Bergmann v. State

Decision Date26 December 1985
Docket NumberNo. 4-585A140,4-585A140
Citation486 N.E.2d 653
PartiesDavid Bruce BERGMANN and Kathleen C. Bergmann, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Dennis D. Graft, Robert C. Way, Kendallville, for appellants.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Defendants-Appellants, David Bruce Bergmann and Kathleen C. Bergmann, appeal their jury convictions for reckless homicide, a class C felony, 1 and neglect of a dependant, a class B felony. 2

We affirm.

ISSUES

Bergmanns raise eight issues for our consideration. We have consolidated and restated them:

1. whether the trial court erred in denying Bergmanns' motion to strike the jury panel;

2. whether the trial court erred in permitting expert testimony concerning cause of death;

3. whether the defenses of mistake of fact and religious treatment were properly considered;

4. whether the child neglect statute, as characterized by the prosecutor, is unconstitutional; and

5. whether their reckless homicide convictions are contrary to law and unsupported by sufficient evidence.

FACTS

On June 7, 1984, David Bergmann notified the Ligonier Police Department his 9-month-old daughter, Allyson, was dead. Police Officers Calvin Kline and Thomas Lock investigated. They were joined at the Bergmann residence by John E. Ramsey, M.D., Coroner of Noble County. Neither the police officers nor Dr. Ramsey informed the Bergmanns of the right to remain silent.

The Bergmanns gave statements relating events of the days preceding the death of their daughter. In summary, they said Allyson became ill on May 28, 1984, and they treated her with prayers, fasting and invocations of scripture. Allyson died June 7, 1984.

On June 28, 1984, the Bergmanns were each charged by information with reckless homicide and neglect of a dependent. They waived the right to counsel, electing to act pro se. At the court's urging they accepted court-appointed standby counsel. The court authorized their use of the law library at the Noble County Courthouse.

Bergmanns were tried before a jury and found guilty as charged. Each defendant received concurrent sentences of 5 years for class C felony reckless homicide and 10 years for class B felony neglect of a dependent.

Additional facts necessary to resolve the issues presented are discussed below.

DISCUSSION AND DECISION
I. Denial of Motion to Strike Jury Panel

Following voir dire of part of the jury panel, David expressed dissatisfaction with the prosecutor's questioning and with the response of a panelist. The court considered David's expression of dissatisfaction a motion to strike the panel and denied it. The Bergmanns contend the court erred in refusing to strike the panel. They assert the prosecutor's questions and a panelist's responses tainted the remaining members of the panel.

(a) Panelist's Statement

In responding to the court's inquiry, one panelist, Kunce, stated he had formed an opinion concerning the guilt of the defendants, and could not set aside his opinion. He indicated the reasons for his opinion were (a) his knowledge of the church attended by the Bergmanns, and (b) his knowledge of other deaths associated with the church. Kunce was excused before other panelists were brought in. The trial court admonished the remaining members of the panel to disregard Kunce's statements, after determining they could disregard them. The Bergmanns contend the entire panel should have been dismissed. We disagree.

Our supreme court has consistently held trial judges have broad discretion in regulating the form and substance of voir dire. To establish error there must be shown an abuse of discretion making a fair trial impossible. E.g. Gossmeyer v. State (1985), Ind., 482 N.E.2d 239, 241. Refusal to strike the jury panel was not an abuse of discretion here.

Kunce's remarks stated no facts relevant to the offenses charged. He merely said he had formed an opinion and could not fairly consider the facts presented. He said his opinion was based upon publicity, his living in the area of the Bergmanns' church, pre-trial discussion with others, and personal knowledge of an unrelated incident. Kunce did not relate any substantive facts or evidentiary matters which would necessarily prejudice other jurors. Neither did he articulate whether his opinion was one of guilt or innocence. Cf. Stroud v. State (1983), Ind., 450 N.E.2d 992, 994-995; Bradberry v. State (1977), Ind., 364 N.E.2d 1183, 1186-1187.

Usually, no reversible error will be found where a jury has been admonished to disregard what has occurred or other curative measures have been taken. Cf. Freed v. State (1985), Ind., 480 N.E.2d 929, 931; Ramos v. State (1982), Ind., 433 N.E.2d 757, 759. The admonition is presumed to have cured any error, particularly when the defendant did not object to the admonition. Barnes v. State (1982), Ind., 435 N.E.2d 235, 238. Bergmanns did not object to the admonition here. The court did not err in refusing to strike the panel.

(b) Prosecutor's Questions on Voir Dire

The Bergmanns next assert prosecutorial misconduct placed them in a position of grave peril to which they should not have been subjected. They claim such conduct is evidenced by the substance of the prosecutor's questions to the jury during voir dire. They assert his "... question(s) and comment(s) were deliberately calculated to prejudice the fair trial guarantees of the defendants by conditioning the prospective jurors to receive the impending evidence, not with an open mind and resolution to give the defendants the benefit of reasonable doubt but rather with the seeds of suspicion firmly planted and anxiously awaiting germination." (Appellants' Brief 15).

Although they forcefully discuss what they believe to be the proper purpose of voir dire and attempt to support their position by presenting 3 pages of photocopied prosecutorial voir dire, the Bergmanns failed to voice objections to any of these statements or questions at trial. Thus, they have preserved no error for review on this issue. Failure to raise a specific objection at the time improper comments are made results in waiver of the issue for review. E.g. Abercrombie v. State (1985), Ind., 478 N.E.2d 1236, 1238; Isom v. State (1985), Ind.App., 479 N.E.2d 61, 68.

II. Expert Witness Ramsey's Testimony
(a) Expression of Opinion as to Cause of Death

After lengthy examination as to his education, training, experience, the course of Allyson's illness, the autopsy performed upon Allyson, and his knowledge of the disease from which she suffered, Dr. Ramsey was asked to give an opinion as to whether Allyson would have died had she been treated in a timely fashion. David Bergmann then objected, stating

Objection, Your Honor, that's, ah, it's on the grounds that it calls for a conclusion it's an after death allegation to support a before death allegation and that is a speculation.

(R. 416). The objection was overruled. Ramsey then was asked

Doctor, within the bounds of reasonable medical certainty and looking at what you were told and also the results of the autopsy, and your training and experience as a physician, do you have an opinion as to whether or not Allyson Bergmann if she were timely medically treated if she would have died?

(R. 416). Ramsey responded

I believe that Allyson had she had timely treatment had, would have had a very good chance of surving (sic) this illness. Notice I said timely.

(R. 416). Ramsey testified Allyson had bacterial meningitis, and had no chance of survival without medical treatment. (R. 416). He stated early treatment in cases of this type provides a 90-95% survival rate.

The Bergmanns argue the question called for speculation. They contend Ramsey gave an opinion on a mere possibility. They note a doctor's testimony a thing is possible is no evidence at all. Palace Bar, Inc. v. Fearnot (1978), 269 Ind. 405, 415, 381 N.E.2d 858, 864.

In Palace Bar, the testifying physician was asked whether a fall could produce a heart attack. He responded it was possible. The court in Palace Bar noted there were several possibilities as to when decedent Fearnot had the fatal heart attack and there was no way of knowing, to a point of medical fact or conclusion, which of the possibilities occurred.

Ramsey's answer was not Palace Bar mere speculation. Ramsey's response was probative evidence because it was based upon reasonable medical certainty. Palace Bar, Inc., 269 Ind. at 415, 381 N.E.2d at 824.

Further, the "reasonable medical certainty" test of Palace Bar was subsequently modified by our supreme court in Noblesville Casting Division of TRW, Inc. v. Prince (1982), Ind., 438 N.E.2d 722. We are cognizant of our supreme court's lack of unanimity concerning the extent to which Palace Bar's reasonable medical certainty test has been modified. However, any fair reading of Palace Bar in conjunction with Noblesville Casting makes Ramsey's testimony probative.

In the plurality opinion of Noblesville Casting Justice Hunter articulated foundational requirements of expert witnesses and the circumstances under which they should be permitted to give an opinion. Noblesville Casting, 438 N.E.2d at 727. Justice Pivarnik, who spoke for the court in Palace Bar, concurred in Noblesville Casting with a separate opinion joined by Chief Justice Givan. What is clear from Noblesville Casting is an expert's opinion resulting from speculation in a vacuum is nonprobative and inadmissible. 3 What is equally clear is the expert witness need not speak with absolute certainty. 4

Ramsey's expert opinion was admissible.

(b) Miranda Warnings

The Bergmanns also contend the trial court erred by denying their motions to suppress Ramsey's testimony because they made statements to him without Miranda warnings. The State contends they waived the error by failing to make timely objection, and their...

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