Baer v. State

866 N.E.2d 752, 2007 Ind. LEXIS 363, 2007 WL 1470644
CourtIndiana Supreme Court
DecidedMay 22, 2007
Docket48S00-0404-DP-181
StatusPublished
Cited by33 cases

This text of 866 N.E.2d 752 (Baer v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baer v. State, 866 N.E.2d 752, 2007 Ind. LEXIS 363, 2007 WL 1470644 (Ind. 2007).

Opinions

[755]*755DICKSON, Justice.

Fredrick Michael Baer was sentenced to death following his convictions for two murders and the jury’s unanimous recommendation that he receive the death sentence. His direct appeal asserts the following claims of error: (1) prosecutorial misconduct; (2) erroneous admission of recorded telephone calls from jail; (3) trial court failure to comply with proper procedures in handling prospective jurors; and (4) inappropriateness of the death sentence. We affirm the judgment of the trial court.

On February 26, 2004, four-year-old Jenna Clark and her mother Cory Clark were discovered mortally wounded from deep cuts to the right side of their necks. Jenna was partially decapitated. The defendant was charged with two counts of murder and various other offenses.1 The State requested the death sentence. At trial, the jury declined to return a verdict of guilty but mentally ill, but rather found the defendant guilty on each murder charge and on the charges of robbery, theft, and attempted rape. After consideration of evidence presented in the penalty phase, the jury found the five alleged aggravating circumstances proved beyond a reasonable doubt, found the aggravating circumstances not outweighed by the mitigating circumstances, and recommended the death sentence. Appellant’s App’x. at 1514-16. Thereafter, the trial court sentenced the defendant accordingly, ordering the death sentence for each count of murder.2 The defendant presents his direct appeal to this Court, which has jurisdiction pursuant to Indiana Code § 35 — 50—2—9(j) and Indiana Appellate Rule 4(A)(1)(a).

1. Prosecutorial Misconduct

The defendant first contends that the prosecutor engaged in a general pattern of misconduct throughout both the guilt and penalty phases of the trial, “embark[ing] upon a planned attack on the defense” using “an assortment of improper and highly prejudicial comments and arguments.” Appellant’s Br. at 9. His appellant’s brief, however, specifically identifies and focuses his appellate argument upon only one claim of prejudicial misconduct. He asserts that the prosecutor improperly:

sought to condition the jury to consider the effect that guilty but mentally ill verdicts3 might eventually have on the [756]*756execution of a death sentence due to issues which might be raised on appeal. In effect, he was urging them to use their decision at the guilt phase to insulate a death sentence from appropriate appellate review.

Id. at 14. The defendant contends that these are “improper considerations for the jury at the guilt phase,” and that the prosecutor’s behavior impaired his right “to have an impartial jury decide if he should live or die, rather than one predisposed through prosecutorial conditioning to impose death.” Id. at 15.

The State urges that the issue is procedurally defaulted for failure to make a contemporaneous objection and, in the alternative, that there was no prosecutorial misconduct, but that if there was, it is neither fundamental error nor a basis for reversal because of the doctrine of invited error.

The defendant does not identify any objection presented at trial by his defense counsel and concedes that the claimed prosecutorial misconduct “went largely unchallenged.” Id. at 15. He seeks to avoid procedural default, however, contending that the misconduct constitutes fundamental error.

If a defendant properly raises and preserves the issue of prosecutorial misconduct, the reviewing appellate court determines “(1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected.” Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006); Booher v. State, 773 N.E.2d 814, 817 (Ind.2002); accord Roach v. State, 695 N.E.2d 934, 942 (Ind.1998); Mahla v. State, 496 N.E.2d 568, 572 (Ind.1986). “The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” Cooper, 854 N.E.2d at 835; accord Coleman v. State, 750 N.E.2d 370, 374 (Ind.2001).

Six months before trial, the defendant requested permission to file a belated notice of mental disease or defect. The tendered notice stated that it was being filed pursuant to Indiana Code § 35-36-2-1. When a defense under this section is asserted, the jury may find a defendant guilty, not guilty, not responsible by reason of insanity at the time of the crime, or guilty but mentally ill at the time of the crime. Ind.Code § 35-36-2-3. In the notice, however, the defendant advised his intention to assert the defense of mental disease or defect “as set out in” Indiana Code § 35-41-3-6. Appellant’s App’x. at 1200. This statute provides:

(a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.
(b) As used in this section, “mental disease or defect” means a severely abnormal mental condition that grossly and demonstrably impairs a person’s perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.

Ind.Code § 35-41-3-6. This provision describes the mental disease or defect that constitutes a complete defense to criminal liability, commonly referred to as the insanity defense. The trial court granted the request and the motion was filed. At the final conference between the trial court and counsel the week before trial began, the prosecutor asserted: “They have filed [757]*757a motion for insanity defense. They are asking for a not guilty by reason of insanity. ...” Trial Tr. at 338. Defense counsel did not challenge or provide any clarification of this statement.

At the beginning of the jury selection process on the first day of trial, the parties were each permitted to present a “mini opening statement,” briefly summarizing the facts and issues, to “facilitate the jury panel’s understanding of the case.” Ind. Jury Rule 14(b). The State briefly described the alleged crime and provided the names of expected witnesses. The defense’s mini opening statement primarily consisted of the following:

I will tell you right up front we plan to be very open with you from the word go and tell you Mr. Baer committed the crimes that Mr. Cummings [the prosecutor] just indicated. He killed two people, a mother and a daughter. We plan to present evidence that Mr. Baer has suffered from serious mental illness from about the time he was thirteen years old up through his adult life. We will not be asking you to excuse him.

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Bluebook (online)
866 N.E.2d 752, 2007 Ind. LEXIS 363, 2007 WL 1470644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baer-v-state-ind-2007.