Gasaway v. State, 82A04-8904-CR-134

• Decision Date: 27 December 1989
• Docket Number: No. 82A04-8904-CR-134,82A04-8904-CR-134
• Citation: 547 N.E.2d 898
• Parties: Kathy J. GASAWAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 898

547 N.E.2d 898

Kathy J. GASAWAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 82A04-8904-CR-134.

Court of Appeals of Indiana,

Fourth District.

Dec. 27, 1989.

Rehearing Denied Feb. 6, 1990.

David M. Shaw, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Defendant-Appellant Kathy K. Gasaway (Gasaway) appeals her conviction for Involuntary Manslaughter, a class C felony, IND.CODE 35-42-1-4, and Neglect of a Dependent, a class B felony, IND.CODE 35-46-1-4.

We affirm.

Gasaway presents four issues for our review, which we restate as:

1. whether the trial court erred in denying Gasaway's motion to dismiss newly filed Count III;

2. whether the prosecutor's alleged misstatements of fact and use of a poem coordinated with autopsy slides warranted a mistrial;

3. whether the prosecutor's misstatement of the law warranted a mistrial; and

4. whether convictions for both involuntary manslaughter and neglect of a dependent were improper.

In the summer of 1987, Gasaway separated from her husband. She and her thirteen month old child, Christopher, moved in with Chavez Fischer and his son. On July 10, 1987, Gasaway brought Christopher into the emergency room of Welborn Hospital, stating he had been injured in a fall. Hospital personnel noted Christopher was not breathing and had no pulse. Efforts to resuscitate him were unsuccessful.

Christopher had numerous injuries. He had nine broken ribs, which were at least a week old, severe trauma to his head, limbs, and abdomen, and several internal injuries. Some of the bruises indicated application of force by a cylindrical object. He also had severe burn marks on his back indicating the possibility that an instrument like a hot iron had been used on him. A pathologist testified some injuries were up to seven to ten days old while others were more recent. It was the pathologist's opinion a combination of recent injuries caused Christopher's death.

On July 14, 1987, an information was filed which charged Gasaway with Count I, Murder and Count II, Neglect of a Dependent. Count I alleged Gasaway committed murder "by striking at and against the body of the said Christopher L. Gasaway thereby causing him to die, all in violation of I.C. 35-42-1-1." (R. 8). Count II alleged Gasaway "did knowingly place a dependent child ... in a situation that endangered his life and health ... which resulted in serious bodily injury to the said Christopher L. Gasaway, all in violation of I.C. 35-46-1-4." (R. 9). An initial hearing was held on July 15, 1987, and an omnibus date was set for September 25, 1987.

On September 11, 1987, Gasaway filed a motion to dismiss Count II pursuant to IND.CODE 35-34-1-4(a)(4), which allows dismissal when "[t]he indictment or information does not state the offense with sufficient certainty." Gasaway's motion "pray[ed] that Count II be dismissed or, alternatively, the Court grant leave to the prosecutor to amend pursuant to I.C. 35-4-1-4(d) and (e)." (R. 19). On September 30, 1987, the trial court granted Gasaway's motion and gave the State until October 12 1987, to amend the information. On October 12, the State filed Count III, Murder, stating Gasaway "did knowingly kill Christopher Gasaway ... by knowingly placing a dependent child ... in a situation that endangered his life and health ... which failure resulted in his death." (R. 24).

Gasaway filed a motion to dismiss Count III, but the motion was denied. During the trial, however, the trial court partially sustained the motion to dismiss Count III, stating:

The Court now finds as that charge is constituted and worded, that it in effect, constitutes a charge of Neglect of a Child [sic], a Class B felony. The Court therefore sustains the motion to that degree, so that the information will consist of Count A, a charge of murder as set out in the charging information, and Count B, a charge of Neglect of a Child [sic], a Class B Felony....

(R. 378).

Gasaway contends the trial court erred in allowing the amendment because IND.CODE 35-34-1-5(b) only allows an amendment of substance at any time up to thirty days before the omnibus date. Gasaway points out that the omnibus date was September 25, 1987, and Count III was not filed until October 12, 1987, well after the statutory deadline. However, we note Gasaway's motion to dismiss Count II, which precipitated the amendment, was itself filed well past the deadline of IND.CODE 35-34-1-4(b), which states a motion to dismiss must be made no later than twenty days prior to the omnibus date.

The deadline of I.C. 35-34-1-5(b) was unattainable because of Gasaway's tardy motion to dismiss. Gasaway expressly consented to, and requested in its motion, the very procedure followed by the trial court and the State. Furthermore, the allowance of the amendment was not outcome determinative. Before the amendment was filed, Gasaway was charged with one count of murder and one count of neglect. After the amendment was filed and the motion to dismiss was partially sustained, Gasaway was still charged with one count of murder and one count of neglect, albeit a better defined count of neglect. Thus, the trial court's error in allowing the belated amendment, as a result of its error in allowing Gasaway's belated motion to dismiss, did not prejudice any of Gasaway's substantial rights. We cannot reverse absent prejudicial error. Sharp v. State (1989), Ind., 534 N.E.2d 708, 714. See also Kindred v. State (1989), Ind., 540 N.E.2d 1161, 1170. (Court does not need to address untimeliness of amendment when defendant has not demonstrated sufficient harm).

Gasaway also argues certain alleged misstatements of fact in the prosecutor's opening statement and final argument warrant the grant of her motion for mistrial. The record reveals that although Gasaway made motions for mistrial at the close of each, she made no objection to the alleged misstatements when they were made. Failure to make timely objections constitutes waiver of error. Sutton v. State (1986), Ind.App., 495 N.E.2d 253, 259, reh. denied, trans. denied.

Gasaway next contends the trial court erred in denying her motion for mistrial regarding the prosecutor's recitation of a poem, coordinated with the showing of autopsy slides, during final argument. Gasaway argues the prosecutor's argument was misconduct and she was placed in grave peril because the argument was an attempt to inflame the passions and prejudices of the jury. The trial record reveals the following exchange:

[PROSECUTOR, MR. ZOSS:] I just ask you, and I'll alert Mr. Shaw to the fact that I'm going to use the slides. I'll use five more minutes of my closing argument. I would just like you to listen to his [sic], if you could:

Christopher Gasaway has died;

Yes, little Chris is dead.

Burned and beaten

[State's Exhibit No. 29, (a slide of the deceased's face), is shown to the jury.]

MR. SHAW: Your Honor, I'm going to object to a poetry reading. I think that is blatant appeal to the....

THE COURT: Counsel approach the bench, please.

MR. SHAW: Would you show that the defendant objects to Mr. Zoss' improper attempt to appeal to the passions and prejudices of the jury.

THE COURT: Show the objection overruled. Continue please.

MR. ZOSS: Thank you.

(SIDE BAR DISCUSSION IS HELD, UPON CONCLUSION OF THE SAME, THE RECORD IS RESUMED.)

CLOSING ARGUMENT BY MR. ZOSS, DEPUTY PROSECUTION ATTORNEY CONTINUES:

Christopher Gasaway has died;

yes, little Chris is dead.

Burned and beaten, literally,

from the soles of his feet, to the top of his head.

Pursuing one man while, yet married to another;

Kathy, lying to everyone; her husband, her sisters, her brother.

When faced with devastation, running from old and rejected by new.

She struck out in rage;

angry red turned to black and blue.

Murdered by mommy, who was entrusted to care,

but no one said his life would be long or his death would be fair.

Christopher Gasaway has died;

yes, little Chris is dead.

But no matter, she can always have more.

[During the poem, 10 or 11 autopsy slides were shown to the jury, which included State's Exhibit Nos. 29, 19, 4, 1, 5, 8, 12, 13, and 14.]

HEARING HELD OUTSIDE THE PRESENCE OF THE JURY:

MOTION FOR MISTRIAL BY COUNSEL FOR THE DEFENDANT BEGINS:

MR. SHAW: The defendant moves for a mistrial based upon the prosecutor's poem and slide presentation, which was a blatant appeal to the emotions, prejudices and passions of the jury.

THE COURT: Motion overruled.

(R. 490-497).

The trial judge who initially rules on a motion for mistrial is in a more advantageous position than a reviewing court to determine the impact of allegedly inflammatory or prejudicial statements. The trial court is therefore given significant discretion in its ruling. Stacker v. State (1976), 264 Ind. 692, 348 N.E.2d 648, 651.

We note Gasaway's objection was directed to the reading of the poem and not the showing of the slide presentation. The motion for mistrial was directed to both the poem and the slide presentation. Under the reasoning of Sutton, supra, failure to object to the slides at the time they were shown waives any error by the trial court in allowing them. However, because of the importance of considering the possible prejudicial effect of the poem within its context, we will not ignore the fact the reading of the poem was coordinated with the showing of the slides.

Our supreme court has held the procedure for deciding a claim of prosecutorial misconduct consists of two steps. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843, 848. First, the court must determine whether the prosecutor in fact engaged in misconduct. Determination is made by reference to case law and the disciplinary rules of the Code of Professional Responsibility. Then, the court must consider whether the misconduct, under all circumstances, placed the defendant in a position of grave...