Robinson v. State, 2-1072A80

Decision Date15 April 1974
Docket NumberNo. 2-1072A80,2-1072A80
PartiesThelma ROBINSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court

Dennis E. Zahn, Symmes, Fleming, Ober & Symmes, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

Defendant-appellant (Thelma) was tried before a jury on an indictment charging her with second degree murder in the death of her fifteen month old son 'Chris'. The jury found her guilty of voluntary manslaughter for which the court sentenced her to imprisonment for not less than two years nor more than twenty-one years. We reverse for error in refusing to give either of two tendered jury instructions to the general effect that if motive had not been proved that was a circumstance favoring defendant.

The State's evidence was substantially as follows:

On the even of July 22, 1971, Thelma, then aged twenty-two, and the mother of four children, two older and one younger than Chris, was with her children and other members of the family, as a guest at the Marion County (Indianapolis) suburban home of her mother. A family barbeque was being held for a cousin who was returning to military duty following a furlough. (Thelma was separated from her husband. She and her children lived in a house in the inner city.)

At 8:00 P.M. three members of the Washington Township Fire Department came to the mother's house in response to a call for first aid. They entered the house and found Chris lying on a couch in the family room. The one fireman who testified noticed quite a bit of mucus around Chris's nose and blood and a cut on the bottom half of the upper lip. The boy was not conscious and the fireman could not detect breathing. He set up the oxygen, then returned to the truck to get the first aid kit and to radio for the ambulance to 'step on it'. On returning to the house he obtained the child's name, age and address by speaking with Thelma's mother in the family room and with Thelma in a rear bedroom. He then asked who would go to the hospital with the child and was told that Thelma's seventeen year old brother, Chris's uncle, would. He took the teen-age uncle to the ambulance and then returned to the house to retrieve his gloves and first aid kit, having been out of the house about two minutes. While he was picking up his gloves and kit in the family room he heard voices which sounded to him like they came from the hall where the bedrooms were. The voice he identified as being that of Thelma's mother said:

'You shouldn't have thrown the baby against the wall. You were beating him too hard.'

The voice he said was Thelma's answered:

'Shut up.'

He thereupon immediately left the house.

A pathologist who performed an autopsy on the body of the deceased child testified that on external examination he found bruises on the forehead and lips. On opening the skull he discovered lineal fractures of the skull, blood under the sheets that form the hard portion of the skull and contusions of the brain itself 'by the site of the fractures'. The cause of death was these cranial and cerebral injuries. He was of the opinion that the cause of these injuries 'has to be a substantial blow, because the skull of a younger person is elastic, so it can support or tolerate force applied to it more than an adult person.' He could not imagine that the injury could have resulted from the child falling from a standing position, but if the child were thrown against a wall that 'might' cause it. He could not tell whether a fall from a table top could cause it, but he knew of a child's skull fracture, not similar to this one, which was caused by a fall from a height of five to six feet. And, finally, that the skull was fractured,

'When a force was applied to the skull. The type--the manner with which that force was applied to the skull, I cannot say. Now, the force, I said, was applied from the front to the back, like a plastic bowl, when you press upon it in the sides, and it cracks in the center. That's the way these fractures were produced, and in relation with what we have observed.'

The testimony of a sheriff's department detective sergeant established that the child died in his presence at Methodist Hospital at 9:29 P.M. He thereafter went to the defendant's mother's house where he was shown the dining room area as the place where the child sustained its injury. The floor was covered with wall-to-wall shag carpeting and one wall was brick. At his request the defendant, her mother, and her brother (who had gone to the hospital with Chris) accompanied him 'down to the sheriff's office, so we could make an investigation'.

After defendant had been properly advised of her rights and had signed a 'Miranda' waiver, the Sergeant testified that he

'had a conversation with her. She stated, that she was twenty-two (22) years of age. She resided at 1133 1/2 West 34th Street, and she was a married lady, but separated at this time, and was the mother of four (4) children, April being four (4) years old, Ronnie being two (2) years old, Cristopher Clay was fifteen (15) months, and Anthony Scott was two (2) months. She stated that on the evening of July 22nd, she came over to her mother's house, between six thirty (6:30) and seven (7:00) P.M. for a cookout, and that all four (4) of her children had been playing out in the backyard on a patio. She stated that she came into the house, and she found Cristopher Clay lying on the carpet in the dining room area of the house. She stated that she picked Cristopher Clay up, and she was sitting on a chair. She picked him up by his fingers, and was attempting to get him to walk, and he let go of her fingers and fell backwards on the carpet. She stated then she picked him up again with her fingers, with him grasping her's, picked him up, and jiggled him up and down just a little bit, attempting to get him to walk, and he let go, falling backwards again on the carpet. I asked her if anything else had happened, and she stated that she might have set him down maybe too hard on his seat one time; and the last time, after he fell, she left him lying on the carpet on his back, and went to another area of the house, and this is all that she knows, until her mother came in, and told her that Cristopher Clay was sick, and they called the fire department. I further asked her if she knew how he had received an abrasion or mark on his lip, and she stated that he had picked up a lit cigarette, and stuck it in his mouth. I further asked her if Christopher Clay had ever received any injuries or been treated in a hospital before, and she stated that back in February, that the child had partially fallen out of a broken baby bed, and had hung by it's right leg for quite some time, fracturing the right hip, and this had been treated by a Doctor Sims, at 3140 North Illinois Street. This was about the basis of her conversation, at this time, and after this time she was placed under arrest.'

He also saw on Chris's body 'the bruise, a very noticeable one, on the left side of the forehead, the abrasion on the lip, and also I observed a mark on the buttocks area of the child, which I was unable to determine what caused it.'

On that evidence the State rested. The defendant's motion for a directed verdict was overruled. In that ruling we find no error, albeit the evidence of defendant's guilt may be meager. Nevertheless the pathologist's testimony was sufficient to warrant a finding that the child Chris died as the result of violence, i. e., his head coming forcibly into contact with a blunt instrument producing a fracture of his skull and a contusion of his brain. This was sufficient proof of the corpus delicti. Brown v. State (1958), 239 Ind. 184, 190, 154 N.E.2d 720; Jones v. State (1969), 253 Ind. 235, 246, 252 N.E.2d 572, 19 Ind.Dec. 531.

Defendant's response to her mother's reproach, as allegedly overheard by the fireman, could be understood as an admission that she threw the baby against the wall and that she was beating him too hard. From evidence of the corpus delicti and the facts thus admitted, a purposeful and malicious killing (second degree murder) could be inferred. Some finders of fact might demand more convincing evidence before holding that every reasonable doubt had been overcome, but that is not the test for this ruling. All that is required is a prima facie case, which is to say, substantial evidence of probative value sufficient (directly and by reasonable inference) to sustain each element charged. Holliday v. State (1970), 254 Ind. 85, 87, 257 N.E.2d 679, 21 Ind.Dec. 199; State v. Overmyer (1973), Ind.App., 294 N.E.2d 172, 36 Ind.Dec. 24.

Neither the trial judge in ruling on the motion for directed verdict nor this court in reviewing that ruling is permitted to weigh the evidence. State v. Overmyer, supra. The trial court committed no error in refusing to direct a verdict for the defendant.

The defendant's evidence consisted of the testimony of her mother, Genevia Phelps; her sister, Rita Phelps, age 13; her brother Kenny Phelps, age 17; her next door neighbor, William Turrentine, age 58; Joetta Turrentine (apparently William's wife); Diana Pittman, a friend for whom defendant had baby sat; and defendant herself.

Defendant denied having had the conversation with her mother which the first-aid-fireman testified he overheard. She testified that she had three or four beers before she went to her mother's house and about three after she got there. She was sitting on the patio talking when Chris needed changing so she brought him into the dining room where she played with him for about five to ten minutes. He was laughing and enjoying the play. She was not angry with him. The play included tossing him high into the air. He slipped through her hands and fell. She didn't know what happened then; she was just standing there too shocked to scream; her mother came in, her ...

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