McMichael v. State

• Decision Date: 06 December 1984
• Docket Number: No. 4-684A148,4-684A148
• Citation: 471 N.E.2d 726
• Parties: William L. McMICHAEL, Sr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 726

471 N.E.2d 726

William L. McMICHAEL, Sr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-684A148.

Court of Appeals of Indiana,

Fourth District.

Dec. 6, 1984.

Rehearing Denied Feb. 8, 1985.

Ronald K. Smith, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

William L. McMichael, Sr. was convicted of the criminal neglect of his dependent 22-month-old son, William L. McMichael, Jr. (Billy), for failure to provide adequate medical care. Billy died as a result of an abdominal trauma, which deteriorated into peritonitis, a condition the jury resolved should have been treated a significant time prior to death. McMichael claims such jury verdict was improperly swayed by two slides of Billy's body and was not supported by sufficient evidence. He also contends that, regardless of our decision with respect to the verdict, the trial court's four-year sentence was unjustifiable because it was based on improper considerations. We affirm both the verdict and the sentence.

ISSUES

1. Did the trial court err in admitting a pair of slides into evidence over McMichael's objection that they were gruesome in nature, served no purpose in proving or disproving any facts at issue, and were unduly prejudicial?

2. Was the evidence insufficient to sustain the jury's verdict that McMichael was guilty of neglect of a dependent?

3. Did the court's probation officer employ improper considerations in preparation of his recommendation of sentence, including the following: statements to McMichael that the probation officer considered this a case of murder; statements that McMichael's wife should have been charged with the offense; and asking McMichael if he would submit to a polygraph examination?

FACTS

On March 23, 1983, between 4:45 and 5:00 P.M., the Delaware County Ambulance Service responded to a call requesting assistance at the McMichael residence in Muncie. When the emergency medical personnel entered the home, they observed 22-month-old Billy lying naked on the floor with McMichael kneeling beside him. One paramedic noticed Billy's abdomen was grossly distended and bloated and that there were both old and recent bruises on his body, visible even in the semi-dark house. Determining from Billy's grayish color that he was not getting enough oxygen in his blood-stream, the emergency team established an airway into his trachea and transported the child to Ball Memorial Hospital. Billy died later that evening.

At trial, a pathology resident at Ball Memorial Hospital, Dr. Daniel House, testified to medical conclusions he had reached as a result of performing an autopsy on Billy's body. He observed multiple bruises over the major part of Billy's anatomy, including his face and head, all along his spine, and on his external genitalia. The other distinctive feature he found was the As for the symptoms of the infection, Dr. House stated that for the first twelve hours from its onset, the victim would run a high fever and vomit continuously. After the vomiting stops, the victim has no desire to eat but within the next twelve hours, his abdomen will begin to cause increasing discomfort and will swell. The pain would be so great that a child would not want to move and would resist efforts to make him do so. After 24 hours, the victim's abdomen will increasingly distend, and the victim will often experience muscle spasms in the abdomen. As for combatting the peritonitis itself, Dr. House explained that the best chance of survival exists within the first twelve hours, and he likened the damage to the intestine to a prolonged chemical burning of its surface. He explained that treatment is more difficult after the first twelve hours but not impossible. Succinctly then, Dr. House pronounced the cause of Billy's death was a blow to his abdomen, perforating his small intestine and resulting in a peritonitis (abdominal infection) over 48 hours old and sepsis (infection of whole body).

massive swelling of Billy's abdomen, which was so swollen it was hard. Dr. House's examination of the inner body cavity itself revealed additional abnormalities. He discovered Billy's abdomen contained about one-half quart of a bloody, foul-smelling liquid where normally no liquid is present. Further examination revealed the source of this liquid was an infection (peritonitis) resulting from the irritation and inflammation of the intestinal tissues by digestive juices escaping through two perforations in Billy's small intestine. Dr. House testified the perforations had probably been caused by a blow to Billy's abdomen, the severity of which caused his small intestine to be twice pierced by his spine and his left kidney to be bruised. As a result of the infection's fluid having nowhere to go, Billy's abdomen swelled. He further testified the peritonitis was a chronic type, having existed for more than 48 hours prior to death.

In his defense, McMichael called forth several character witnesses then took the stand himself. He described how he acquired custody of Billy, as well as his older sister, from his ex-wife. He had had a doctor check the children over because of visible signs of abuse inflicted by his former wife. He said that in the four or five months he had had custody, he attempted to maintain Billy's health by giving him vitamins and juices but noticed that he bruised easily, such that the bruises on Billy's body at his death were allegedly the result of McMichael's efforts to dislodge a hot dog choking him. In the morning of March 22, the day before Billy died, McMichael noticed Billy's abdomen was swelling and that his trousers no longer fit. By that afternoon, McMichael had acknowledged to himself that Billy was also vomiting and was sitting very still and realized he would need medical attention but he wanted to wait until the next day to have him examined by a doctor. In the meanwhile, he attempted to reduce Billy's abdominal swelling with ice packs, alcohol rubs, liniment and warm baths. It was while attempting to administer one of these warm baths, on March 23, that McMichael left Billy unattended for a few moments and returned to find him lying in the tub. McMichael pulled Billy out of the water, realized he was having difficulty breathing, and telephoned his wife, Dixie, for aid. After attempting mouth-to-mouth resuscitation and cardio-pulmonary resuscitation at Dixie's instruction, McMichael called her back and asked that she contact an ambulance. The subsequent events were as described above.

DECISION

Slides

During Dr. House's testimony, the State displayed projections of two slides, Exhibits 3 and 4, taken of Billy after his death. Exhibit 3 is a photographic death mask by which Dr. House identified Billy as the subject upon which he had conducted an autopsy. The other slide, Exhibit 4, is a close-up external view of Billy's abdomen, showing its gross distension and its numerous bruises. McMichael objected to their presentation on the grounds they were gruesome, irrelevant, and cumulative of two other photographs, their evidentiary weight thereby being merely prejudicial. We see no error.

It is of well-established legal principle that the admission of photographic evidence at trial is within a trial court's discretion, subject to appellate reversal only for an abuse thereof. Bray v. State, (1982) Ind., 430 N.E.2d 1162; Talley v. State, (1980) Ind.App., 400 N.E.2d 1167. To determine whether such abuse has occurred, we must determine first whether the photographs are relevant--do they portray a material fact to which a witness may testify? Id. Upon a determination of such relevancy, photographs may then be weeded out if their gruesomeness would outweigh their relevance in the minds of the jurors. Bonner v. State, (1979) 271 Ind. 388, 392 N.E.2d 1169. In the instant case, the two slides pass both tests.

First of all, Dr. House testified both photographs were taken during preliminary stages of the autopsy proceedings. Exhibit 3, Billy's face, was identified by Dr. House as the subject of the autopsy about which he was testifying. Exhibit 4 was taken for the specific purposes of demonstrating the two very apparent abnormalities in Billy's anatomy--the pattern of bruises and the swelling with its consequent tenseness of Billy's abdomen. Both these bits of evidence would have been proper verbal testimony because they established facts material to the case against McMichael, the identity of the victim and the very apparent symptoms of Billy's ill-health which should have alerted his father to seek proper medical aid. This evidence was relevant; thus, so were the photographs.

The second step of this relevancy review clearly indicates these photographs were not gruesome. We admit their viewing is sad and painful, but their unpleasantness does not make them gruesome. See, e.g., Bonner v. State, supra, 271 Ind. 388, 392 N.E.2d 1169. We therefore dispose of the gruesomeness and irrelevancy arguments of McMichael. See Worthington v. State, (1980) Ind.App., 409 N.E.2d 1261 (photographs as evidence of neglect of child relevant and not gruesome).

As for McMichael's contention the slides are cumulative of other exhibits, we again find no error. Exhibits 1 and 2 are full-length photographs (not slides) of Billy's naked body on a backboard, lying on a hospital bed. One of the paramedics answering the call to the McMichael residence identified the pictures as representing the child she tended on March 23. She testified she was not certain whether she was present when the shots were taken but that they accurately depicted the child. On the other hand, Exhibits 3 and 4 were only of two specific parts of Billy's anatomy, his head and his abdomen, taken for autopsy purposes. We fail to see how these four exhibits could be cumulative because they were intended to fulfill different evidentiary purposes from two different...