State v. Lewis

• Citation: 429 N.E.2d 1110
• Decision Date: 31 December 1981
• Docket Number: No. 381S84,381S84
• Parties: STATE of Indiana, Appellant, v. William R. LEWIS, M. D., Appellee.
• Court: Supreme Court of Indiana

Page 1110

429 N.E.2d 1110

STATE of Indiana, Appellant, v. William R. LEWIS, M. D., Appellee.

No. 381S84.

Supreme Court of Indiana.

Dec. 31, 1981.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, Jack F. Crawford, Pros. Atty., 31st Judicial Circuit, Crown Point, for appellant.

W. Henry Walker & Associates, P. C., W. Henry Walker, William E. Davis, East Chicago, for appellee.

PIVARNIK, Justice.

On March 21, 1979, the Lake County Grand Jury returned an indictment against the Appellee-Defendant, Dr. William R. Lewis, charging him with the Performance of an Unlawful Abortion. He entered a plea of not guilty to this charge. Trial commenced on February 4, 1980. After the State rested, the defendant moved for judgment on the evidence, which motion was denied. The defendant rested and the State offered rebuttal evidence. After the State rested, the defendant again moved for judgment on the evidence. The court granted the motion as to the charge of Performance of an Unlawful Abortion, apparently due to the fact that the trial court determined that Mrs. Carr did not "abort." However, the court denied the motion with regard to the included offense of Attempted Performance of an Unlawful Abortion.

The case was submitted to the jury on February 8, 1980, on the charge of Attempted Performance of an Unlawful Abortion. After seven hours of deliberation, the jury was deadlocked. The Court declared a mistrial and discharged the jury on February 9, 1980.

On February 13, 1980, the State filed a motion asking the court to set the case for retrial. On February 20, 1980, defendant Lewis repeated his motion for judgment on the evidence pursuant to Trial Rule 50. On April 11, 1980, the trial court granted defendant's motion for judgment on the evidence. The State filed a motion to correct errors on June 6, 1980. Hearing was had on that motion on June 27, and on June 30, the court overruled the State's motion to correct errors. It is from this judgment that the State appeals. The State petitioned to transfer this case from the Court of Appeals to the Supreme Court pursuant to Appellate Rule 4 (A)(10). This petition was granted and transfer was so ordered on March 26, 1981.

The State claims that the trial court erred in granting defendant's Motion for Judgment on the Evidence after a hung jury and after a mistrial had been declared, and by incorrectly applying the "thirteenth juror" standard to the defendant's post-trial Motion for Judgment on the Evidence pursuant to Trial Rule 50.

In September of 1978, Lynda Carr, a thirty-one year old mother of four, was told by her family doctor that she was pregnant. Mrs. Carr wished to terminate the pregnancy.

On September 30, 1978, Mrs. Carr and a friend, Debbie Dotson, went to the Concord Medical Center in Chicago, Illinois, to arrange for an abortion. She was examined by Dr. Mandan Farahati, who diagnosed that she was fifteen weeks advanced in her pregnancy. Since the clinic performed only first trimester abortions, Mrs. Carr was refused an abortion and referred to a hospital in Wisconsin where the cost for a second trimester procedure would be six hundred dollars. Being unable to raise that amount of money, Mrs. Carr took no further action to obtain an abortion until two months later.

On a suggestion from Miss Dotson, Mrs. Carr went to the Gary Northwest Indiana Womens Services, Inc., Clinic on November 28, 1978. Mrs. Carr was told initially that the cost for an abortion at the Gary Northwest Clinic would be two hundred dollars. She filled out a form consenting to an abortion. Mrs. Carr was then examined by the appellee-defendant, Dr. William R. Lewis. Both an internal and an external examination were performed. After the examinations, Lewis told Mrs. Carr that he could not perform a "suction curretage" method of abortion on her and that "something else would have to be done."

Mrs. Carr was then instructed by a nurse at the clinic to return the following Monday. She was told that at that time the doctor would put her to sleep, " 'inject small, little match-like things' into her and then something would be inserted into her stomach; that she would "go home and ... abort the baby."

On Monday, December 4, 1980, Mrs. Carr returned to the Clinic, paid five hundred and ninety ($590) dollars in cash and received a receipt for that amount of money. She was instructed that she would be the last patient of the day because the procedure being used for her would take a little longer than the others. She was given a prescription for a drug called "TACE" and was told the drug was to dry up her milk after she aborted the baby. Since she had to wait she went to the drugstore and had the prescription filled and took some immediately. She was also given antibiotics so she would not get an infection, and other pills which she was to take the next day, if she had not gone into labor, to contract her uterus. She was instructed to go home to abort the baby and told that when labor pains started she was to go to the bathroom, put a plastic garbage bag in the toilet and "let it happen." She was to return the bag and its contents to Dr. Lewis for disposal.

After all of the other patients had left, Mrs. Carr had her stomach cleaned and Dr. Lewis inserted the "little match sticks" or dilators, into her cervix. Dr. Lewis inserted needles into her stomach and made four or five injections. Mrs. Carr became ill and vomited while in the doctor's office. She then went home and went to sleep. She vomited during the night. Her mother called an ambulance, but Mrs. Carr refused to go to the hospital. The ambulance was called again and police were also called. The police strapped Mrs. Carr down and took her to St. Mary's Medical Center. Dr. Phillip Kellar examined and diagnosed Mrs. Carr to be clearly in the late second trimester of her pregnancy. When she was admitted it was noted that an abortion had been attempted. Dr. Kellar kept Mrs. Carr under observation throughout the day. Her condition continued to deteriorate. Late in the evening of December 5, Dr. Kellar called in Dr. Chester Kmak, an obstetrician. Dr. Kmak examined Mrs. Carr, diagnosed her to be five and one-half months pregnant, incoherent, acutely ill, and determined that her condition was so critical that if nothing were done she would probably die. Assuming that the fetus was dead and that this was causing Mrs. Carr's condition, Dr. Kmak decided to perform a Caesarean section. A live baby boy was delivered. The child weighed one pound and four ounces, and measured twelve inches in length. It was determined to be five and one-half to six months maturity. The child lived for approximately two hours.

I.

The State claims that the trial court erred in granting Defendant's Motion for Judgment on the Evidence. The State argues that the law in Indiana is clear that the failure of a jury in a criminal case to agree on a verdict and the subsequent declaration of a mistrial renders the initial proceeding a "nullity" entitling the State to a retrial. The State cites us to Hinton v. State, (1979) Ind., 397 N.E.2d 282; State v. McMillan, (1980) Ind., 409 N.E.2d 612; and Harlan v. State, (1921) 190 Ind. 322, 130 N.E. 413 for support for this claim. The State also brings to our attention that in Hendry v. Crandall, (1892) 131 Ind. 42, 30 N.E. 789, the court held that a judge was without power or authority to decide a case after the matter had been submitted to the jury and no verdict could be reached. Another case cited to us is Murray v. Hauser, (1898) 21 Mont. 120, 53 P. 99 in which the Montana Supreme Court ruled that a trial court erred in entering judgment for the defendant on a contractual claim after the jury failed to reach a verdict and had been discharged. The court there stated that the disagreement of the jury and their discharge resulted in a mistrial and that that which would have been a trial, had the jury rendered a verdict, became a nullity and that therefore, as a result of the declaration of a mistrial, the parties were restored to the same position they occupied before the trial.

In addition, it is argued that the State has a statutory right to a retrial after the declaration of a hung jury and a mistrial, and a jury is discharged.

Ind.Code §§ 34-1-21-7 and 34-1-21-8 (Burns 1973) provide:

Sec. 7. The jury may be discharged by the court ... after they have been kept together until it satisfactorily appears that there is no probability of them agreeing.

Sec. 8. In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately or at a future time, as the court may direct.

However, this statutory provision is subject to the Rules of Trial Procedure as promulgated by the Indiana Supreme Court. State ex rel. Western Parks, Inc. v. Bartholomew County Court, (1978) Ind., 383 N.E.2d 290. Legislative rules of procedure are effective unless a court rule supercedes them or they are incompatible, in which case the court rule takes precedence. Neeley v. State, (1974) 261 Ind. 434, 305 N.E.2d 434. Rules of civil procedure, whether statutory or court-made, are applicable to criminal cases where no criminal procedural rule or statute exists. Ind.Code § 35-4.1-2-2 (Burns 1971 Repl.)

The conflict in this issue arises from the apparent grant of authority to the trial court to grant a motion for judgment on the evidence after the jury is discharged. Ind.R.Tr.P. 50(B). This section grants the trial court the power to enter judgment after the verdict. It is not specified, however, that provision is made for the granting of judgment on the evidence after a hung jury where no verdict is rendered. It is not specified that provision is made for submitting the issues to the jury and then entering judgment absent a verdict.

Ind.R.Tr.P. 50 was modeled after the corresponding federal rule. Changes were made, however, a ten-day time limitation for the making of...