Camm v. State, No. 87S00-0612-CR-499.

Docket NºNo. 87S00-0612-CR-499.
Citation908 N.E.2d 215
Case DateJune 26, 2009
CourtSupreme Court of Indiana
908 N.E.2d 215
David R. CAMM, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 87S00-0612-CR-499.
Supreme Court of Indiana.
June 26, 2009.

[908 N.E.2d 219]

Stacy R. Uliana, Indianapolis, Indiana, Katharine C. Liell, Liell & McNeil Attorneys PC, Bloomington, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Deputy Attorney General, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

F. Thomas Schornhorst, Bloomington, IN, Amicus Curiae for Appellant.

DICKSON, Justice.


The defendant, David R. Camm, appeals his three convictions and sentence of life imprisonment without parole for murdering his wife and two children. We reverse and remand for a new trial.

This was the defendant's second trial. In 2002 a jury convicted him of Murder for the shooting deaths of his wife, their seven-year-old son, and their five-year-old daughter at the family home in Georgetown, Indiana. In that trial, the jury rejected the defendant's alibi that he had been playing basketball at a nearby church at the time his family was killed, and "[t]he key physical evidence ... was the purported high velocity blood spatter on [the defendant's] t-shirt." Camm v. State, 812 N.E.2d 1127, 1129-30 (Ind.Ct.App.2004), trans denied. The Court of Appeals reversed, finding that the defendant was prejudiced by the State's introduction of evidence regarding his poor character — i.e., his extramarital conduct — in violation of Indiana Evidence Rule 404(b). Id. at 1142.

The State reinvestigated the killings and soon connected a man named Charles Boney. The State discovered Boney's DNA on a sweatshirt that had been tucked under the son's body. Because Boney had not figured in the first trial, this marked a major development in the case. Police questioned Boney, and he admitted having owned the sweatshirt but claimed to have donated it to the Salvation Army. Later, police definitively matched him to a palm print found at the scene. After his arrest, Boney provided inconsistent stories but ultimately asserted that he had provided a gun for the defendant and was present when the three victims were shot and killed.

Following the reversal and remand, the parties agreed to change venue from the Floyd Superior Court to Warrick Superior Court No. 2, and that court assumed jurisdiction over the case. The State later dismissed the charges without prejudice and recharged the defendant in Floyd Circuit Court with the three counts of Murder while adding a charge of Conspiracy to Commit Murder. The defendant contested this procedure by filing an original action in this Court, and we ordered venue transferred back to Warrick Superior Court No. 2. The case was transferred, and the State sought a sentence of life without the possibility of parole.

The defendant's second trial in Warrick County began on January 16, 2006. The State's evidence at the second trial substantially mirrored that at the first: forensic evidence, expert testimony, and circumstantial evidence pointed to the defendant as the perpetrator, as well as the defendant's alleged confession to three inmates.

908 N.E.2d 220

Added, however, was evidence regarding Boney as a co-conspirator, and more evidence regarding the defendant's alleged molestation of his daughter. As to motive, the State's theory was that the defendant had molested his daughter, the daughter either had reported or would report the abuse to her mother, and the defendant killed his family to conceal the molestation. To advance this theory, the State introduced autopsy evidence revealing blunt force trauma to the daughter's external genital region and expert testimony opining that the daughter had been sexually molested within the twenty-four hours preceding her death.

At trial, Boney's presence at the scene was undisputed.1 The defense maintained that Boney was the sole perpetrator. In furtherance of this theory, the defense offered evidence of Boney's prior assaults on women and sexual compulsion for feet, his alleged reputation for dishonesty, his failed stipulated polygraph test, and certain inculpatory out-of-court statements. The trial court excluded all of this evidence. The defense also presented testimony that supported the defendant's alibi that he had been playing basketball at the time of the killings and which attacked the State's experts' analysis of the bloodstain patterns on the defendant's clothing.

At the close of the State's case-in-chief, the trial court entered judgment on the evidence in favor of the defendant on the Conspiracy charge. Tr. 108 (w.6, vol.I); Appellant's App'x at 147. At the close of trial, the jury convicted the defendant on all three Murder counts. The trial court entered judgment on the convictions and sentenced the defendant to a term of life without parole. Following an unsuccessful motion to correct error, the defendant filed this appeal. Be cause the defendant was sentenced to life without the possibility of parole, this Court has juris diction under Indiana Appellate Rule 4(A)(1)(a).

The defendant challenges his conviction on four general grounds: (1) the trial court committed reversible error by allowing the State to strike a female juror without a gender neutral reason; (2) evidence was both improperly admitted and excluded, prejudicing the defendant and impinging upon his right to present a defense under the Sixth Amendment to the United States Constitution; (3) the State committed misconduct in charging the defendant with conspiracy in order to frame logically exculpating evidence as inculpating evidence; and (4) the evidence is insufficient to support his conviction. Two particular claims independently require reversal. Specifically, the trial court committed reversible error in allowing speculative evidence and argument that the defendant molested his daughter and in admitting an out-of-court statement that the defendant's wife made to a friend regarding the time she expected to see the defendant at home on the night of the murders. But because sufficient evidence supports the convictions,2 the defendant may be retried, and so we address

908 N.E.2d 221

the other raised issues that are likely to arise on retrial.

1. Speculation regarding whether the defendant molested his daughter

The first ground requiring reversal is the State's repeated emphasis upon speculation that the defendant molested his daughter.

At trial, the State introduced autopsy evidence revealing blunt force trauma to the daughter's external genital region.3 Dr. Corey, a medical examiner, testified for the State that these injuries were consistent with either sexual molestation or a "straddle fall." Tr. 665, 695 (w.5, vol.III). Drs. Spivack and Merk, both pediatricians, also testified for the State and opined that these injuries were inflicted "no more than a couple of days at most and probably somewhat less than that," and were "most likely ... the result of sexual abuse." Tr. 21, 70-71 (w.6, vol. I). In addition, on redirect Dr. Spivack agreed with the State's hypothetical that the daughter, if she had been molested, likely would have told her mother of the source of her injury. Id. at 43-44. Later, the State's closing argument was premised on this hypothesis and culminated with this statement: "He killed the witnesses. He couldn't tell his ... buddies why he was getting divorced because he molested his five-year-old daughter and he watched them die and watched his son die." Tr. 1-5, 96, 197 (w.8, vol.I). Although the State was permitted to emphasize its molestation allegation, the trial court balked several times at the lack of any evidence implicating the defendant. See Appellant's App'x at 627 (before trial: "the record currently before the court shows no more than suggestion and suspicion, at best"); id. at 761 ("[U]ntil adequate connecting evidence to the defendant is established outside the presence of the jury, any alleged evidence with regard to the defendant Camm is not admissible and shall not be offered to the jury hearing this case."); Tr. 223 (w.3, vol.I) (repeating this admonition).

The defendant argues that the trial court abused its discretion by allowing the State to stack inference upon inference of molestation to build its case. As he puts it: "The fact that [the daughter] had nonspecific trauma descended into opinions that [the daughter] was painfully molested which, in turn, descended into the State's argument that [the defendant] molested [the daughter], who told her mother, who decided to leave [the defendant]." Br. of Appellant at 20-21. The State counters that the defendant waived his arguments by failing to object at trial and that, under Evidence Rule 404(b), the daughter's alleged molestation was relevant to show the defendant's motive.

With regard to waiver, the State argues that the defendant did not object when Dr. Corey testified that the daughter's injuries were likely cause by sexual molestation, and only objected to Drs. Spivack and Merk's testimony on cumulative grounds. Although the defendant filed a motion in limine specifically objecting to this molestation line of inquiry, "[o]nly trial objections, not motions in limine, are effective to preserve claims of error for appellate review." Raess v. Doescher, 883

908 N.E.2d 222

N.E.2d 790, 796 (Ind.2008). The trial objection must "stat[e] the specific ground for objection, if [it is] not apparent from the context," so that "[a] mere general objection, or an objection on grounds other than those raised on appeal, is ineffective to preserve an argument for appellate review." Id. at 797 (internal quotation marks omitted). This specificity argument serves "to alert the trial judge fully of the legal issue." Id. (internal quotation marks omitted).

To show preservation of the issue, the defendant speaks to specific objections made during trial. First, the record shows that before Dr. Spivack's testimony,...

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96 practice notes
  • Durden v. State, Supreme Court Case No. 18S–CR–329
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2018
    ...(Stevens, J., concurring). An error is harmless when it results in no prejudice to the "substantial rights" of a party. Camm v. State , 908 N.E.2d 215, 225 (Ind. 2009) ; Ind. Trial Rule 61.5 While there are important contextual variations to this rule,6 the basic premise holds that a convic......
  • Escamilla v. Shiel Sexton Co., No. 54S01-1610-CT-546
    • United States
    • Indiana Supreme Court of Indiana
    • May 4, 2017
    ...evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis." Camm v. State , 908 N.E.2d 215, 224 (Ind. 2009) (quoting Ingram v. State , 715 N.E.2d 405, 407 (Ind. 1999) ). We conclude that in decreased earning capacity claims, these r......
  • Perry v. State , No. 49A05–1012–CR–774.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 2011
    ...there must be sufficient proof from which a jury could find that the defendant committed the prior acts in question. Camm v. State, 908 N.E.2d 215, 223–24 (Ind.2009), reh'g denied. Otherwise stated, “similar act evidence is relevant only if the jury can reasonably conclude that the act occu......
  • Hoglund v. State , No. 90A02–1005–CR–591.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 19, 2011
    ...I find the cumulative vouching testimony heard by the jury to be troubling, there is “no entitlement to a perfect trial.” Camm v. State, 908 N.E.2d 215, 237 (Ind.2009) (Shepard, C.J., dissenting); see also Riley v. State, 489 N.E.2d 58, 61 (Ind.1986); White v. State, 257 Ind. 64, 77, 272 N.......
  • Request a trial to view additional results
96 cases
  • Durden v. State, Supreme Court Case No. 18S–CR–329
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2018
    ...(Stevens, J., concurring). An error is harmless when it results in no prejudice to the "substantial rights" of a party. Camm v. State , 908 N.E.2d 215, 225 (Ind. 2009) ; Ind. Trial Rule 61.5 While there are important contextual variations to this rule,6 the basic premise holds that a convic......
  • Escamilla v. Shiel Sexton Co., No. 54S01-1610-CT-546
    • United States
    • Indiana Supreme Court of Indiana
    • May 4, 2017
    ...evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis." Camm v. State , 908 N.E.2d 215, 224 (Ind. 2009) (quoting Ingram v. State , 715 N.E.2d 405, 407 (Ind. 1999) ). We conclude that in decreased earning capacity claims, these r......
  • Perry v. State , No. 49A05–1012–CR–774.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 2011
    ...there must be sufficient proof from which a jury could find that the defendant committed the prior acts in question. Camm v. State, 908 N.E.2d 215, 223–24 (Ind.2009), reh'g denied. Otherwise stated, “similar act evidence is relevant only if the jury can reasonably conclude that the act occu......
  • Hoglund v. State , No. 90A02–1005–CR–591.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 19, 2011
    ...I find the cumulative vouching testimony heard by the jury to be troubling, there is “no entitlement to a perfect trial.” Camm v. State, 908 N.E.2d 215, 237 (Ind.2009) (Shepard, C.J., dissenting); see also Riley v. State, 489 N.E.2d 58, 61 (Ind.1986); White v. State, 257 Ind. 64, 77, 272 N.......
  • Request a trial to view additional results

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