Gibson v. State

• Decision Date: 13 November 1987
• Docket Number: No. 82S00-8607-CR-00624,82S00-8607-CR-00624
• Citation: 515 N.E.2d 492
• Parties: James E. GIBSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 492

515 N.E.2d 492

James E. GIBSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 82S00-8607-CR-00624.

Supreme Court of Indiana.

Nov. 13, 1987.

Terry A. White, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant James E. Gibson was convicted of Murder and Battery, a class B misdemeanor, as an included offense of Child Molesting. The trial court found the aggravating circumstances outweighed the mitigating circumstance that Gibson had no prior record of violence. The aggravating circumstances included that the victim was a helpless two-year old child; Gibson admitted inflicting 20 blows to the head and body of the victim over a thirty-day period; Gibson admitted he knocked the victim against the door frame; and the victim died as a result of blows to the head. Gibson was sentenced to consecutive terms of fifty (50) years and six months, respectively.

Gibson here directly appeals, raising the following issues for our review: (1) admissibility of Gibson's incriminating statements, (2) whether jurors, who stated they would wonder why a defendant does not testify, should have been stricken for cause, (3) whether the victim's dying of a staph infection was an extraordinary intervening cause that relieves Gibson of responsibility for her death, (4) whether the evidence was sufficient to prove Gibson knowingly killed the victim, and (5) whether the evidence was sufficient to prove Gibson was guilty of battery.

Gibson began living with Julie Taylor and her two year old daughter, Jolie, in December of 1984. Gibson is not the child's natural father. He babysat with Jolie while her mother worked. Two weeks after the couple started living together, Ms. Taylor noticed bruises on her daughter. She noticed the child had a black eye when Gibson and Jolie picked her up from work one Saturday. When questioned as to what happened to Jolie, Gibson stated he had thrown her up in the air playing with her and accidentally dropped her. The next day, friends inquired about the bruising around the victim's eyes and Gibson told them a little boy had hit Jolie with a toy truck.

On the morning of January 24, while Ms. Taylor remained in bed, Gibson attempted to dress Jolie. She pulled away and Gibson shoved her. Jolie hit her head against the side of the coffee table. Ms. Taylor got up when she heard Jolie crying and found the child sitting on Gibson's knee on the living room couch. Jolie passed in and out of consciousness, spoke a few words, and then passed out completely. Gibson and Ms. Taylor rushed Jolie to the hospital. Jolie entered the hospital in serious condition with head injuries which required brain surgery. In addition to her head injuries, Jolie's vaginal opening was larger than expected for a child her age and she had a bruise around her anal opening. Jolie died on February 10, 1985, of a staph infection she incurred while recovering from brain surgery.

When originally questioned about Jolie's condition, Gibson claimed she had been hurt by another child. Eventually, Gibson gave a statement to the police in which he admitted he had hit and kicked the child several times.

The State first points out that there has been no ruling on the Motion to Correct Errors and thus, this appeal should be dismissed. However, in the event a court fails to rule on a motion to correct error within forty-five days after filing, if no hearing is required, upon application of any interested party, the pending motion to correct error may be deemed denied. Ind.R.Tr.P. 53.3(A). Thus, we deem the Motion to Correct Errors denied.

A motion to correct errors must be filed within 60 days of sentencing. Ind.R.Tr.P. 59(C); Ind.R.Crim.P.R. 16. The Record of the Proceedings shows Gibson was sentenced on November 21, 1985. He filed his Motion to Correct Errors on January 21, 1986. Both the State and Gibson state that "Due to an intervening holiday, Gibson's Motion to Correct Errors was filed on the final day of the sixty day time period." Gibson filed his Amended Motion to Correct Errors on February 28, 1986. The State further argues the amended motion, on which Gibson bases his arguments, was a nullity because it was not timely filed. Amendments to a motion to correct errors may be filed before ruling. However, the trial judge has no jurisdiction to accept amendments after the 60 day time limit has elapsed. Matter of Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 779-80.

Gibson asserts he raises no new issues in his Amended Motion to Correct Errors and that the amended motion does nothing more than augment and more particularly specify issues 1(a) and 1(h). We feel the preferred procedure in this case is to consider the case on its merits since the State did not object to the filing of the Amended Motion to Correct Errors at the time of its filing and has fully briefed the issues. Thus, so as not to defeat an otherwise meritorious appeal we address the issues as raised.

I.

Gibson first asserts the trial court erred in admitting into evidence statements he made to the police. He claims he was under the influence of Valium at the time. He further asserts his statements were the result of coercion and undue influence because the police got eight to ten inches from his face, yelled and cursed at him during a three and one-half hour interrogation, and accused him of lying.

Admissibility of a statement is determined by whether, based on the totality of the circumstances, it was made voluntarily. The circumstances to be considered include whether the confession was freely self-determined, the product of a rational intellect and free will, without compulsion or inducement of any sort. Johansen v. State (1986), Ind., 499 N.E.2d 1128, 1130; Murphy v. State (1977), 267 Ind. 184, 190, 369 N.E.2d 411, 415. The State has the burden of showing beyond a reasonable doubt that the defendant voluntarily and intelligently waived his rights. Johansen, 499 N.E.2d at 1130. In reviewing the admissibility of an incriminating statement, this Court examines only the evidence and reasonable inferences therefrom which are favorable to the trial court's ruling, together with any uncontradicting adverse evidence, and if, from that viewpoint, there is substantial evidence to support the trial court's ruling, it will not be disturbed. Id.

The evidence here supports the trial court's ruling that Gibson's statements were admissible. Gibson asserts he was under the influence of Valium when he made his statements which affected the voluntariness of those statements. When a defendant challenges the voluntariness of his statement based on his allegation that he was intoxicated when he made his statement, he has the burden to introduce evidence to establish that the amount and nature of the intoxicants would produce an involuntary statement. Wiseheart v. State (1986), Ind., 491 N.E.2d 985, 992. The only evidence presented that Gibson had taken any drugs was his testimony that he had taken Valium on January 24 and 25. Since Gibson did not take the drug in the presence of the officers, the officers could not have been aware of the drug usage unless it manifested itself by affecting Gibson's behavior. Detective Bumpus, however, testified that Gibson did not appear to be intoxicated or under the influence of any drug. Thus, Gibson's evidence of drug usage at most presented a conflict that was insufficient to indicate that Gibson's drug consumption resulted in an involuntary statement.

Gibson argues further that his statements were coerced because detectives harassed and threatened him. Gibson testified that both Detective Bumpus and Detective Erk cursed him, that Detective Bumpus got close to his face and stated he was going to see that Gibson burned, and that he was afraid of both detectives.

The testimony of the two detectives, however, conflicts. At the first suppression hearing, the detectives testified that on January 25, Gibson was advised of his rights, signed a waiver, and was then questioned. Detective Erk provided Gibson with a soft drink. Both detectives testified that no threats or promises were made nor was Gibson physically touched. Gibson never requested an attorney, nor did he request the detectives to cease questioning. Detective Bumpus testified that at one point he informed Gibson that if the child died it was possible he might face the death penalty. Detective Bumpus also testified that he did yell at Gibson, that he was close to Gibson's face and that at one time he did use profanity and call Gibson a liar. Detective Erk observed that at the time Detective Bumpus cursed at Gibson, Gibson was calm and did not appear to be afraid of the officers. The detectives dispute Gibson's claim of three and one-half hours of yelling and cursing.

At trial, the testimony of the detectives was essentially the same regarding the circumstances surrounding the giving of Gibson's statements. Moreover, the rights waiver forms signed by Gibson were introduced into evidence. Detective Erk testified he believed Gibson wanted to confess but wanted the officers to push him because he was having trouble bringing it out on his own.

Thus, the trial court was justified in finding the evidence presented at trial showed that Gibson's incriminating statements were voluntary. Gibson claims the record is replete with abusive police interrogation and that he simply gave up after hours of grilling. However, there was ample evidence to indicate the detective's conduct did not overcome Gibson's free will. Gibson was fully cognizant of his rights, he was not physically abused or threatened, no promises were made, and Gibson appeared calm and unafraid. Therefore, the trial court properly admitted the statements.

II.

Gibson next claims the trial court erred...