Gentry v. State

• Citation: 625 N.E.2d 1268
• Decision Date: 16 December 1993
• Docket Number: No. 22A01-9206-CR-195,22A01-9206-CR-195
• Parties: David GENTRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1268

625 N.E.2d 1268

David GENTRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 22A01-9206-CR-195.

Court of Appeals of Indiana,

First District.

Dec. 16, 1993.

Rehearing Denied Jan. 13, 1994.

Transfer Denied March 18, 1994.

Steven A. Gustafson, Fox & Cotner, New Albany, for appellant-defendant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

BAKER, Judge.

Today we decide whether a person who performs an act which causes the death of another person while the other person is suffering from the effects of an attempted suicide by other means commits murder. Appellant-defendant David Gentry appeals his conviction for Murder, a felony. ¹

ISSUES

Gentry raises several issues for our review:

1. Whether he was improperly charged with murder.

2. Whether he had legal authority to cause his mother's death.

3. Whether his diaries and journals were improperly admitted into evidence.

4. Whether the trial court improperly instructed the jury on erroneous acquittal.

5. Whether Gentry received inadequate assistance of counsel.

FACTS

Since 1989, Gentry has lived with his fifty-eight-year old mother, Nadine Gentry, in her house in New Albany, Indiana. Gentry helped care for Nadine who suffered from multiple sclerosis and a benign brain tumor and who was confined to a wheelchair or scooter.

When Gentry returned home from work on May 2, 1991, he found a "gone fishing" sign in his mother's handwriting in the front door to the house. Upon entering the house, Gentry peeked into the living room from the doorway and saw Nadine apparently asleep on the couch. Gentry did not enter the living room and eventually left the house around 6:15 p.m. to go to a Boy Scout meeting. When he returned home around 9:00 p.m., Gentry discovered Nadine still lying on the couch. This time Gentry asked his mother if she was alright. Nadine had difficulty speaking, but mumbled something that sounded like "hurt" and "leave."

Gentry discovered a note from his mother to him and Mr. Duvall on Nadine's scooter. The note was handwritten on the back of a photocopy of a newspaper article on euthanasia, the obituary of Nadine's late husband, and a photocopy consisting of Nadine's letter to the newspaper editor relating how weeks earlier she had told hospital officials to remove a mechanical ventilator which kept her husband alive. Nadine's note stated that Gentry and Duvall should not hastily throw away her things as they may be necessary and worthwhile to others and that this may insult the "self concept" of the many people who have been so kind to her but that she will be with her husband. Gentry assumed the note meant that Nadine was attempting to end her life.

After reading the note, Gentry checked the bathroom cabinet to see if a bottle of pills was still there. ² Because Gentry could not find the pills, he assumed Nadine had ingested them to end her life. Gentry asked Nadine if she needed anything, but her answers were too incoherent to understand.

At approximately 11:00 p.m., Gentry put a blanket over Nadine's head and then went to bed. When Gentry checked on Nadine about 5:00 a.m., her breathing was shallow, she was unable to open her eyes, and she was still incoherent. This time Gentry covered Nadine's head and face with pillows before returning to his bedroom. Awhile later Gentry returned to the living room to check on Nadine. She was still alive. Gentry paced the floor for about an hour trying to decide whether to call an ambulance to save her or to complete what he believed was an attempted suicide.

Gentry decided to end his mother's life for her. He held his mother's hand then pressed the pillows down over her face. Gentry held the pillows over his mother's face until he determined she was no longer breathing.

That morning at 7:47 a.m., Gentry called emergency personnel. When emergency medical technicians (EMTs) from the New Albany Fire Department arrived at the Gentry home, they discovered Nadine brain dead, lying on her back on the living room couch. ³ Gentry gave EMT Brian Gadd some papers which Gadd gave to the police officers who had arrived. These papers included a photocopy of the newspaper articles on the back of which Nadine had handwritten the note to Gentry and Duvall.

Police Detective Clark Jeffries was called to investigate Nadine's death. Detective Jeffries found a mouth print on one bloody pillow and a bloody bite mark on another pillow. He also observed that Nadine's face had deep indentations around the bridge of her nose where her glasses were Detective Jeffries informed Gentry of his rights, after which Gentry told him that his mother had smothered herself with a pillow. When Detective Jeffries stated that his claim was impossible, Gentry claimed his mother had probably overdosed. Gentry and Detective Jeffries then searched for pill bottles but found none. Next, Detective Jeffries asked Gentry for some samples of his handwriting in order to substantiate that Nadine actually wrote the note which was handwritten on the back of the photocopy and signed Nadine Winkelried G. Gentry was calm and very cooperative. He took Detective Jeffries into his bedroom and voluntarily gave Detective Jeffries several personal notebooks including a book titled "Dave's Book of Rhyme," "Annales Nugatorum," and a letter to a friend to aid the police in their investigation.

and her hands were crossed midway to her body, clutching a blanket.

On May 3, 1991, Detective Charles Miller advised Gentry of his rights again. Gentry signed an Advice of Rights-Interrogation form and then voluntarily tape recorded his statement of what actually happened. Gentry told the police and later testified that he placed the pillows over his mother's head while she lay incoherent on the couch, applied pressure to the pillows to prevent her from being able to breathe, and held the pillows in place until he was sure his mother was no longer breathing. That same day Gentry was arrested and charged by information with knowingly killing his mother.

Floyd County Deputy Coroner John Dougherty, whom police called to the scene, determined that the blood markings on Nadine's face indicated that the pillow had been placed over her mouth twice and that there was some type of trauma to her face. Dougherty ordered a complete postmortem examination, which was performed by forensic pathologist Tracey Corey, M.D. Dr. Corey agreed that Nadine suffered some trauma to her face before she was suffocated to death.

Dr. Corey found the drug Mellaril present in Nadine's blood at a level above the therapeutic or beneficial concentration. However, Dr. Corey determined that Nadine could have survived the Mellaril level and that she did not die from Mellaril, but from suffocation. Dr. Corey also determined that Nadine was well developed, well nourished, suffered from multiple sclerosis, had a benign meningioma in her brain, but that she was not suffering from any immediate life threatening diseases.

At Gentry's three-day trial he testified that he suffocated his mother to death. The jury found Gentry guilty of murder and the trial judge sentenced him to the minimum 30 year sentence. Gentry appeals his conviction.

DISCUSSION AND DECISION

I. Murder

Gentry contends that the murder statute, I.C. 35-42-1-1, does not apply to his conduct of simply assisting his mother Nadine in voluntarily committing suicide. Specifically, Gentry claims that because Nadine had voluntarily taken an overdose of pills in an attempt to end her life that his helping her end her life by suffocating her with a pillow is not murder.

Gentry further argues that his conduct did not even constitute the lesser crime of causing suicide, ⁴ a class B felony, because he did not cause his mother's suicide by force, duress, or deception. Gentry claims that he merely assisted his mother in her voluntary suicide attempt and that the Indiana legislature had not chosen to make assisting suicide a crime. ⁵

I.C. 35-42-1-1 provides:

A person who:

(1) knowingly or intentionally kills another human being ...

commits murder, a felony.

IND.CODE 35-42-1-2 provides:

A person who intentionally causes another human being, by force, duress, or deception, to commit suicide commits causing suicide, a Class B felony.

Gentry misses the critical distinction between murder and causing suicide or assisting suicide. Murder requires that the defendant knowingly or intentionally perform the act which leads to the death of another human being. Causing or assisting suicide requires only that the defendant cause or assist another human being in taking his own life. Thus, to be subject to prosecution for causing suicide, a defendant need only cause--by force, duress, or deception--another human being to perform the act by which the other person himself commits suicide. To be subject to prosecution for assisting suicide, a defendant need only provide the physical means or participate in the physical act by which the other person himself commits suicide. To be subject to prosecution for murder, the defendant must knowingly perform the specific act which kills the other person.

Here, the undisputed facts are that Gentry placed pillows over his mother's head and face, applied pressure to the pillows to prevent his mother from being able to breath, and held the pillows in place until his mother had suffocated to death. Even assuming that Nadine had attempted to commit suicide through a drug overdose, the undisputed fact is that Gentry knowingly and intentionally committed the act of suffocation which caused his mother's death.

Gentry did not by force, duress, or deception cause his mother to commit suicide, rather he actually performed the act which caused her death. Gentry did not merely assist his mother in committing suicide by simply providing the physical means by which she attempted suicide or by participating in Nadine's ingestion of pills, rather Gentry...