Clark v. State

• Decision Date: 15 October 2009
• Docket Number: No. 43S00-0810-CR-575.,43S00-0810-CR-575.
• Citation: 915 N.E.2d 126
• Parties: Ian J. CLARK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

915 N.E.2d 126

Ian J. CLARK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 43S00-0810-CR-575.

Supreme Court of Indiana.

October 15, 2009.

J. Brad Voelz, Warsaw, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SHEPARD, Chief Justice.

A jury found appellant Ian J. Clark guilty of murdering a two-year-old left in his care, and it recommended life in prison without parole, which the trial court imposed. Many of the grounds he urges as reasons for reversal were not preserved at trial. One of his trial objections does pose a novel question: should the trial court have permitted the State to offer into evidence Clark's entry from the social networking website MySpace? We hold that this electronic evidence was admissible, and we affirm Clark's conviction and sentence.

Facts and Procedural History

In May 2007 Ian J. Clark was living in Pierceton with his fiancée Matara Muchowicz and her daughter Samantha. Samantha typically stayed with a friend while Clark and Matara were at work, but Clark had been laid off at some point during the month and in an effort to save money Matara began leaving Samantha with Clark for the day.

When Matara arrived home on May 25th, around 2 p.m., she found Clark lying on the couch with Samantha on his chest, naked and blue. Matara approached the couch and noticed blood on the blanket that was covering up Clark. After being questioned about the blood, Clark sat up and then fell and stumbled into the coffee table, dropping Samantha on the ground. Clark told Matara that Samantha was breathing. Matara tried to wake Samantha, but she was cold. Samantha's head was thrown back and she was gurgling. Matara took Samantha and went to call 911. Clark told Matara to put the phone down and that Samantha was "brain dead" and then lit a cigarette and turned on the television.

Matara dialed 911, but Clark grabbed the phone out of her hand. Clark told Matara there was nothing wrong with Samantha and that she was breathing. He kept telling Matara that Samantha was fine. Matara told Clark they needed to call an ambulance. Clark continued to try to prevent Matara from calling 911. Clark took the phone from Matara and tried to drag her away from the phone. When Matara managed to dial 911 and ask the operator for help, Clark struck Matara in the back of the head with his fist.

Matara managed to make a second call to 911. Matara wanted to learn CPR because Samantha was not breathing. The 911 operators could hear Clark interrupt and disconnect the attempted calls. After completing the 911 call, Matara put a diaper on Samantha and went outside where she met a police officer.

The Kosciusko County sheriff's deputy who had arrived on scene tried to revive Samantha until paramedics arrived. The deputy noticed Samantha suffered a split lip, was limp, her jaw was crushed, and she had bruises all over her body. Paramedics were unable to revive her. They observed that Samantha had bruises all over her body, her right jaw was swollen, black and blue, and she had blood around her mouth, and bruises on her chest area that resembled fingerprints. Later analysis put Samantha's time of death at 11 a.m. to 12 noon.

The officers arrested Clark and transported him to the hospital with blood on his shirt. While waiting in an exam room with police, Clark told a detective that "I will f ...ing kick your ass. I will send the Hell's Angels to kill you. F ... it. It's only a C felony. I can beat this." (Tr. at 90.)

Police discovered diapers, tissues, a blanket, a shelf on the coffee table, a pillow and pajamas all stained red in the home. Police also discovered blood spatters near the sink and red spots near the door in the bathroom. They observed a hole in the bathroom wall, sixty-five inches from the floor, with bloodstains and brown hair embedded in it. (Tr. at 254-55, 258-259.) The blood and hair found in the hole was Samantha's. (Tr. at 258, 262.) The blood on Clark's shirt was Samantha's.

The list of injuries was appalling. Before Samantha's death she suffered multiple contusions, lacerations, abrasions and or deformities to her mouth, ear, chin, forehead, eyes, neck, jaw, shoulders, cheeks, arms, ribs, chest, back, scapula, kidney areas, areas over vital organs, abdomen, arm pits, nipples, temple, nose, lips, wrists, hands, orbits, buttocks, and thigh; her ulna was broken, her wrist was broken, her lung was bruised, her jaw was broken or dislocated; she had a subdural hematoma, intra-abdominal wounds, including a torn colon, an atlanto-occipital dislocation (her head was "ripped off her neck," — the ligaments were disrupted from the spinal column so that only "tissue and skin" held it to the body), and cerebral contusions or bruising of her brain. (Tr. at 160, 279-84, 287, 298, 300, 310, 313, 318-36, 342-44, 356.)

Samantha suffered at least twenty separate injuries, more than one of which would be lethal, and she was still alive when she sustained many of them. An emergency room doctor described Samantha's "fresh" injuries as the worst he had observed in twenty years. (Tr. at 285, 287.) Neither one fall, nor multiple falls, nor multiple household accidents, could possibly have caused Samantha's injuries. The official cause of death was by multiple blunt force injuries and the official manner of death was ruled a homicide.

The State charged Clark with murder. Clark withdrew his voluntary intoxication defense just before trial and withdrew his insanity defense during trial. After the jury found him guilty of murder, the State and Clark stipulated to the single charged aggravator: that the victim was less than twelve years of age. The jury recommended life without the possibility of parole, and the court sentenced Clark accordingly.

We have jurisdiction over this direct appeal under Ind. Appellate Rule 4(A)(1)(a) because a sentence of life without possibility of parole has been imposed under Ind. Code § 35-50-2-9 (2008).

The MySpace Page

It seems that Matara had helped Clark create his own personal entry on MySpace, the social networking website. Clark testified in his own defense, and the prosecutor read to Clark, over defense counsel's objection, his own description of himself:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I'm glad to say I have helped you people in my past who have done something and achieved on the other hand, I'm sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B ... sh.... And with all my obstacles, why the f ... can't you.

(Tr. at 466-68.)

Clark contends the trial court abused its discretion when it admitted evidence of his MySpace posting. (Appellant's Br. at 20-24.) Clark claims this was inadmissible character evidence, citing Indiana Rule of Evidence 404(b), which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan knowledge, identity, or absence of mistake or accident.

(Appellant's Br. at 20-24.) Evidence is excluded under Rule 404(b) when it is introduced to prove the "forbidden inference" of demonstrating the defendant's propensity to commit the charged crime. Camm v. State, 908 N.E.2d 215 (Ind.2009).

Otherwise inadmissible evidence may be admitted where the defendant opens the door to questioning on that evidence. Jackson v. State, 728 N.E.2d 147 (Ind.2000). The door may be opened when the trier of fact has been left with a false or misleading impression of the facts.

We conclude that the trial court properly admitted the evidence of Clark's MySpace page. Clark's posting contained only statements about himself and in reference to himself. (Tr. at 465-469.) Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark's words and not his deeds that were at issue, so Rule 404(b) does not apply.

It is only slightly more difficult to consider whether the MySpace entry was actually probative of any issue at trial. Clark testified that at most Samantha died because he was drunk and he was "reckless." (Tr. at 43132.) Clark made his character a central issue, a reasonable defense strategy presumably aimed at obtaining a jury verdict on the lesser-included offense of reckless homicide. He testified on a number of occasions about his state of mind, suggesting his intent could only have been "reckless" and not criminal:

Clark: I was negligent. I was reckless. I was irresponsible. I was an a ... hole. Sorry but for a lack of a better word, but, yeah. That's what I am, but I'm not an intentional killer. I mean, I don't even know how to explain this, but there's a lot better ways to kill somebody that [sic] doing it like that. You know, there's no attempt to hide the crime. I didn't clean up anything. I didn't change clothes, mens rea. People do certain things when they kill somebody. They try to hide a crime. There's no evidence. No evidence whatsoever that I tried to hide anything. And the cops, they know that. They know that.

(Id.)

State: You say, your conduct is reckless?

Clark: Most definitely. That's what your evidence shows.

(Tr. at 469.)

State: Well, why didn't you pick up the phone and call 911?

Clark: Once again, I was incoherent. It's an issue of coherency. You asked me a question. Can I answer it?

State: Sure, go ahead.

Clark: Thank you sir. I mean, it's more or less common sense for the Jury. Let them figure it out, but the bottom line is your officers, oh, he's not drunk, he's not drunk, and your own tests say I am drunk. It's one of those issues where...