Bostick v. State
| Decision Date | 19 August 2002 |
| Docket Number | No. 33S00-9911-CR-651.,33S00-9911-CR-651. |
| Citation | 773 N.E.2d 266 |
| Parties | Amy BOSTICK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Following the death of her three children, ages one, two, and four, who were locked in their room during a house fire, the defendant, Amy Bostick, was charged with and convicted of three counts of murder and sentenced to life without parole for the three counts of murder. She was also convicted on a charge of Arson, but the trial court did not sentence her on this count because of the Double Jeopardy Clause of the Indiana Constitution. Upon her additional conviction of sexual misconduct with a minor,1 the defendant was given a concurrent sentence of fifteen years. In this direct appeal, the defendant raises three issues: (1) admission of her statements to law enforcement officers; (2) refusal of her tendered instruction on reckless homicide; and (3) imposing three sentences to life without parole as manifestly unreasonable.
As her first argument, the defendant contends that the trial court erred by failing to exclude her July 28, 1998, statement to law enforcement officers on grounds that its probative value was substantially outweighed by its danger of unfair prejudice, confusion of issues, and of misleading the jury. In the course of making this argument, the defendant also claims that the exhibit contained interrogation that violated Ind.Evidence Rule 704(b), which prohibits a witness from testifying to opinions concerning guilt or innocence in a criminal case. The State argues that she has waived her challenges to the admission of this statement for failure to object at trial.
Four fire investigators testified that the fire that took the lives of the defendant's children was deliberately set by pouring and igniting flammable liquid in the closet of the children's bedroom and along the wall separating the bedroom from an adjacent room. As the fire consumed the children's bedroom, the children were locked inside. The doors to the house were also locked. The only other people in the house were the defendant and her teen-aged boyfriend. The defendant woke the boyfriend after the fire started. The defendant gave five statements to law enforcement authorities regarding the fire: March 16th (the night of the fire) at 2:54 a.m. and 9:48 a.m., March 24th, July 24th and July 28th.
At trial, when exhibits consisting of the videotape and transcript of the final July 28 interview with the defendant were offered in evidence, the defendant objected, referring solely to "the reasons in the written motion filed with the Court and heard and determined by the Court previously." Record at 3515. The trial court overruled the defendant's objection, stating that it "will rule as it did before." Id.
Approximately six weeks earlier, the defendant had filed a motion to exclude evidence of her interview by police on July 28, 1998,2 following her polygraph examination, and after she was advised that she had failed the examination. The defendant's motion acknowledged that her statements during the interview were knowingly and voluntarily given, but urged that the statement should be excluded because: (1) it was "objectionable and tainted" due to the repeated references to and/or inferences based upon the polygraph results; (2) it is irrelevant and violates Indiana Evidence Rule 401, and that "the probative value of said evidence is substantially outweighed by the danger of unfair prejudice;" and (3) even if redacted, the resulting statement "lacks evidentiary value other than accusation by the interrogators" and the defendant's repeated denial of memory regarding the incident and her "apparent acceptance of the polygraph results." Record at 141. Before ruling on the motion, the trial court heard further argument of counsel and twice reviewed the videotaped statement along with its transcription in two different formats. Record at 270. The trial court understood the defendant to claim that the probative value of the evidence in the statement was outweighed by the danger of unfair prejudice arising from the defendant's responses being directly affected by the polygraph results, and "the potential of confusion of issues could exist in that statement, without reference to the polygraph, could confuse the jury." Record at 271 (emphasis added). Concluding that it was not required to exclude a properly redacted statement, the trial court denied the defendant's motion to exclude the statement based on relevance and unfair prejudice, ordering forty-five redactions and corrections. Record at 272-79.
We acknowledge that, as to the redacted statement, the objections expressed in the defendant's motion were less than clear, and that her argument on appeal is slightly different from the one made in the trial proceedings. However, her motion did direct the trial court's attention to the requirement in Evid.R. 403 that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." And the trial court did express consideration of these issues when it ordered the redaction of numerous parts of the statement. Under the circumstances presented, we believe that the defendant's appellate claim was sufficiently presented to the trial court to obviate the purpose of procedural default on this issue. Further, such grounds were preserved for appeal when the defendant made a contemporaneous objection at trial expressly referring to the arguments in her pre-trial motion. Record at 3515. The defendant's appellate claim that Ind. Evid.R. 704(b)3 was violated, however, was not presented at trial or in the defendant's pre-trial motion to exclude that was referenced in her trial objection, and thus procedural default applies to prevent our consideration of this claim. See Brown v. State, 728 N.E.2d 876, 878 (Ind.2000)
.
With respect to her asserted violation of Ind.Evid.R. 403, the defendant now argues that any probative value of her July 1998 interview was substantially outweighed by the danger of unfair prejudice from allowing the jury to hear her interrogators "repeatedly assert their beliefs and opinions that there was absolutely no doubt that [the defendant] had set the fire that killed her children." Br. of Defendant-Appellant at 34.
This interview occurred immediately after the defendant had taken a polygraph examination and had been told that she had lied when asked whether she had set the fire. The defendant contends that the interrogating officers then used an "interrogation technique of telling [her] over-and-over again that they already knew that she did it, and that because they knew she did it, she did remember what she did and why she did it." Br. of Defendant Appellant at 29. Among the examples presented by the defendant's brief and appendix are the following:
No, that's not the truth Amy. You know that you set that fire [Record at 3524].
We know the truth Amy and we know you did it [Record at 3526].
The interview does not contain any explicit admission of guilt by the defendant. Throughout the entire interview, despite the interrogators' insistence that she started the fire, the defendant maintained that she had no recollection of setting the fire that killed her children. At one point, during her interrogators' inquires regarding why she committed the crime, the questioner asserted to her that "you did it, that you wanted to get rid of the kids, so you could have Jacob [her boyfriend]." Record at 3568. She replied, Id. A few questions later, responding to further questioning regarding why, the defendant said: Record at 3570. A few questions later, the questioner again asserted, "Okay, well we all know you did it" and asked, Record at 3573. The defendant responded:
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