Hall v. State
| Decision Date | 30 September 2003 |
| Docket Number | No. 27A02-0207-CR-538.,27A02-0207-CR-538. |
| Parties | Virgil HALL, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Mark Small, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Virgil Hall III ("Hall") was convicted of murder, a felony,1 and neglect of a dependent resulting in serious bodily injury, as a Class D felony,2 in Grant Circuit Court. Hall was sentenced to sixty-five years executed in the Department of Correction for murder and three years for neglect of a dependent resulting in serious bodily injury, with the sentences to run concurrently. Hall appeals, raising the following restated issues:
I. Whether the trial court abused its discretion when it denied Hall's Motion to Correct Error;
II. Whether the trial court abused its discretion when it limited Hall's cross-examination of the victim's mother;
III. Whether the trial court abused its discretion when it excluded testimony of Hall's medical expert;
IV. Whether the trial court abused its discretion when it denied Hall's Motion for a Mistrial; and,
V. Whether the trial court erred when it denied Hall's Verified Motion for the Appointment of a Special Prosecutor.
Concluding that Hall has failed to meet his burden under these theories, we affirm.
In December of 1999, Hall married Kelli Fetterhoff ("Fetterhoff"), the mother of three-year-old Peyton Fetterhoff ("Peyton") and five-year-old Hunter Fetterhoff ("Hunter"). Four months thereafter, Hall and Fetterhoff had a son, Devon Hall ("Devon").
On the morning of May 25, 2000, Fetterhoff went into town to run errands with Devon, while Hall stayed home to do lawn work and watch over Peyton and Hunter. At 11:04 a.m., Hall called Ted Flannigan, the deputy chief of the Mill Township Fire Department, and asked for assistance because Peyton "fell off a swing." Tr. p. 234. When Ted Flannigan arrived, he was immediately concerned that Peyton's situation was serious and told Hall to call an ambulance. Tr. pp. 244-45. Hall called an ambulance and informed the dispatcher that his child fell off a swing. Tr. p. 168. Peyton was transported to Marion General Hospital, where he was examined by Dr. Jeffrey Yablong ("Dr. Yablong"). Hall also advised Dr. Yablong that Peyton fell off a swing. Tr. p. 288. Dr. Yablong observed that Peyton had a number of obvious and severe injuries; Peyton was non-responsive to commands, lethargic, had a fracture on his skull, a large amount of swelling, noticeable injuries to his torso, and deviated eyes.
Due to the severity of Peyton's injuries, he was taken by helicopter to Riley Hospital in Indianapolis. Peyton's condition was critical when he arrived; he was not moving and had low blood pressure and a high heart rate. Peyton eventually died because his brain became so swollen that its blood supply was cut-off.
Dr. Dean Hawley ("Dr. Hawley") performed Peyton's autopsy. Peyton's autopsy revealed that he had suffered at least three separate injuries to his head, one on each side and one on the back. Tr. p. 664. The autopsy also revealed that Peyton had a laceration to the ligament that holds his head to his cervical spine, a severe injury to his chest, another injury to his abdomen, and yet another severe injury to his scrotum. Tr. p. 356.
On June 5, 2000, Hall was charged by information with murder, a felony. On December 29, 2000, the State added a neglect of a dependent resulting in serious bodily injury, as a Class B felony, count to Hall's charging information.
While Hall awaited trial, he was incarcerated in the Grant County Jail. During Hall's incarceration, the Gas City Police Department sought and received permission from Chief Deputy Prosecutor Jim Luttrell ("Luttrell") to intercept Hall's phone conversations. When Luttrell authorized this interception, he believed that the jail had the practice of notifying inmates during booking that their phone conversations were subject to being recorded; however, after Hall's phone conversations already had been recorded, jail officials and Luttrell learned that this notification procedure was not in place when Hall was booked. Tr. pp. 28-29, 34-35.
As a consequence of the unauthorized interception of his phone conversations, Hall commenced civil proceedings against those responsible, including Luttrell, and filed a verified motion for the appointment of a special prosecutor. The trial court denied Hall's motion, but prudently suppressed all evidence obtained as a result of the interception of Hall's phone conversations.
Before trial, the State filed a motion in limine, seeking to exclude alleged testimony indicating that Fetterhoff struck Peyton in the head on the morning of his death. The trial court granted this motion.
Jury trial began on February 6, 2001. During trial, the State objected to a portion of the testimony offered by Hall's medical expert, Dr. Lawson Bernstein ("Dr. Bernstein"). The trial court excused the jury and held an evidentiary hearing on the admissibility of Dr. Bernstein's testimony. After the hearing, the trial court held Dr. Bernstein's testimony inadmissible because of his limited expertise. Tr. pp. 1340-44.
At trial, Hall recanted his initial explanation of Peyton's injuries. Hall testified that he had placed Peyton on a workbench and, while he was using his electric weed eater, pulled on the weed eater's extension cord to unloosen a kink in the cord. Tr. pp. 923-26. Hall stated that as he pulled on the cord, he accidentally struck Peyton, who was sitting behind him, knocking Peyton off the bench, and causing Peyton to hit a dog cage before hitting the floor. Tr. p. 926. Hall claimed the reason he told doctors and emergency personnel Peyton fell off a swing was because he was afraid people would feel he was not a responsible parent if the truth were known. Tr. pp. 937-47.
During trial, the State produced evidence from several doctors that indicated Peyton's injuries were inconsistent with those caused from falling off a swing. Tr. pp. 292, 337-38, 763. Also, Dr. Tres Scherer ("Dr. Scherer"), a pediatric surgeon who examined Peyton at Riley Hospital, testified that (1) Peyton's injuries were similar to those caused by intentional trauma, (2) a fall from a table, then to another object, and then to the floor would not be capable of causing Peyton's injuries, and (3) Peyton's injuries were consistent with having been inflicted contemporaneously on the morning of the day he was treated at Riley Hospital. Tr. pp. 340, 343, 361.
Dr. Thomas G. Luerssen ("Dr. Luerssen"), a pediatric neurosurgeon who also examined Peyton at Riley Hospital, testified that a fall of five or six feet may be able to fracture a child's skull but would not be capable of harming a child's brain and only a fall from an extreme height— one to two stories—could have caused the type of brain injury Peyton received. Tr. pp. 424-25, 435.
Dr. Hawley, who performed Peyton's autopsy, testified that injuries similar to Peyton's laceration of the ligament that holds his head to his cervical spine typically occur when the head is thrown violently forward and Peyton's injuries to his chest, abdomen, and scrotum were consistent with those caused by punches or kicks. Tr. pp. 658, 665, 679, 681.
Hall called a photogrammetry expert to testify about the width of the bars on the dog cage that Peyton allegedly hit as he allegedly was falling from the workbench. This expert testified that the width of the injuries on Peyton's head were consistent with the width of the bars on the dog cage. Tr. pp. 1072, 1171. The following exchange, concerning this testimony, occurred during Luttrell's closing rebuttal argument:
State: Oh, and by the way, these posts that are three-eighths of an inch wide. Hmmm. Well ...
Hall: Your Honor. We'll object ... [the] witness has already testified to [the] measurements ... we demand a mistrial. He cannot testify.
Court: Overruled. This is not testimony; it's final argument.
State: Don't they have the same measurements in Canada? Isn't an eighth of an inch the same here as it is in Canada?
Tr. pp. 1502-03 (emphasis added).
The jury found Hall guilty of murder, a felony, and neglect of a dependent resulting in serious bodily injury, as a Class B felony. The trial court sentenced Hall to sixty-five years in the Department of Correction for murder, a felony, and three years for neglect of a dependent, as a Class D felony, with the sentences to run concurrently.
On April 5, 2001, Hall filed a motion to correct error. An affidavit was attached to this motion alleging jury misconduct. The affidavit specified that during trial juror David Daniels ("Daniels") told alternate juror Gary Hopkins ("Hopkins") that Daniels' stepson was incarcerated with Hall and believed Hall to be innocent. Appellant's Supp. App. pp. 302-03. At a later stage of trial, Daniels' stepson and the other inmates changed their opinion and, by this time, believed Hall to be guilty. Id. Although the inmates' subsequent opinions were not communicated directly to Daniels, they were relayed to Daniels' wife, and Daniels overheard his wife giving this information to another family member. Id. at 319. Daniels conveyed this information to the remainder of the jury during deliberations. Appellant's App. pp. 24, 37.
After Hall filed his Motion to Correct Error, he moved to depose the jury. The trial court denied this motion. This ruling was certified for interlocutory appeal, and this court affirmed. See Hall v. State, 760 N.E.2d 688 (Ind.Ct.App.2002),
trans. denied. On May 22, 2002, the trial court denied Hall's Motion to Correct Error. Hall now appeals.
A party may file a motion to correct error when there is newly discovered evidence, such as alleged jury misconduct. Mitchell v. State, 726 N.E.2d...
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