Kirby v. State, 55A01-0109-CR-335.

• Decision Date: 29 August 2002
• Docket Number: No. 55A01-0109-CR-335.,55A01-0109-CR-335.
• Parties: Judy D. KIRBY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

774 N.E.2d 523

Judy D. KIRBY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 55A01-0109-CR-335.

Court of Appeals of Indiana.

August 29, 2002.

Jennifer Jones Auger, Jones Hoffman & Admire, Franklin, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Judy D. Kirby appeals her convictions for seven counts of murder as felonies,¹ four counts of neglect of a dependent resulting in serious bodily injury as class B felonies,² and one count of aggravated battery as a class B felony,³ and her sentences for seven counts of murder and one count of aggravated battery. Kirby raises seven issues, which we consolidate and restate as:

I. Whether the trial court erred by denying her motion to dismiss pursuant to Ind. Criminal Rule 4(B) because the State had failed to bring her to trial within seventy days;

II. Whether the trial court abused its discretion by admitting evidence of prior bad acts under Ind. Evidence Rule 404(b);

III. Whether the trial court abused its discretion by denying two motions for mistrial predicated upon prosecutorial misconduct;

IV. Whether the trial court abused its discretion by failing to give a circumstantial evidence instruction;

V. Whether the trial court abused its discretion by allowing two officers to remain in the courtroom despite a separation of witnesses order; and

VI. Whether her sentence is manifestly unreasonable in light of the offenses committed and the character of the offender.

We affirm.

The issue on which this case turned at trial was Kirby's state of mind on March 25, 2000, as she drove her car toward the collision that took the lives of seven people. The State's theory was that Kirby intended to commit suicide because of her tumultuous relationship with her boyfriend, Tinnie Kirby ("Tinnie"), and her fear of either being arrested as a result of her involvement with drugs or losing her children. The defense maintained that Kirby suffered from a medical condition called hyperthyroidism, which caused her to become psychotic and paranoid. The defense also contended that Kirby's medical condition, coupled with a badly designed highway ramp and poor medical treatment, was the cause of the fatal collision.

The facts most favorable to the convictions follow. For some time prior to March 25, 2000, Kirby was under stress because of her relationship with Tinnie and her concern about losing him and her children. Kirby was also concerned about getting into trouble with the police because of her involvement with drugs. As a result of this stress, Kirby exhibited many bizarre behaviors, such as wearing disguises, placing cameras in trees, reporting that people were watching and following her, and expressing thoughts of suicide. On March 2, 2000, Kirby was involuntarily committed to the psychiatric unit at St. Francis Hospital. There, Kirby was diagnosed with psychosis and given Risperdol, an anti-psychotic drug. Kirby was also diagnosed with hyperthyroidism. On March 4, 2000, Kirby's mental condition had improved to the point where she was no longer seen as an immediate danger to herself or others and, thus, she was released from St. Francis Hospital.

On March 25, 2000, Kirby, three of her eight children, and her nephew, J.Y., (collectively, the "Children") left the Greenwood residence of Jeanetta Scott, Kirby's sister, and drove to a car wash and then to a McDonald's for soft drinks. Scott was worried about Kirby's condition and followed Kirby in her own car. When Kirby left McDonald's, she passed Scott's car and then came to a complete stop in the roadway. Scott went around Kirby's stopped car and turned around at the first side street available. However, Scott lost sight of Kirby because Kirby drove away after Scott had passed her.

Subsequently, Kirby stopped her car at a stop sign near Sarah Mullis's driveway and remained there for approximately two minutes as other motorists drove around her. Mullis approached Kirby's car and asked if Kirby needed to use her telephone. After Kirby indicated that she did need to use the telephone, Mullis went into her house, got a cordless telephone, and gave it to Kirby. Kirby drove away with the phone, and Mullis called 9-1-1. However, when Mullis looked out a window, she saw Kirby's car sitting in front of her garage. Mullis went outside and retrieved the telephone. Kirby sat in her car in Mullis's driveway staring straight ahead for approximately five minutes and then drove off.

Kirby then showed up uninvited at a baby shower at State Road 67 and High School Road. Kirby exclaimed to everyone at the shower that she was looking for a birthday party because it was her son's birthday. Kirby and the Children stayed at the baby shower for approximately fifteen or twenty minutes and then left in Kirby's car.

At approximately 4:44 p.m., Kirby arrived at a gas station on State Road 67 in Martinsville, Indiana, where she purchased gas and candy. Shortly before 5:00 p.m., Kirby left the gas station and drove her car the wrong way, entering an exit ramp from State Road 67. Kirby accelerated as she drove the wrong way on the exit ramp. Kirby traveled northbound in the southbound lanes of State Road 67. Nine motorists had to take evasive action, such as driving away from the lane in which Kirby was speeding the wrong way, to avoid colliding with Kirby's car. One motorist had continually blown her horn to alert Kirby to the danger. Several motorists testified that Kirby had made no effort to evade oncoming traffic. In addition, Kirby passed six "wrong way" traffic signs and ten "do not enter" signs, which were posted along the roadway and visible to motorists. There was also an emergency lane available to Kirby for getting out of the way of oncoming traffic. Eventually, Kirby's car clipped the back of another car and then collided with a van, causing the van to vault into the air and then land on its side. Kirby's car was traveling over ninety miles per hour when it struck the van. A later investigation of Kirby's car indicated that her brake lights were not "on" at the time of impact.

The van's passengers included Tom Reel, his son, Bradley Reel, and his daughter, Jessica Reel (collectively, the "Reels"), and Bradley's friend, Richard Miller. The Children and the Reels all died at the scene of the collision. Miller was injured and suffered permanent impairment of his back and right foot. Kirby was thrown from her car and suffered a closed head injury and various orthopedic injuries.

On April 14, 2000, the State charged Kirby with seven counts of murder as felonies, four counts of neglect of a dependent resulting in serious bodily injury as class B felonies, and one count of aggravated battery as a class B felony. On April 20, 2000, Kirby filed a request for evidence that the State intended to present under Ind. Evid. Rule 404(b),⁴ which the trial court granted. The trial court set a deadline of March 14, 2001, for the State to disclose to Kirby all new 404(b) evidence. On January 25, 2001, Kirby filed a motion for speedy trial pursuant to Ind. Criminal Rule 4(B). In response, the trial court scheduled Kirby's jury trial for April 3, 2001. Subsequently, on March 14, 2001, the State filed its updated witness list. Kirby then filed two requests for a continuance of the trial, the second of which the trial court granted. However, in granting Kirby's second motion for continuance, the trial court assigned the delay to both Kirby and the State. On April 6, 2001, Kirby filed her motion to dismiss pursuant to Ind. Criminal Rule 4(B), which the trial court denied.

The trial court conducted a jury trial, and the jury found Kirby guilty as charged. At sentencing, the trial court merged the four convictions of neglect of a dependent resulting in serious bodily injury as class B felonies into the murder convictions of the Children. The trial court then sentenced Kirby to sixty-five years each for the three murders of the Reels, fifty-five years each for the four murders of the Children, and twenty years for the aggravated battery of Miller. Further, the trial court ordered that the sentences for the murders of the Reels be served consecutively to each other and to the sentence for the aggravated battery of Miller. The trial court ordered that the sentences for the murders of the Children be served concurrently to each other and to all other sentences. Thus, the trial court sentenced Kirby to an aggregate two hundred and fifteen year term of incarceration.

I.

The first issue is whether the trial court erred by denying Kirby's motion to dismiss pursuant to Ind. Criminal Rule 4(B) because the State had failed to bring her to trial within seventy days. We review this matter de novo. See Vaughan v. State, 470 N.E.2d 374, 377 (Ind.Ct.App. 1984)

(implicitly reviewing an Ind. Criminal Rule 4(B) question about which party was responsible for a delay under a de novo standard), reh'g denied, trans. denied.

On January 25, 2001, Kirby filed a request for speedy trial under Ind. Criminal Rule 4(B). By filing her motion for speedy trial, Kirby invoked the procedures and deadlines of Ind. Criminal Rule 4(B)(1), which provides in pertinent part:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of congestion of the court calendar.

Accordingly, when a defendant files a request for a speedy trial, the State is obligated to bring him or her to trial within seventy days of the request unless delay is caused by court congestion or by the defendant. Id. If the

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