Graham v. State

Decision Date31 July 1985
Docket NumberNo. 2-984A274,2-984A274
Citation480 N.E.2d 981
PartiesHarry W. GRAHAM and Ellen Graham, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee. 1
CourtIndiana Appellate Court

Jerrald A. Crowell, Bowman, Crowell & Teeters, Fort Wayne, for defendants-appellants.

Linley E. Pearson, Atty. Gen. of Ind., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Harry W. Graham and Ellen Graham were each charged with involuntary manslaughter, 2 reckless homicide, 3 and unlawful practice of medicine. 4 Guilty verdicts were returned on all counts. The Delaware Superior Court subsequently entered convictions on the reckless homicide and unlawful practice of medicine counts and sentenced each defendant to two concurrent three year terms and fines of $5,000.00. We affirm.

FACTS

In February or March of 1983 Sybil Bennett developed a lump on one of her breasts. She apparently consulted briefly with a physician concerning the growth. Fearing, however, that she would be forced to undergo a mastectomy, she sought the aid of two members of her church, Harry and Ellen Graham, neither of whom were physicians.

The Grahams are, as was Sybil, devout Seventh Day Adventists. As such, they follow the teachings of Ellen G. White, a prophet of the Seventh Day Adventist Church. Sister White advocated the use of herbs and other natural substances to assist God in healing the infirm. She also exhorted the internal and external application of pure water. Although the church In furtherance of these theories, the Grahams established the "Hoosier Health House" in Delaware County, Indiana. This business catered primarily to those seeking a naturopathic form of health care. The Grahams also sold minerals, vitamins, health food and equipment for processing health food. Additionally, Hoosier Health House offered numerous publications which advocated "natural" cures to various diseases including cancer.

itself does not encourage its members to reject medical care, Ellen White's writings discredit the use of modern drugs.

On June 2, 1983, Sybil went to the Hoosier Health House complaining of pain behind her eyes, a chronic cough, and physical weakness. After a preliminary examination, which included urine and saliva tests, Harry devised a program to treat Sybil's ailments. This program included nutritional supplements, fomentations, 5 enemas, and colonic irrigations. 6 On some days, the Grahams gave Sybil as many as eleven enemas employing coffee, carrot juice, aloe vera, castor oil, or pure water. In spite of these treatments Sybil's health did not improve.

Sometime later, Sybil, who was spending the majority of her time at the Hoosier Health House, showed the Grahams the lesion which had developed on her breast. Ellen, a registered nurse, immediately recognized that Sybil was potentially suffering from breast cancer. At Sybil's request, Harry set up an appointment to see Dr. David D. Goldberg in Dayton, Ohio. 7 After conducting a biopsy, Dr. Goldberg concluded that Sybil was in fact suffering from breast cancer. He prescribed the drug Laetrile for Sybil and instructed Ellen to administer the injections. The Grahams also continued to give Sybil nutritional supplements, enemas, and colonic irrigations.

During Sybil's stay at the Hoosier Health House, her husband Jack often urged her to seek traditional medical care. Sybil, however, refused to entertain this prospect despite her deteriorating condition. On several occasions, when Jack made his pleas for Sybil to accept conventional treatment, Ellen told Sybil that "they would just cut you up." Record at 375.

Despite the Graham's multifarious efforts, Sybil's physical condition continued to decline. Finally, on August 24, 1983, Jack Bennett and a family friend, Gail Heiland, took Sybil to see Dr. Robert Suer. Sybil was so weak by this time that Dr. Suer had to examine her in the backseat of the Bennett's automobile. He found that Sybil was having respiratory distress and was slipping in and out of consciousness. Dr. Suer had Jack rush Sybil to Ball Memorial Hospital.

When she arrived at the hospital, Sybil was immediately placed on a respirator. Initially, she was treated for heart failure, 8 lung cancer, sepsis and the breast cancer which by this time had metastatized to the lung. Sybil also suffered from a lack of oxygen in her blood, pulmonary edema, and an electrolyte imbalance. It was clear to her attending physicians that Sybil's only chance for survival was chemotherapy. However, because of Sybil's critically weakened physical condition, her doctors determined that she could not survive the administration of these potent drugs. Therefore, they were forced to let the cancer run its course.

On September 11, 1983, Sybil Bennett died. The immediate cause of death was respiratory failure. This was, of course, occassioned by the untreated breast cancer

and promoted by her weak state of health. Subsequently, the Grahams were charged in connection with Sybil's death.

ISSUES

On appeal, the Grahams raise eight issues for our consideration. Rephrased and reordered, those issues are:

1. Whether the search warrant authorizing the search of the Hoosier Health House and the Grahams' residence was valid.

2. Whether the trial court erred when it refused to sever the charges.

3. Whether the definition of the practice of medicine contained in Indiana Code section 25-22.5-1-1.1(a) (Burns 1982) is unconstitutionally vague.

4. Whether the trial court correctly instructed the jury on reckless homicide and involuntary manslaughter.

5. Whether the trial court erred in refusing to give several of the Grahams' tendered instructions.

6. Whether the trial court admitted evidence at variance from the charges.

7. Whether the trial court committed reversible error when it admitted certain evidence which the Grahams now contend was irrelevant and unduly prejudicial.

8. Whether the Grahams' convictions are supported by sufficient evidence.

DISCUSSION AND DECISION
Issue One

During the course of the investigation into Sybil Bennett's death, a search warrant was issued authorizing a search of the Grahams' home and the Hoosier Health House. That warrant was based, to a certain degree, on the hearsay statements of Jack Bennett and Gail Heiland. 9 The defendants now assert that there was no testimony establishing either the hearsay declarants' credibility or a factual basis for the information they provided. Consequently, the Grahams opine that the trial court erred in overruling their motion to suppress and in subsequently admitting into evidence items seized pursuant to the search warrant.

The issuance of search warrants in Indiana is controlled largely by statute. At the time of the probable cause hearing at issue here, Indiana Code section 35-33-5-2(a) provided, in relevant part, that "[w]hen based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished." Such information is also required when a judicial hearing is used in lieu of an affidavit. Indiana Code section 35-33-5-2(c).

Contrary to the Grahams' arguments, the requirements of the statute were met here. The facts introduced at the probable cause hearing established the credibility of Jack Bennett and Gail Heiland. They were not paid informants. Rather, they were cooperative citizens aiding an ongoing criminal investigation of conduct they had witnessed. Pawloski v. State (1978), 269 Ind. 350, 354, 380 N.E.2d 1230, 1232 (examining the significance of this distinction). The credibility of these informants was, under the circumstances, sufficiently established. See Baker v. State (1983), Ind., 449 N.E.2d 1085, 1091; Wells v. State (1979), Ind.App., 397 N.E.2d 1250, 1257, trans. denied; 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment Sec. 3.4(a) (1978) [hereinafter cited as 1 W. LaFave]. Evidence presented at the hearing also established that there was a factual basis for the information provided by Jack and Gail. They had been at the Hoosier Health House and witnessed some of the conduct which was being investigated. This was sufficient to establish that the hearsay informants, Jack and Gail, were speaking from first-hand knowledge. That is all that is required. 1 W. LaFave, supra, at Sec. 3.4(b). Consequently, the search warrant was valid and the trial court did not err in admitting evidence discovered during the execution of that warrant.

Issue Two

The Grahams next maintain that the trial court erred when it denied their motion to sever the charges. In making such a determination, the trial court is guided by statute. Indiana Code section 35-34-1-11(a) (Burns Supp.1984) states:

"(a) Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering:

(1) the number of offenses charged;

(2) the complexity of the evidence to be offered; and

(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense."

Consequently, when two or more charges are joined for trial solely on the ground that they are of the same or similar character, the defendant may demand severance. In all other cases, however, the severance determination is firmly committed to the trial court's discretion. Eubank v. State (1983), Ind., 456 N.E.2d 1012, 1017; Willard v. State ...

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