Opinion
23A-CR-2374
06-12-2024
Darren S. Corbett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Office Logansport, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler Banks Supervising Deputy Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Fulton Circuit Court The Honorable A. Christopher Lee, Judge Trial Court Cause No. 25C01-2212-MR-736
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Office Logansport, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler Banks Supervising Deputy Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] Darren S. Corbett appeals his convictions for aggravated battery and neglect of a dependent as level 1 felonies and asserts that the trial court erred when it denied his motion to sever the charges and admitted the methamphetamine toxicology result. We affirm.
Facts and Procedural History
[¶2] After talking to Chassidy Swihart, the mother of W.S., who was born on March 31, 2022, on a dating app for two weeks, Corbett, who was born in 1990, met Swihart on May 6, 2022.
[¶3] On June 21, 2022, Dr. Laurie Ackerman, a pediatric neurosurgeon, performed an endoscopic surgery on W.S. who was referred to her for diagnosis and treatment of metopic craniosynostosis, a condition in which the metopic suture had closed prematurely limiting skull growth. W.S. was fitted with a helmet and discharged on June 23. On July 15, W.S. had a follow-up appointment with Dr. Ackerman, and he looked well and there was no reason to suspect any sort of bleed or hemorrhage at that time.
[¶4] On July 16, Corbett and Swihart took W.S. in Swihart's vehicle while they delivered food orders for Door Dash. Corbett consumed five or six THC gummies while they were driving. Around 8:00 p.m. and while they were delivering food, Corbett offered Swihart a THC gummy, and she took one. They arrived home at about midnight. Swihart took W.S., who was still in his car seat, inside the house and sat him in the living room. Swihart then lay down in her bedroom. W.S. almost immediately woke up and began crying, and Swihart "got up to get him" and rocked him in her arms Transcript Volume III at 67. W.S. kept crying, and Swihart "hollered" for Corbett to take W.S. so she could attempt to sleep before work. Id. at 68. Swihart asked Corbett if he would take W.S. and said: "[A]re you sure you got it? If you don't have it, I will take him." Id. at 69. Corbett said "I got it" and "It's fine." Id. At "a little after midnight," Swihart handed W.S. to Corbett while W.S. was "fussy" and crying loudly. Id. at 69-70. Corbett left the bedroom, and Swihart lay down to rest before work. At 12:30 a.m., Corbett rushed into the bedroom holding W.S., who was silent, in his outstretched arms, and Swihart said: "[W]ow, that was really fast. How did you get him to sleep so fast." Id. at 71. Corbett claimed he had fed W.S. and rushed back out of the room.
When asked if "at some point [Corbett] puts [W.S.] in the bed," Swihart answered: "I don't know what he did with [W.S.]. I laid back down to go to sleep at that point." Transcript Volume III at 125.
[¶5] At 5:00 a.m., Corbett woke Swihart because he wanted to have sex. After they engaged in sex, Swihart said that she needed to check on W.S. who was on Corbett's side of the bed. Corbett said: "I just checked on him, babe, he's fine." Id. at 74. Swihart trusted Corbett, lay back down to try to sleep, and fell asleep for "maybe about 40 minutes to an hour." Id. at 75.
[¶6] At 6:20 a.m., Swihart woke and dressed in work clothes. Swihart still did not hear any noises from W.S. which was not normal because he "usually woke up every three hours to feed and get changed and burp." Id. at 76. After preparing to leave, Swihart gave a kiss to Corbett, who was sleeping in the bed with W.S., and went to kiss W.S. but "[h]e seemed like he was cold." Id. at 78. She "hollered" for Corbett and told him to wake up and W.S. was not breathing. Id. At approximately 7:00 a.m., Swihart called 911.
[¶7] Fulton County Sheriff's Detective Sergeant Travis Heishman arrived at the residence and noticed a "very distinct odor of marijuana from within the residence." Id. at 201. Detective Sergeant Heishman spoke to Corbett that day and again on July 19th. Corbett told him that the odor was "from a skunk, that his dog got sprayed by a skunk." Id. Corbett indicated that they brought W.S. in and changed his diaper and laid him down for bed but Detective Sergeant Heishman discovered through DCS interviews that W.S. remained asleep in his car seat when they entered the residence.
On cross-examination, Detective Sergeant Heishman testified that there was a distinct odor difference between the odor of marijuana and a skunk and that he was comfortable in telling the difference.
[¶8] Fulton County Coroner Jerri Good arrived at the residence at approximately 8:30 a.m. and found W.S. lifeless and cool to the touch. Good determined that W.S. died between midnight and probably 5:00 a.m. or 6:00 a.m. Dr. Scott Waggoner, a forensic pathologist, conducted an autopsy and determined that the cause of death was blunt force injury to the head and the manner of death was homicide. Good listed the immediate cause of death or final disease or condition resulting in death was blunt force injury to the head. She also listed methamphetamine toxicity as a "significant condition contributing to death but not resulting in the underlying cause." Exhibits Volume I at 9 (capitalization omitted).
[¶9] On December 16, 2022, the State charged Corbett with: Count I, murder; Count II, aggravated battery as a level 1 felony; and Count III, neglect of a dependent resulting in death. On February 24, 2023, the State filed a motion to amend the information to add Count IV, neglect of a dependent as a level 6 felony, alleging that Corbett exposed W.S. to methamphetamine. Each of the counts related to allegations occurring on July 17, 2022. On March 15, 2023, Corbett filed an Objection to Amendment to Information which noted that the omnibus date was March 1, 2023, the additional charge was an amendment that prejudiced his substantial rights and changed his defense theory, and an amendment after the deadline in Ind. Code § 35-34-1-5 required adequate notice and an opportunity to be heard. After a hearing, the court granted the State's motion to amend the charging information.
[¶10] On April 11, 2023, Corbett filed a Motion for Severance of Counts arguing that the charges were joined solely on the ground that they were of the same or similar character denying him a fair determination of his guilt or innocence and substantial rights if he were tried at one trial. The court held a hearing on Corbett's motion during which Corbett's counsel requested a trial on Counts I, II, and III and a separate trial for Count IV arguing that the allegation involving methamphetamine in Count IV would create bias against him. The court subsequently denied Corbett's motion.
[¶11] During the jury trial, the State presented the testimony of multiple witnesses including Dr. Ackerman, Coroner Good, Dr. Waggoner, and Swihart. During direct examination, Dr. Waggoner, the forensic pathologist, testified that he reviewed records related to the autopsy performed on W.S. including his autopsy report, a toxicology report, and a report of his colleague, Dr. Emery. He also indicated that such records were the kind of facts or data reasonably relied upon in forming an opinion on the subject matter. The prosecutor moved to admit Dr. Waggoner's final autopsy report as State's Exhibit 56. After some preliminary questions, Corbett's counsel objected and asked that "the toxicology be redacted" and asserted: "He has had an opportunity to testify.
He did not mention he relied on any toxicology." Transcript Volume III at 241. The court stated: "[H]e asked him about toxicology specifically in direct. I mean, it was more generic. It wasn't like that piece, but he asked about that." Id. Corbett's counsel stated that he did not think Dr. Waggoner had "qualifications as to toxicology." Id. The court stated: "If you're objecting, I'm overruling it at this time." Id. The court admitted Dr. Waggoner's final autopsy report as State's Exhibit 56 which indicated that W.S.'s blood tested positive for "Amphetamine, Quant 80.1 ng/mL (20-100)" and "Methamphetamine, Quant 746 ng/mL (0-100)." Exhibits Volume I at 114. Dr. Waggoner testified that W.S. had massive swelling in the brain, two massive blood clots beneath and around the brain, hemorrhage in the eye, blood around the spinal cord, and some detachment of the retinas. He testified that "a non-accidental subdural hemorrhage" led to W.S.'s death. Transcript Volume III at 247. Without objection, he testified that he listed the toxicology findings in his report, "we found amphetamine and methamphetamine," "[t]he methamphetamine was 746 nanograms per ml, and that's a very high level, especially for a child," and "the drug would hasten what was already happening in the brain." Id. at 248-249. The prosecutor asked if the methamphetamine levels were high but the amphetamine levels were low provided a reference into the time of ingestion relative to death. Corbett's counsel objected based upon foundation, and the court sustained the objection. He also indicated that the injuries could not have been caused by a fall out of bed or a fall from four feet and that a fall from twelve to fifteen feet directly on his head would be required to sustain the injuries. He testified that W.S.'s injuries were consistent with being struck or hit against something blunt. He testified that W.S. suffered a serious brain injury that would cause, "if not immediate, unconsciousness very soon," and death would occur in ten minutes to half an hour without medical care. Transcript Volume IV at 14. When asked when the injuries occurred if W.S. was normal at 12:30 a.m. and found cold and unresponsive at 7:00 a.m., he answered that "[i]t would be closer to the 12:30 than to the 6:00 a.m." Id. at 16. On cross-examination, Dr. Waggoner testified that the amount of methamphetamine was "746, which is seven and a half times what a therapeutic for an adult would be, so it's very high," and the child would be irritable, fussy, and maybe have convulsions, circulatory collapse, or a very fast heart rate. Id. at 22.
[¶12] After the State rested, Corbett's counsel moved for a directed verdict, and the court denied the motion. After the parties and the court discussed the final jury instructions, Corbett's counsel again moved for a directed verdict, and the court denied the motion. The jury found Corbett guilty of Count II, aggravated battery as a level 1 felony, and Count III, neglect of a dependent resulting in death as a level 1 felony, and not guilty of Count I, murder, and Count IV, neglect of a dependent as a level 6 felony. The court sentenced Corbett to concurrent terms of forty years for Count II and forty years for Count III.
Discussion
I.
[¶13] Corbett argues the trial court erred when it denied his motion to sever the charges. Ind. Code § 35-34-1-12(b) provides "[i]f a defendant's pretrial motion for severance of offenses or motion for a separate trial is overruled, the motion may be renewed on the same grounds before or at the close of all the evidence during trial" and "[t]he right to severance of offenses or separate trial is waived by failure to renew the motion." Corbett did not renew his motion for severance at trial. Accordingly, he has waived this issue. See Ind. Code § 35-34-1-12(b); Rouster v. State, 600 N.E.2d 1342, 1346 (Ind. 1992) (holding that a pretrial motion for a separate trial was properly denied and the defendant "failed to renew it at the close of evidence and thus has waived the issue on appeal") (citing Ind. Code § 35-34-1-12(b)), reh'g denied; Grimes v. State, 84 N.E.3d 635, 641 (Ind.Ct.App. 2017) (holding that defendant "failed to renew his motion at trial, and therefore, he waived the right to severance") (citing Ind. Code § 35-34-1-12(b)), trans. denied; Ennik v. State, 40 N.E.3d 868, 875 (Ind. Ct. App. 2015) (holding that defendant waived issue because he did not renew his severance motion during trial), trans. denied.
In his reply brief, Corbett points to the exchange at the May 17, 2023 pretrial conference:
[Corbett's Counsel]: We plan to renew our motions to sever and everything else that we filed just to preserve the issues for
THE COURT: Okay.
[Corbett's Counsel]: - (indiscernible). So those will continue
THE COURT: Nothing new?
[Corbett's Counsel]: No, those will continue to come up during trial as well. But we can discuss that further
THE COURT: Okay.
[Corbett's Counsel]: - as we get closer. Nothing new on that, Your Honor.Transcript Volume II at 27-28. We cannot say this exchange amounts to a renewal "before or at the close of all the evidence during trial," Ind. Code § 35-34-1-12(b), and Corbett does not point to any renewal that occurred during trial.
II.
[¶14] Corbett argues that the trial court committed reversible error "when it admitted the methamphetamine toxicology result to establish an ultimate fact in issue." Appellant's Brief at 19. He asserts that the pathologist restated the toxicology result to establish the ultimate fact that W.S. was exposed to methamphetamine and the toxicology result was "not used as evidence to aid the jury in understanding and evaluating the credibility of the testifying pathologist." Appellant's Brief at 20. He contends that an expert cannot be a conduit for the hearsay opinion of another and the State used the pathologist as a conduit to admit the toxicology result without calling the actual toxicologist who generated the result. He argues that the error amounted to fundamental error.
[¶15] The trial court has broad discretion to rule on the admissibility of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court's ruling on the admission of evidence is generally accorded a great deal of deference on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh'g denied. We will not reverse an error in the admission of evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). The erroneous admission of evidence which is cumulative of other evidence admitted without objection does not constitute reversible error. Hoglund v. State, 962 N.E.2d 1230, 1240 (Ind. 2012) (citation omitted), reh'g denied. Additionally, we have found the issue waived where a defendant objected to only a portion of the challenged evidence. See Dickey v. State, 999 N.E.2d 919, 921 (Ind.Ct.App. 2013); Hutcherson v. State, 966 N.E.2d 766, 770 (Ind.Ct.App. 2012), trans. denied.
[¶16] During Dr. Waggoner's testimony, Corbett's counsel objected to the admission of the final autopsy report, but did not object to Dr. Waggoner's testimony that he listed the toxicology findings in his report, "we found amphetamine and methamphetamine," "[t]he methamphetamine was 746 nanograms per ml, and that's a very high level, especially for a child," and "the drug would hasten what was already happening in the brain." Transcript Volume III at 248-249. Accordingly, Corbett has waived this issue. A failure to timely object to the erroneous admission of evidence at trial will procedurally foreclose the raising of such error on appeal unless the admission constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue and is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).
[¶17] We note that Corbett's counsel discussed methamphetamine toxicity during cross-examination of Coroner Good prior to Dr. Waggoner's testimony. Specifically, Corbett's counsel asked her if she mentioned in her report that methamphetamine toxicity was a significant condition contributing to death but not resulting in the underlying cause, and she answered affirmatively. She also testified that that information was derived with the assistance of the pathologist. To the extent Corbett argues that Dr. Waggoner's testimony served as a conduit for hearsay, we disagree. See Wilber v. State, 460 N.E.2d 142, 143 (Ind. 1984) ("[M]edical reports are routinely relied upon by forensic pathologists in arriving at their opinions as to cause of death, and when presented to the trier of fact by such persons at a trial, in this form and manner, and for this purpose, testimony reflecting their content is not hearsay."). We also note that the jury found Corbett not guilty of Count IV, which involved the allegation that he exposed W.S. to methamphetamine. We cannot say that the admission of Dr. Waggoner's autopsy report or the toxicology result warrants reversal.
[¶18] For the foregoing reasons, we affirm Corbett's convictions.
[¶19] Affirmed.
Riley, J., and Foley, J., concur.