Kent v. State

• Citation: 675 N.E.2d 332
• Decision Date: 31 December 1996
• Docket Number: No. 45S00-9408-CR-719,45S00-9408-CR-719
• Parties: Christopher Eugene KENT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Supreme Court of Indiana

Page 332

675 N.E.2d 332

Christopher Eugene KENT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45S00-9408-CR-719.

Supreme Court of Indiana.

Dec. 31, 1996.

Charles E. Stewart, Jr., Appellate Public Defender, Crown Point, for Appellant-Defendant.

Pamela Carter, Attorney General, James A. Joven, Deputy Attorney General, Office of Attorney General, Indianapolis, for Appellee-Plaintiff.

BOEHM, Justice.

A jury convicted Christopher Eugene Kent of the murder of three-year-old Joshua Verill. Kent was sentenced to fifty-five years. He presents eight issues for our review which we consolidate and restate as:

I. Did the trial court abuse its discretion in denying Kent's motions for mistrial based upon several alleged instances of prosecutorial misconduct?

II. Did the trial court properly admit opinion testimony from a police officer?

III. Did the trial court err by allowing the prosecutor to impeach Kent's testimony with his voluntary statement to the State?

IV. Did the trial court abuse its discretion in granting the State's peremptory challenges?

V. Did the trial court err in considering letters from third parties in determining Kent's sentence?

We affirm.

Facts

In December 1991, Debra Verill, her son Joshua, and her one-year old daughter moved into an apartment with Kent and his daughter in Griffith, Indiana. At approximately 10:00 a.m. on May 11, 1992, Debra left the apartment to run some errands leaving her two children with Kent. About twenty minutes later, Debra returned home and Kent told her in an annoyed tone, "Go look at your son." Debra found Joshua lying on his bed, pale and white in color, perspiring around the hairline, and with a blue spot on his neck. When Debra asked Kent what was wrong with the child, Kent stated that Joshua fell head-first into the bathtub and also fell a second time off of the toilet. Kent told Debra that he was not in the room either time the child fell. Debra then discovered that Joshua was not breathing and called for help.

A few minutes later, Officer Michael Kuhn arrived at the home and found Kent straddling Joshua and roughly thrusting on the child's abdomen. The officer told Kent to stop and pushed Kent away from Joshua. The officer was unable to detect a pulse but observed that the child was attempting to breathe on his own. Less than five minutes later, Officer Marlene Starcevich arrived at the home and started rescue breathing. Shortly thereafter, two paramedics arrived and transported the child to the hospital. The emergency room doctor attempted to resuscitate Joshua but was unsuccessful. A jury found Kent guilty of murder and this appeal ensued.

I. Prosecutorial Misconduct

Kent argues that the trial court erred in denying his motions for mistrial based upon several instances of alleged prosecutorial misconduct. The trial court's ruling on a mistrial is afforded great deference on appeal because the trial court is in the best position to evaluate the circumstances and their impact on the jury. Bradley v. State, 649 N.E.2d 100, 107 (Ind.1995). A mistrial is an extreme remedy invoked only when no other measure can rectify the situation. Id. When a motion for mistrial is based upon a claim of prosecutorial misconduct, this Court must determine: 1) whether there was misconduct by the prosecutor; and 2) whether that misconduct, under the circumstances, placed the defendant in a position of "grave peril" to which he should have not been subjected. Smith v. State, 516 N.E.2d 1055, 1063 (Ind.1987). The gravity of the peril turns on the probable persuasive effect of the misconduct on the jury's decision, not on the degree of impropriety of the conduct. Bradley, 649 N.E.2d at 107-08.

Kent cites as the first instance of misconduct the prosecutor's offer of a photograph of the child victim with a bruise on his nose. Another photograph of the child had already been admitted. Kent objected to the second photograph and moved for a mistrial at a sidebar conference. The trial court had previously ruled in the State's favor on a motion in limine dealing with the same photograph. However at the sidebar, the trial judge reversed himself and excluded the photograph, agreeing with Kent's argument that it may be more prejudicial than probative. The jury did not see the photograph and they never heard why Kent wanted the photograph excluded. Given that the trial court had previously ruled in the State's favor on the admissibility of the second photograph, the prosecutor's attempt to introduce it was not misconduct. Indeed, Kent's contention that it was misconduct to offer an exhibit that had previously been ruled admissible is itself highly questionable.

Kent next claims that the prosecutor improperly elicited testimony from two witnesses in an attempt to indicate to the jury that Kent had abused the child in the past. Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show action in conformity therewith." Ind.Evidence Rule 404(b). Even if the jury hears evidence of uncharged wrongs by the defendant, a prompt admonishment to the jury to disregard the improper testimony is usually enough to avoid a mistrial. Greenlee v State, 655 N.E.2d 488, 490 (Ind.1995). To support a mistrial based on testimony of prior uncharged acts of the defendant, we must evaluate whether the evidence was intentionally injected and the degree of harm to the defendant. Id.

Kent argues that the first attempt to inject prejudicial testimony came when the prosecutor questioned Dr. Young Kim, a pathologist. The State asked the pathologist his opinion of the cause of the child's death, then followed up with a question regarding what part a neck injury played in the death. The pathologist responded that during the course of an autopsy of the child's body, he observed the neck injury as well as bruises and hemorrhages on the victim's scalp which were indicative of past child abuse. Kent objected to use of the term "child abuse" and the court ordered that term stricken from the record. The court also instructed the jury to determine the facts "from the testimony and evidence admitted by the Court." Record at 132. On its face, the question asked by the State was not formulated to elicit testimony regarding past child abuse.

Kent argues that a second attempt to inject prejudicial testimony occurred when the prosecutor was questioning the investigating police officer, Detective Teeling. On direct examination by Kent, the detective was asked about a statement that Debra had made to him regarding her son's hitting his head. On cross-examination by the State, the detective testified that Debra learned of the incident only after the child told her about it. The prosecutor then asked the detective if Debra told him that things had happened to the child when she was not at home to witness them. The detective responded affirmatively and Kent objected on the ground that the question was beyond the scope of direct examination. Record at 1276. After a sidebar conference and a brief hearing outside the presence of the jury, the trial court sustained Kent's objection and prohibited further similar questions. Record at 1285. Once the trial judge ruled on the objection, the prosecutor abandoned that line of questioning. Kent has failed to demonstrate either intentional misconduct or the degree of prejudice necessary for a mistrial in questioning either the pathologist or the detective. Therefore, the trial court's conclusion that the prosecutor's conduct did not provide a basis for a mistrial was well within its discretion. See Willoughby v. State, 660 N.E.2d 570, 576 (Ind.1996) (trial court's ruling on motion for mistrial will be reversed only for an abuse of discretion).

Kent next argues that the prosecutor repeatedly attempted to elicit testimony from two expert witnesses that the child had been murdered. The first expert testimony relied upon by Kent was that of Dr. Bonnie Brodkin, the emergency room physician who treated the child at the hospital. While questioning Dr. Brodkin about her emergency room diagnosis, the prosecutor asked, "[W]hy is it in your opinion this child did not choke on his own vomit?" Record at 618. Dr. Brodkin responded, "Because I think he may have been murdered." Id. At that point, Kent asked for a sidebar conference and moved for a mistrial. The prosecutor explained that she was trying to ask the doctor about the child's cause of death, not for her legal conclusion. The form of the question is consistent with the explanation. The trial court denied Kent's motion for mistrial, but promptly admonished the jury not to consider the doctor's legal conclusion. After the admonishment, the prosecutor attempted to ask the doctor five additional questions regarding her diagnosis which prompted further objections by Kent. Only two of those five questions were answered and those two were not objected to. The prosecutor then concluded her direct examination of Dr. Brodkin. Again, Kent has failed to prove to the trial court's satisfaction, or ours, that the State acted deliberately to prejudice him. Moreover, the trial court's admonishment, along with a final instruction which told the jury to consider only the evidence admitted at trial, was sufficient to cure any error. See Greenlee, 655 N.E.2d at 490.

Kent next points to the expert testimony of Dr. Robert Kirschner, a forensic pathologist, to support his claim that the prosecutor repeatedly attempted to elicit improper testimony. Dr. Kirschner testified that he had reviewed the autopsy reports and photographs, among other materials, to familiarize himself with this case. The prosecutor asked Dr. Kirschner, "[W]hat was the significance of your findings after you reviewed all of those things?" Record at 873. Dr. Kirschner responded:

The significance of my findings were that this was a child who died as a result of child abuse. He died of multiple injuries,...