Ackerman v. State

• Decision Date: 05 April 2016
• Docket Number: No. 49S00–1409–CR–770.,49S00–1409–CR–770.
• Citation: 51 N.E.3d 171
• Parties: Michael ACKERMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

51 N.E.3d 171

Michael ACKERMAN, Appellant (Defendant below)

v.STATE of Indiana, Appellee (Plaintiff below).

No. 49S00–1409–CR–770.

Supreme Court of Indiana.

April 5, 2016.

Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Direct Appeal from a Sentence of Life Imprisonment With the Possibility of Parole

David

, Justice.

This case raises an issue of first impression in Indiana and has divided both state and federal jurisdictions. Under the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The primary question is whether the admission of an autopsy report into evidence violates the defendant's constitutional rights under the Confrontation Clause, where it has been demonstrated that the pathologist who performed the autopsy is unavailable to testify at trial, and the defendant had no prior opportunity for cross-examination. After examining U.S. Supreme Court precedent, precedent from other jurisdictions, relevant state statutes, secondary sources, and the circumstances of the present case, we now conclude that the autopsy report in the present case was not testimonial. Thus, Ackerman's confrontation right was not violated when the report was admitted into evidence, nor did a violation arise when a surrogate pathologist testified regarding the information detailed in the autopsy report.

In addition, although Ackerman's prosecution for the murder of a toddler occurred many years after the child's death, the delay did not actually or substantially prejudice Ackerman, nor could Ackerman demonstrate that the State intentionally delayed prosecution. Thus, we also hold that the delay, under the circumstances of this case, did not result in a due process violation. Finally, we hold that even if the trial court erred at sentencing by taking into consideration sentencing statutes that were inapplicable in this case, the error was harmless.

Ackerman's conviction and sentence are affirmed.

Facts and Procedural History

In 1977, D.S. was in a relationship with Michael Ackerman. D.S. was living in an apartment with her two children, three-year-old I.W., and twenty-one-month-old W.W. On the morning of January 17, 1977, D.S. was leaving early to go to work, but she first checked on W.W., who was lying in his crib and stood up when D.S. entered the room. D.S. noticed nothing wrong with W.W. at that time. That day, Ackerman had agreed to watch the children while D.S. went to work, and when she left the apartment, Ackerman was alone with I.W. and W.W.

At some point during the morning, D.S. received a panicked call from Ackerman that W.W. was not breathing. Ackerman told D.S. that he had “beat” on W.W.'s stomach to resuscitate him. (Tr. at 159.) D.S. told Ackerman to stop and call the police, and she immediately left work to go home.

When D.S. arrived at the apartment, Ackerman walked up to D.S. and handed her W.W.'s lifeless body. W.W. was limp and his eyes were rolled back in his head. D.S. still attempted to revive W.W. and was screaming frantically for the neighbor to help. The neighbor called for an ambulance and attempted CPR, with no result. When the ambulance arrived, the EKG showed no signs of life, and no further attempts to revive W.W. were made.

On the same day, an autopsy was conducted by Dr. John Eisele. The autopsy report revealed multiple injuries to W.W.'s head, neck, abdomen, extremities, and internally.

The autopsy report listed thirty-five separate injuries. Dr. Eisele concluded that the cause of W.W.'s death was multiple injuries and that the manner of death was homicide. However, the Coroner's verdict listed the manner of death as “undetermined.” (Exhib. Tr. at 69

.) Although Ackerman was questioned by police, no criminal charges were filed.

Thirty-six years after W.W.'s death, I.W. contacted the Indianapolis Metropolitan Police Department Cold Case Unit, where she left a message and eventually spoke directly to Detective David Ellison. She reported to Detective Ellison that she remembered the day her brother died. I.W. recalled Ackerman telling her that he was going to give W.W. a bath, but shortly after that she heard W.W. screaming. I.W. walked to the bathroom door and saw Ackerman shaking W.W. and remembered W.W. struggling and his face turning purple.

Detective Ellison began an investigation. He discovered that several of the officers who responded to the call of W.W.'s death; Dr. Eisele, who performed the autopsy; and two police officers, who had been present during the autopsy, were all now deceased. However, I.W.'s statement directly implicating Ackerman, the recollection of an ambulance driver who arrived on the scene and recalled the injuries to W.W. as being fresh, the autopsy report that concluded the manner of death was homicide, and the individual assessment of the autopsy from two certified pathologist, who also concluded that the manner of death was homicide, culminated in Ackerman's arrest on April 24, 2013, and charge of second degree murder.¹

On May 20, 2014, Ackerman signed a verified waiver of his right to a trial by jury, and the case proceeded to a bench trial. Ackerman also filed a motion to dismiss asserting that the delayed prosecution between W.W.'s death in 1977 and when he was charged in 2013 resulted in the loss of physical and testimonial evidence that was material to his defense, and as such, substantially prejudiced him, violating his Fifth Amendment right to due process. The trial court denied the motion to dismiss, finding no deliberate delay on the part of the State or substantial prejudice to Ackerman.

During the course of the bench trial, the State introduced into evidence the Coroner's file, which included the autopsy report. Ackerman objected to the admission of the autopsy report, asserting that it constituted a Confrontation Clause violation because the report was testimonial, Dr. Eisele was unavailable as a witness, and Ackerman had no prior opportunity to cross-examine Dr. Eisele. However, the trial court overruled Ackerman's objection and allowed the Coroner's file to be admitted into evidence.

In addition to the autopsy report, the State called Dr. Dean Hawley, a forensic pathologist, to testify regarding his independent opinion of W.W.'s death and injuries based upon the autopsy report. Dr. Hawley was the pathologist for Marion County during the time W.W. had died, but was not present during W.W.'s autopsy. Dr. Hawley testified in part to the type of injuries W.W. incurred and gave his own medical opinion that the cause of death was from “blunt force injuries of the head

, chest, and abdomen” and “within reasonable medical certainty, the manner of death for [W.W.] [was] homicide.” (Tr. at 261.) No objections were made to Dr. Hawley's testimony.

Ackerman continued to assert that he had not caused the fatal injuries to W.W. or, alternatively, that the injuries leading to W.W.'s death were accidental. The trial court ultimately found Ackerman guilty of second degree murder, and he was sentenced under the relevant sentencing statutes in 1977 to life in prison with the possibility of parole.

Ackerman appealed, asserting three claims: (1) violation of his Sixth and Fourteenth Amendment rights under the Confrontation Clause by the admission of the autopsy report and Dr. Hawley's testimony regarding Dr. Eisele's findings and conclusions from the report; (2) violation of his Fifth Amendment Due Process Clause right based upon the thirty-six-year delay in prosecution; and (3) abuse of the trial court's sentencing discretion when the court considered the current sentencing statutes for murder when his sentence was imposed.

Ackerman then filed a verified motion for the Court of Appeals to determine, pursuant to Indiana Appellate Rule 6

, that the Indiana Supreme Court had jurisdiction over the case and to stay briefing pending resolution of the jurisdictional issue. The Court of Appeals ordered that the appeal be transferred to this Court under Indiana Appellate Rule 6,² and this Court accepted jurisdiction. Upon review, we now hold that neither the admission of the autopsy report nor Dr. Hawley's testimony regarding the report violated Ackerman's constitutional confrontation right. We also hold that Ackerman failed to demonstrate that his right to due process was violated based upon the delayed prosecution in this case. Finally, we find that any error that occurred at sentencing was harmless. Ackerman's conviction and sentence are affirmed.

Standard of Review

When ruling on the admissibility of evidence, the trial court has broad discretion, which a reviewing court will disturb only where it is shown that the court abused that discretion. Speers v. State, 999 N.E.2d 850, 852 (Ind.2013)

(citing Turner v. State, 953 N.E.2d 1039, 1045 (Ind.2011) ). However, when a constitutional violation is alleged, “the proper standard of appellate review is de novo.” Id.

In reviewing a motion to dismiss, “[a] defendant has the burden of proving, by a preponderance of the evidence, all facts necessary to support a motion to dismiss.” Barnett v. State, 867 N.E.2d 184, 186 (Ind.Ct.App.2007)

. Where the defendant is appealing from a negative judgment, “we will reverse only if the evidence is without conflict and leads inescapably to the conclusion that [the defendant] is entitled to a dismissal.” Id.

Finally, sentencing is left to the discretion of the trial court, and we review sentencing only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind.2007)

, reh'g granted on other grounds.

Discussion

Three primary issues are raised by Ackerman. Ackerman asserts that the admission of an autopsy report that was prepared by Dr. Eisele, who is now deceased, and whom Ackerman had no prior...