B.S. v. State
| Decision Date | 08 February 2012 |
| Docket Number | No. 49A02–1106–CR–486.,49A02–1106–CR–486. |
| Citation | 966 N.E.2d 619 |
| Parties | B.S., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Linda L. Pence, David J. Hensel, Pence Hensel LLC, Indianapolis, IN, Kathrine D. Jack, Law Office of Kathrine Jack, Greenfield, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Monica Foster, Indianapolis, IN, Julie Cantor, MD, JD, Santa Monica, CA, for Amicus Curiae, Organizations and Individuals Committed To Education and Treatment for Perinatal Psychiatric Illness.
Jennifer Lukemeyer, Voyles, Zahn, Paul, Hogan & Merriman, Indianapolis, IN, for Amicus Curiae, Legal Voice and Perinatal Loss Support Organizations and Experts.
Jennifer Girod, David Orentilicher, Hall, Render, Killian, Heath & Lyman, P.C., Indianapolis, IN, for Amicus Curiae, American Association of Suicidology, et al.
Sandra L. Blevins, Betz + Blevins, Indianapolis, IN, Jill C. Morrison, National Women's Law Center, Washington, DC, for Amicus Curiae, National Organization for Women, Law Students For Reproductive Justice, National Women's Law Center, and Sistersong Women of Color Justice Collective.
Gavin M. Rose, American Civil Liberties Union Foundation, Indianapolis, IN, Alexa Kolbi–Molinas, American Civil Liberties Union Foundation, New York, NY, for Amicus Curiae, American Civil Liberties Union Indiana and American Civil Liberties Union.
B.S. appeals the denial of her motion for bail and writ of habeas corpus ("the Bail Appeal") and the denial of her motion to dismiss the charges against her ("the Dismissal Appeal"). She raises numerous issues,1 two of which we find dispositive:
We reverse in part, affirm in part, and remand.
In December of 2010, B.S. was in the third trimester of a pregnancy that allegedly was the product of an affair with a married man, Zhiliang Guan. Guan broke off his relationship with B.S. that month, and she became distraught. Around the middle of the month, B.S. researched ways to commit suicide and decided she would ingest rat poison.
On December 21, B.S. bought rat poison. On December 23, when B.S. was thirty-three weeks pregnant, she wrote Guan, saying she felt she and the fetus were a burden on Guan, she had resolved to kill herself, and she was "taking this baby, the one you named Crystal, with [her]." (State's Ex. 25 & 26.) B.S. then ingested rat poison. B.S. called Guan and told him she had ingested rat poison and was going to die.
Later that day, an anonymous caller asked police to conduct a welfare check on B.S. When the officer arrived, B.S. insisted she was fine and asked the officer to leave. She then went to the nearby home of her friend, Bing Mak. Mak noticed B.S. was acting strangely, but B.S. insisted nothing was wrong. Finally, B.S. admitted she had taken rat poison, and Mak took B.S. to the hospital for treatment.
On December 24, B.S. was transferred to Methodist Hospital. After she and the fetus were stabilized at Methodist, the doctors gave B.S. a steroid used to improve post-birth lung functioning of children who are born prematurely. B.S. immediately began having mild contractions, and doctors gave her indomethacin to stop the contractions.
On December 31, Dr. Claire Bernardin, an obstetrician, observed an unusual fetal heart rate and advised B.S. the fetus needed to be delivered immediately via caesarean section. B.S. consented, and the doctor delivered via caesarean section an infant B.S. named A.S. Hospital staff immediately transferred A.S. to the neonatal intensive care unit (NICU).
While in the NICU, doctors found A.S. had a high International Normalized Ratio (INR), which indicated her blood could not clot. An ultrasound revealed A.S. had a bilateral Grade III intraventricular hemorrhage.2 A.S.'s condition steadily worsened.
On January 3, 2011, B.S. consented to removing A.S. from life support, and A.S. died. Dr. Jolene Clouse, the forensic pathologist who performed A.S.'s autopsy, indicated on the coroner's verdict report that A.S. died of "intracerebral hemorrhage due to maternal Coumadin3 ingestion[.]" (Defendant's Ex. B.)
B.S. was released from the Methodist Psychiatric Unit on February 4, 2011, and returned to live with Mrs. Mak. On March 14, the State charged B.S. with murder, a felony,4 and Class B felony attempted feticide,5 and B.S. turned herself in on the same day. On March 22, B.S. filed a petition for reasonable bail and writ of habeas corpus, and on March 30, B.S. filed a motion to dismiss the charges against her.
The trial court held a hearing on her bail petition and denied it on June 6. It denied the motion to dismiss on June 20. On June 27, the trial court certified both orders for interlocutory appeal. We accepted jurisdiction on August 15. On B.S.'s motion, we ordered the Bail Appeal expedited. After examination of the Bail Appeal briefs, it became apparent the issues likely to be presented in the Dismissal Appeal would overlap significantly with those in the Bail Appeal. We accordingly reconsolidated the two appeals sua sponte and granted B.S.'s request for oral argument.6
Article 1, Section 17 of the Indiana Constitution recognizes the right to bail: Indiana Code § 35–33–8–2(a) echoes that constitutional provision: That language has been interpreted to imply a presumption that bail should not be granted in a murder case. Bozovichar v. State, 230 Ind. 358, 366, 103 N.E.2d 680, 683 (1952). "The burden is on the applicant to show that the proof is not evident or the presumption of guilt [not] strong." Id. Thus, B.S. was required to demonstrate the State's proof that she "did knowingly kill a fetus that had attained viability, namely: voluntarily ingested rat poison when approximately thirty-three (33) weeks pregnant causing [A.S.] to be born in distress and subsequently die[,]" (App. B7 at 330), was not evident and the presumption of her guilt thereof was not strong.
The trial court denied B.S.'s request for bail. When reviewing a trial court's denial of bail in a murder case, we reverse only for an abuse of discretion. Rohr v. State, 917 N.E.2d 1277, 1280 (Ind.Ct.App.2009). A decision is an abuse of discretion when it "is clearly against the logic and effect of the facts and circumstances." Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007).
At the bail hearing, the State presented evidence B.S. ingested rat poison when she was thirty-three weeks pregnant. The Court admitted B.S.'s suicide note in which she documented her intention to kill herself and her fetus. The doctors who treated B.S. and A.S. both testified B.S. was admitted to the hospital after ingesting rat poison while thirty-three weeks pregnant; she responded well to treatment for the poisoning; A.S. was delivered via caesarean section with B.S.'s consent on December 31, 2010; A.S. suffered a bilateral Grade III intraventricular hemorrhage ; and A.S. was removed from life support and subsequently died on January 3, 2011. The coroner indicated A.S.'s death was caused by an intraventricular hemorrhage due to B.S.'s ingestion of rat poison.
B.S. attempted to rebut the presumption she should not receive bail by offering evidence to support alternate explanations for the intraventricular hemorrhage that led to A.S.'s death. For example, B.S. presented evidence that indomethacin, one of the drugs given to B.S. to stop her contractions, can cause infants to have "intraventricular hemorrhage." (Tr. at 96.) Dr. Lorant, the neonatologist who treated A.S., also testified that a number of other conditions could have caused A.S.'s blood to not clot:
In addition, B.S. presented evidence that called into question the credibility of the autopsy report produced by Dr. Clouse, the forensic pathologist who performed A.S.'s autopsy. That report indicated, "Decedent was injured as a result of her mother ingesting an unknown brand of rat poisoning." (Defendant's Ex. A.) However, B.S. presented evidence that not only did Dr. Clouse fail to conduct any independent research about the effect of rat poison on a child, also she did not consider any other possible cause for A.S.'s intraventricular hemorrhage prior to listing rat poison as the cause of death. Moreover, Dr. Clouse testified she simply relied on the deputy coroner's report in making her determination of A.S.'s cause of death. Yet, Lloyd Sprowl, the deputy coroner, testified:
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