Pittman v. State

• Citation: 528 N.E.2d 67
• Decision Date: 14 September 1988
• Docket Number: No. 71S00-8711-CR-1090,71S00-8711-CR-1090
• Parties: Donald C. PITTMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 67

528 N.E.2d 67

Donald C. PITTMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 71S00-8711-CR-1090.

Supreme Court of Indiana.

Sept. 14, 1988.

Aladean M. DeRose, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Donald C. Pittman was charged and convicted following a jury trial in the St. Joseph Superior Court of Robbery, a class A felony, Burglary, class B felony, and murder. On March 30, 1987, he was sentenced by the trial court to forty (40) years for felony murder and ten (10) years for burglary, said sentences to be served concurrently. The robbery charge was held by the court to have merged into the felony murder.

Six issues are presented for our review in this direct appeal, as follows:

1. sufficient evidence of causation of death to convict Pittman of felony murder;

2. error in final instruction;

3. refusal of the trial court to appoint a hypnotist to assist Pittman;

4. denial of Pittman's motion for mistrial;

5. ineffective assistance of counsel; and

6. sufficiency of the evidence to convict Pittman of robbery and burglary.

The victim, Robert LaBere, was alone in his home at 902 Ohio Street, Walkerton, Indiana, on the evening of February 14, 1986. He lived alone in a duplex and the other unit was unoccupied. LaBere weighed between 400-500 pounds. Because of his obesity and other complications, he had circulatory problems. His hobby was coin collecting. He would buy rolls of pennies, look through them and then rewrap them in standard coin wrappers. At about 10:00 p.m. on February 14, LaBere entered the Walkerton Police Station and reported his home had been broken into and he had been stabbed. He was able to drive himself to the station and report the incident. He described his assailant as a tall white male about forty (40) wearing a red baseball type cap, blue jeans, and a jacket. He said his assailant had a face he would never forget. He had been stabbed three times on parts of his chest and abdomen. Some bleeding was observed, and fat tissue was protruding from a stomach wound. He told medical attendants he chased his assailant throughout the house during which time he was stabbed. LaBere stated he was able to grab the red baseball cap from his attacker.

LaBere was then taken by ambulance to the LaPorte Hospital for further treatment. He was able to walk with assistance and was alert and conscious. The stab wound to his abdomen which penetrated the stomach lining, the peritoneum, was about an inch in length at the surface and about three fingers length at the fascia. Because the wound penetrated the fat layer and because LaBere had low blood pressure and presented some symptoms of shock, Dr. Moore decided to do an exploratory laparotomy to determine whether any vital organs had been damaged. Dr. Moore and his associates felt it was vital to determine whether organs had been damaged while at the same time recognizing the laparotomy was a high risk procedure to LaBere due to his obesity and circulatory problems. The laparotomy revealed the knife wound had not damaged any of LaBere's vital organs but did reveal serious conditions of the heart. After the laparotomy, LaBere's condition improved from critical to fair; he had stable blood pressure and was able to assist the nurses in getting himself out of bed to a couch. He was conscious and alert.

On March 1, 1986, LaBere died. The immediate cause of death was diagnosed as a pulmonary saddle embolism, a blood clot which blocked both lungs, originating probably in LaBere's legs. The blood clot did not originate from the site of the wound. Prior to February, 1986, LaBere was known by his treating physician to have recurring cellulitis and lymphangitis, i.e., swelling of the legs and susceptibility to infection. At the time of autopsy his right lower leg showed stasis dermatitis, a condition which he had prior to admission and which generally indicates long term bad blood flow in the legs and extremities and susceptibility to embolism. Apparently the pulmonary embolism was partly a product of Mr. LaBere's obesity and his post-operative immobility. It was further indicated that had LaBere not undergone laparotomy to determine injury to vital organs he probably would have survived, according to his treating physician, because cleansing and suturing of the surface wound was a minor procedure.

Further evidence developed that Pittman had been with friends Jesse Roach, George Mosley, and Teddy Salzer, in Walkerton. They had been drinking heavily during the evening. During the evening they separated and later came back together at Salzer's apartment, where Mosley, and Tim Nice were visiting. At that time, Pittman looked scared or excited, had a foul odor about him, and stated he had robbed a fellow and stabbed him three times. He had three rolls of pennies in his possession. He washed his clothes and put them back on wet. He had in his possession a butterfly hunting knife which he left at Salzer's home. Nice had told them the fellow he robbed vomited on him which accounted for the foul smell. Pittman's wife confirmed that he smelled like vomit when he returned to their home about 10:30 p.m., and did not have his red baseball cap with an Indian on it which he had worn when he left. Pittman had told Salzer and the others that the man he stabbed lived in the 900 block and that he regretted stabbing a man for three rolls of pennies. LaBere's house had been ransacked and the glass had been knocked from the front storm door. A foul odor prevailed throughout the house and the red baseball cap with blood on it was found on the kitchen floor.

I

Pittman claims the cause of LaBere's death was a pulmonary saddle embolism, probably originating in his legs and ultimately blocking his lungs. His reasoning follows that the causal link between that embolism and the one-inch, non-organ threatening knife wound in LaBere's abdomen two weeks earlier is too remote to support a felony murder conviction. There is no question LaBere's physical condition put him at much higher risk than one without the physical disabilities to withstand the trauma of the injuries inflicted by Pittman. It is not a valid defense, however, that it was just as likely LaBere might have died in his own living room from an embolism even without the stab wounds. It has never been a defense that the victim would not have died from the wounds inflicted on him had it not been for his weakened physical condition The question is whether the stab wounds inflicted by Pittman caused or contributed to LaBere's death or set in motion a series of events that could reasonably be expected and did, in fact, result in his death. The surgeon in charge of giving emergency treatment to LaBere at the LaPorte Hospital, together with LaBere's treating physician, found the knife wound to the abdomen had penetrated the peritoneum. There were two other knife wounds on LaBere's body. A serious threat to LaBere's life was that one or more vital organs might be damaged. Obviously if there was such damage and it was not repaired, LaBere faced a life threatening situation. The doctors determined that an exploratory laparotomy was essential even though this procedure presented some risk. This emergency was brought about by the injuries inflicted on LaBere by Pittman and set in motion the chain of events that resulted in LaBere's death.

A similar situation was presented in Sims v. State (1984), Ind., 466 N.E.2d 24. Sims had entered the home of Edwin Rose, a 92 year-old man who lived alone. Sims took items from Rose's home and beat Rose with a brick, causing injuries among which was an open fracture on his mandible. Because of the fracture to his mandible, Rose was unable to eat solid foods and doctors found it necessary to surgically repair the fractured mandible. Rose's condition improved for a short time and then deteriorated, resulting in his death from congestive heart failure and lobar pneumonia. Physicians testified the beating he received, including the fractured mandible, contributed to the series of events that resulted in his death. Writing for a unanimous court, Justice DeBruler found:

Appellant contends that the surgery on the fractured mandible was unnecessary and worsened the victim's condition; and as a result, the intervening cause of surgery relieves him of criminal responsibility for the victim's death. This argument must fail. It was determined at trial that the victim was in stable condition before the surgery and that the surgery was necessary in order to prevent a possible life threatening infection. In order for an intervening cause to break the chain of criminal responsibility, it must be so extraordinary that it would be unfair to hold the appellant responsible for the actual result. Here, the intervening cause of surgery was not extraordinary because the injury necessitated it. As a result it is fair to hold the appellant responsible for the victim's death.

There is sufficient evidence from which the jury could infer that the beating inflicted upon the victim contributed mediately or immediately to his death.

Sims, 466 N.E.2d at 26.

Physicians in the instant case testified in a similar manner to those in Sims. Dr. Rick Hoover, a pathologist, believed that LaBere's death was attributable to acute cardiac failure from breakage of blood clots which formed due to prolonged bed rest which resulted from the exploratory laparotomy or the surgery on the abdomen for repair of the stab wounds. Dr. Hoover further indicated that "[i]f it were not for the stab wound of the abdomen there would be no cause of death because in my opinion Robert LaBere would be alive today." There was sufficient evidence from which the jury could infer the stab wounds Pittman inflicted on the victim contributed mediately or immediately to his death. See Myers v. State (1987),...