of a
portion of her instability actions. The
the same-conduct test is reflected in the majority adopts
result present
case. Because of the instability inherent application test, of the same-conduct
conclude we should follow the lead of the