MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 16 2017, 10:07 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Robert G. Bottorff, II Curtis T. Hill, Jr. Bob Bottorff Law, PC Attorney General of Indiana Jeffersonville, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher A. Bruck, October 16, 2017 Appellant-Defendant, Court of Appeals Case No. 10A05-1612-CR-2865 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Vicki L. Appellee-Plaintiff. Carmichael, Judge Trial Court Cause No. 10C04-1501-F3-1
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 1 of 30 Case Summary [1] Christopher Bruck appeals his convictions and sentence for Level 1 felony
aggravated battery and Level 6 felony neglect of a dependent. We affirm.
Issues [2] The issues before us are:
I. whether the trial court properly admitted Bruck’s three statements to police into evidence over his objection that they had been obtained in violation of his Miranda rights;
II. whether the State established a sufficient corpus delicti to allow the admission of Bruck’s statements into evidence;
III. whether the trial court properly admitted testimony and documentary evidence from one of the State’s expert witnesses;
IV. whether the trial court properly denied Bruck’s motion for public funds to hire an expert witness; and
V. whether the trial court properly sentenced Bruck to an aggregate term of forty-two-and-one-half years.
Facts [3] Bruck is the father of Hayden Dukes, who was four years old in January 2015.
Hayden’s mother is Amanda Dukes. Hayden suffered from a genetic disorder
known as DiGeorge Syndrome. As a result of this condition, Hayden was non-
verbal and had signs of autism, was very small for his age, and was asthmatic.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 2 of 30 He did not begin walking until around four years of age. Bruck and Amanda
lived separately. On December 31, 2014, Amanda brought Hayden to Bruck’s
residence for Hayden’s first-ever overnight visitation with Bruck, which was to
last four days. At this time, Bruck was living with his wife, Yulanda, in the
basement of a house rented by Yulanda’s parents, Lovette and John Hall, in
Floyd County. Hayden seemed to have a slight cold when Amanda dropped
him off but no other ailments, although he would require regular breathing
treatments for his asthma. Although DiGeorge Syndrome can sometimes cause
seizures, Hayden had no prior history of seizures.
[4] In the mid-to-late-afternoon of January 3, 2015, Bruck was in the basement
with Hayden and two of his other children, watching a basketball game.
During this time, Yulanda and Lovette were upstairs watching television with
another of Yulanda’s children, and John was asleep in an upstairs bedroom. At
around 5:30 p.m., Bruck yelled from downstairs that Hayden was having a
seizure. Shortly thereafter, Bruck called 911, while Yulanda carried Hayden
upstairs and laid him on a couch. Yulanda did not drop Hayden or bump his
head on anything while carrying him.
[5] Hayden first was transported by ambulance to Scott County Memorial Hospital
(“Scott Hospital”); Bruck rode in the ambulance with Hayden. When Hayden
arrived at the hospital around 6 p.m., he was not making any voluntary
movements, had a low heart rate and difficulty breathing, and was having
seizures. Bruck informed emergency room physician Dr. Rafael Carter that
Hayden had been having a fever and cold-like symptoms and denied that he
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 3 of 30 had suffered any injury or trauma. Based on this information, Dr. Carter
originally investigated the possibility that Hayden had sepsis resulting from
pneumonia.1 Because of the severity of Hayden’s condition, it was decided it
would be necessary to transport him to Kosair Children’s Hospital in Louisville,
Kentucky (“Kosair”). At about 8 p.m., a physician at Kosair requested that a
CT scan of Hayden’s head be performed before transporting him. The scan was
performed around 9 p.m. and revealed that Hayden had a large subdural
hematoma with a midline shift. This meant that there was severe bleeding
between Hayden’s brain and skull, and that the brain was swelling so much that
the right hemisphere was pushing into the left hemisphere. Subdural
hematomas with midline shift are very serious and frequently lead to death.
After learning the CT scan results, Dr. Carter told Bruck that Hayden must
have suffered some kind of trauma to sustain an injury like that. Bruck then
told Dr. Carter that in the middle of the previous night, Hayden had walked
into the door frame of Bruck and Yulanda’s bedroom. However, Dr. Carter
believed, based on the severity of Hayden’s head trauma, that the head trauma
could not possibly have been caused by Hayden walking into a door frame. Dr.
Carter also would have ordered a CT scan and begun administering drugs to
Hayden to alleviate brain swelling much earlier if he initially was aware
Hayden had sustained a head trauma.
1 Blood test results later confirmed that Hayden did not have pneumonia or sepsis.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 4 of 30 [6] At some point, someone at Scott Hospital called the Indiana State Police
(“ISP”) to report that he or she suspected Hayden of having been abused.
Troopers Zachary Smith and Nick Yaeger arrived at Scott Hospital shortly
thereafter, in full uniform and driving their police cruisers. When the
ambulance arrived from Kosair to transport Hayden, Bruck had no way of
going to Kosair. Trooper Smith offered Bruck a ride to Kosair, which he
accepted. Bruck rode in the front of Trooper Smith’s cruiser and was not
handcuffed or restrained in any way, and the two engaged in normal
conversation during the ride. Meanwhile, Trooper Yeager contacted ISP
Detective Rachel Abbott and informed her of the suspected abuse and that
Hayden was being transported to Kosair. ISP Detective David Mitchell also
was contacted and headed toward Kosair.
[7] When arriving at Kosair, Bruck initially went to a public emergency room
waiting room. Troopers Smith and Yaeger also were at the hospital, but they
did not attempt to monitor Bruck’s whereabouts or restrict his movements in
any way, nor were they ever ordered to do so by any superiors. Detective
Abbott arrived at Kosair around 10:30 p.m., approached Bruck in the waiting
room, and said she wanted to ask him some questions about Hayden. Bruck
readily agreed. Detective Abbott was in plain clothes but wearing her badge
and gun on her belt. Detective Abbott and Bruck then went to a conference
room of some type to talk, as arranged by a Kosair employee. The precise
layout of this room is unclear—Detective Abbott described it as more like a
business conference room, with a large table surrounded by about ten chairs.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 5 of 30 Detective Mitchell recalled the room as resembling an employee break room,
with a small table, microwave, water fountain, and room for six to seven
people. Trooper Smith recalled that the room was a “crisis room” for families
of ill children, which resembled a residential family room, including a few seats,
table, and television. Tr. Vol. II p. 106. The room was in a non-public area of
the hospital and had an unlocked door and no windows.2
[8] Detective Abbott began interviewing Bruck at about 10:55 p.m. Before the
recording began, Detective Abbott told Bruck that he was free to leave. Bruck
was not handcuffed or restrained in any way. Troopers Smith and Yaeger were
sometimes in the hallway outside the room, but they were not guarding the
door. Detective Abbott did not warn Bruck of his Miranda rights. Bruck
professed ignorance at what could have caused Hayden’s head trauma, except
that he reiterated the story about Hayden having hit his head on the bedroom
door frame during the previous night and said, “I don’t know if that could have
caused what’s been going on or not.” Tr. Vol. I p. 65. Bruck said that Hayden
mostly acted normal the next day, except for having a slight nosebleed when he
woke up. Bruck continued that Hayden appeared normal before suddenly
having a seizure while he was in the basement with Hayden at about 6 p.m., at
which time he called 911. During the interview, Bruck’s phone rang several
times. Bruck told Detective Abbott, “I’m trying to get a ride back, because I’m
2 Although Detectives Abbott and Mitchell conducted two recorded interviews of Bruck in this room, both were audio-only recordings.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 6 of 30 going to be stranded.” Id. at 80. Detective Abbott responded in part, “Well, I
will say this, I will say you probably need to stay a little bit longer, because I
think Hayden might be having surgery.” Id. at 82. Bruck said, “Yeah, I’m
going to find out what’s going on.” Id. Bruck did in fact answer a call,
apparently from Yulanda, during the interview.
[9] Bruck then repeated his story that Hayden had hit his head on the door frame of
his bedroom the night before and said that Hayden generally avoided playing
with Bruck and Yulanda’s other children. As the interview ended, the
following exchange took place:
Abbott: Your little boy, I mean, it’s very serious.
Bruck: I know.
Abbott: So I think you need to stick around.
Bruck: I'm going to, I'm not going to leave any time soon.
Abbott: Okay. We might need to talk to you again afterwards, because we’re—this is all—I mean.
Bruck: That’s fine. You can talk to my wife, you can talk to her mom and dad, you can check out my kids, that’s fine.
Abbott: Okay. All right. Are you just going to stay here or do you know where you’re going to be?
Bruck: Actually, I've got to find out where they are going.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 7 of 30 Id. at 94. Detective Abbott then verified that she had Bruck’s phone number,
and the interview ended. Bruck was cooperative the whole time. The interview
lasted approximately thirty-five minutes. Detective Mitchell arrived at Kosair
sometime during this interview. Like Detective Abbott, he was wearing plain
clothes, with his badge and gun on his belt.
[10] As this first interview was taking place, Hayden was beginning to undergo
surgery. When Hayden was admitted to Kosair, ER physician Dr. Megan
Laniewicz noted a number of contusions, including ones on his right forehead,
abdomen, shoulder, left knee, and lower leg. Dr. Laniewicz believed the
bruising on Hayden’s abdomen and shoulder was not typical childhood
bruising. Also, she thought that the severity of Hayden’s subdural hematoma
was similar to something often seen “in the setting of a motor vehicle crash or a
significant free fall, a fall from a second story window, something where you
have a significant speed and then that is—you get deceleration, a sudden
deceleration of the body, and the brain then shifts in the skull.” Tr. Vol. V p.
95.
[11] Dr. William Gump performed neurosurgery on Hayden. He removed a portion
of Hayden’s skull, removed the subdural blood clot, attempted to stop bleeding
within the brain itself, and inserted a monitor to constantly measure the
pressure on Hayden’s brain. The pressure remained high even after surgery and
continued to increase. After surgery, Dr. Gump told Detective Mitchell that
Hayden only had a thirty percent chance of surviving. Dr. Gump also believed
Hayden’s subdural hematoma was the result of an acute injury and not a
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 8 of 30 chronic condition. Dr. Gump compared Hayden’s injury to one he had
previously seen in a child who had been picked up by a tornado and dropped
seven miles from home. He also believed it resembled a high-speed car crash
injury or one from a ten-story fall into a bush. He did not think that either
walking into a door frame or falling down three of four stairs could possibly
have caused Hayden’s brain trauma.
[12] Hayden’s surgery ended a little after 1 a.m. on January 4, 2015. After Dr.
Gump went over the surgery and prognosis with Detective Mitchell, Detectives
Mitchell and Abbott decided to re-interview Bruck because what he had said in
the first interview did not seem consistent with the trauma Dr. Gump described.
It appears Bruck was still in the “conference room” when Detectives Mitchell
and Abbot found him and requested a second interview, to which he readily
agreed, without coercion or threats. Between the first and second interviews,
no one told Bruck he had to stay in the room. At one point he went looking for
a restroom, and no one told him to go back to the room.
[13] The second interview began at 1:22 a.m. Again, no Miranda warnings were
given. Bruck started by reiterating that the only possible way he knew of that
Hayden’s head could have been injured was when he walked into the bedroom
door frame the previous night. Detective Mitchell then began telling Bruck that
Hayden could not have injured himself the way Bruck had described. Detective
Mitchell also repeatedly told Bruck that the doctors needed to know as much as
possible about how Hayden was injured in order to treat him properly. This
was untrue, however. At one point, Detective Mitchell suggested that Hayden
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 9 of 30 could have fallen down some stairs, at which point Bruck said, “If I remember,
I think he did fall down a few steps.” Tr. Vol. I p. 129. Bruck said he had not
previously told anyone that because “[w]e’ve had CPS on our case.” Id. at 130.
Bruck described how the basement floor was concrete with a thin layer of
carpeting over it, and Hayden had hit the right side of his head hard after falling
down a few steps. Detective Mitchell was not satisfied with this response and
continued asking Bruck to tell them what had really happened. Finally, Bruck
said that, while he was watching a basketball game with his younger son on his
lap, “He [Hayden] was trying to pull my hand and I wouldn’t let up. . . . I was
sitting there and I was into a f***ing stupid ass game. . . . I thumped him on
the head. . . . With my hand . . ., he fell back. . . . And his head hit like the
floor.” Id. at 139-40. Bruck explained that he hit Hayden in the forehead with
the heel of his palm, causing him to fall backwards onto the floor. He also said
that this occurred at about 4 or 4:30 p.m. and that Hayden managed to crawl
into bed afterwards, but that he knew something was wrong because Hayden
was holding his head at an unusual angle.
[14] After the second interview, Detectives Mitchell and Abbott wanted to arrest
Bruck, but neither one of them had arrest powers in Kentucky. Thus, they told
Bruck that they wanted to bring him to his house so he could show them where
the incident happened and so they could talk to Yulanda. However, the
detectives actually wanted to bring Bruck to the Sellersburg ISP post. They
asked Trooper Yaeger to drive him there. Bruck voluntarily agreed to go with
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 10 of 30 Trooper Yaeger, and again he rode in the front seat and was not restrained,
although he was unaware he was being driven to an ISP post.
[15] After arriving at the post, Detective Abbott questioned Bruck a third time in an
interview room. This time, Detective Abbott did verbally inform Bruck of his
Miranda rights and gave him a written advice of rights and waiver form.
Detective Abbott twice told Bruck that the rights were “just a formality” before
passing him the written form. Ex. 3. Without reading the form, Bruck signed
it, but on the incorrect line; instead, he signed on the line for an adult guardian
to waive a juvenile’s rights. During the third interview, Bruck largely paralleled
what he said toward the end of the second interview about hitting Hayden on
the head with the palm of his hand, but contended he did not do so on purpose.
He explained that Hayden began having seizures about an hour or hour-and-a-
half after the incident, at which time he called 911. Bruck denied ever having
abused or hit Hayden any other time. At the conclusion of the interview, Bruck
was arrested.
[16] Hayden died on January 8, 2015. Dr. Amy Burrows-Beckham of the Kentucky
Medical Examiner’s office performed an autopsy on Hayden. She found that
the cause of death was a closed head injury inflicted by an external blunt force.
She noted the extensive brain swelling, which had caused the brain to herniate
into the hole in the base of the skull and press against the brain stem. She
opined that Hayden’s DiGeorge Syndrome was unrelated to his death. She also
believed that Hayden’s injury could not have been caused by running into a
door frame, nor from a fall down a household flight of stairs. Rather, it was
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 11 of 30 consistent with falling from a multiple-story building, jumping in front of a car
or being in a car wreck, or having a heavy object dropped on his head. She
believed a forceful blow to Hayden’s head with a hand could be sufficient to
have caused the injury.
[17] On January 7, 2015, the State charged Bruck with Level 3 felony aggravated
battery. After Hayden died, the State amended the information to one count of
Level 1 felony aggravated battery causing death to a child and one count of
Level 1 felony neglect of a dependent causing death to a child. Bruck filed a
pre-trial motion to suppress all three of his interviews with police, claiming that
he was in custody for the first two and had to be Mirandized and that the third
interview was the result of an improper “question first-warn later” interrogation
method. After conducting a hearing, the trial court denied Bruck’s motion to
suppress.
[18] A jury trial began on September 23, 2016. At the conclusion of the presentation
of evidence on that day, Bruck moved for $5000 in public funds to hire an
expert witness, a pediatric neurologist, to rebut expert opinions “introduced
during depositions in this matter.” Tr. Vol. II p. 133. The State objected to this
request, noting that the case had been pending for eighteen months and that
Bruck could have moved for such funds at an earlier date. Bruck responded in
part, “right now we’re simply looking to hire a doctor to evaluate the evidence
to determine whether there might be a rebuttal to the opinions that we received
in deposition.” Id. at 138-39. The trial court denied Bruck’s motion.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 12 of 30 [19] At trial, in addition to the medical professionals who had personally treated or
examined Hayden, the State sought to introduce the testimony of Dr. Melissa
Currie, a specialist in child abuse medicine at the University of Louisville. At
the outset, Bruck objected to her testimony, stating in part, “I’d just like to
create the record that that was ruled upon and granted that we’re not going to
have testimony about what a person was told about what Mr. Bruck said, and I
think that that would preclude conclusions based on that as well.” Tr. Vol. III
p. 53.3 The trial court overruled this objection. During Dr. Currie’s testimony,
Bruck objected several times to her stating opinions based on statements made
by Bruck, based on lack of foundation. The trial court overruled these
objections.
[20] Dr. Currie testified that Bruck’s death was caused not only by bleeding causing
external pressure on the brain and swelling but also bleeding within the brain
itself. She stated that Hayden’s head injury was inconsistent either with him
walking into a door frame or falling down three to four steps. She did believe
that a strike to Hayden’s forehead with a bare palm could have caused the
injury if done with enough force and that the bruise on the right side of
Hayden’s forehead was consistent with such a strike. She clarified that the
injury would have been sustained by the hand striking, not Hayden falling back
onto the floor. She also stated that Hayden’s injury “was one of the worst brain
3 Bruck also objected to the fact that, in Dr. Currie’s written report, she referred to Hayden standing on a bed when Bruck hit him, although there is no evidence that Hayden was standing on a bed. Dr. Currie testified that her opinions were unchanged based on Hayden standing on the floor when he was struck.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 13 of 30 injuries I’ve seen as far as the amount of disruption inside his brain tissue, how
deep it went, how many different places it was there.” Id. at 80. As with other
doctors, she compared Hayden’s injury to ones sustained in a car crash. She
also opined that even a one-hour delay by Bruck in calling 911 after striking
him in the head decreased Hayden’s survival chances, and the first hour after
sustaining head trauma is the most important for treatment.
[21] On October 3, 2016, the jury found Bruck guilty of both counts as charged. At
the sentencing hearing, the trial court stated that it was finding as aggravating
circumstances Hayden’s age, the fact that he had a disability, and that there
were other children present at the time of the offense. It found one mitigating
circumstance, Bruck’s lack of criminal history. The trial court entered
judgment of conviction for Level 1 felony aggravated battery but reduced the
neglect of a dependent count to a Level 6 felony due to apparent double
jeopardy concerns. It imposed sentence of forty years for the aggravated battery
conviction and two-and-a-half years for the neglect conviction, to be served
consecutively for an aggregate term of forty-two-and-a-half years. Bruck now
appeals.
Analysis I. Admission of Statements to Police
[22] The first issue Bruck raises is whether his three statements to police should have
been suppressed due to violations of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602 (1966). Although Bruck initially raised this issue through a pre-trial
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 14 of 30 motion to suppress, he did not seek an interlocutory appeal from the denial of
that motion but did object to introduction of the statements into evidence at
trial. Thus, this issue is more appropriately framed as whether the trial court
properly admitted evidence at trial, not whether it properly denied the motion
to suppress. See Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). The admission
of evidence at trial is a matter within the trial court’s discretion. Id. at 259-60.
“We review these determinations for abuse of that discretion and reverse only
when admission is clearly against the logic and effect of the facts and
circumstances and the error affects a party’s substantial rights.” Id. When there
has been both a motion to suppress and a trial objection to evidence, the trial
court’s ultimate ruling on admissibility should be based primarily upon
evidence and testimony presented at trial. Id. at 259 n.9. However, the trial
court may also consider evidence from a motion to suppress hearing that does
not directly conflict with foundational evidence presented at trial. Id. Also,
courts should consider evidence from a motion to suppress hearing that is
favorable to the defendant and not contradicted by foundational evidence
offered by the State at trial. Id.
[23] Of the three interviews Bruck had with police, the second one is the most
critical. Bruck did not make any inculpatory admissions in the first statement.
The third, Mirandized statement largely duplicated the un-Mirandized second
statement, as far as Bruck admitting that he had struck Hayden on the forehead
an hour or so before he started having seizures. If the second statement was
improperly taken, then there are potential problems with the third statement,
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 15 of 30 despite Bruck’s having been Mirandized, because of the holding in Missouri v.
Siebert, 542 U.S. 600, 124 S. Ct. 2601 (2004); that case disapproved of the police
tactic of questioning a suspect in a custodial setting without giving Miranda
warnings, then giving such warnings only after a suspect has confessed and
having the suspect repeat that confession. Thus, we will focus here primarily
upon Bruck’s second interview at Kosair and whether Miranda warnings were
required before that interrogation.
[24] In Miranda, the Supreme Court established that if law enforcement officers
question a person who is in “custody or otherwise deprived of his action in any
significant way,” the person must first “be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him,
and that he has a right to the presence of attorney, either retained or
appointed.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Miranda warnings are
not required if a person being interrogated is not in custody. Luna v. State, 788
N.E.2d 832, 834 (Ind. 2003). The ultimate inquiry in determining whether a
suspect is in custody is “whether there is a ‘formal arrest or restraint on freedom
of movement’ of the degree associated with a formal arrest.” California v.
Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (quoting Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)). This requirement is
met if a reasonable person in similar circumstances would believe he or she is
not free to leave. Luna, 788 N.E.2d 832, 833 (Ind. 2003). “Only when the
officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a ‘seizure’ has
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 16 of 30 occurred.” Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991)
(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).
The mere fact that questioning takes place in a “coercive atmosphere” or that
police “aggressively” interrogate a suspect does not necessarily place the suspect
“in custody.” Luna, 788 N.E.2d at 834 (quoting Mathiason, 429 U.S. at 495, 97
S. Ct. at 714). In making a custody determination, courts must consider the
totality of the circumstances, and the subjective knowledge and beliefs of an
officer are irrelevant unless those thoughts are conveyed, through actions or
words, to the person being questioned. State v. Hicks, 882 N.E.2d 238, 241 (Ind.
Ct. App. 2008).
[25] This case bears some similarities to Morales v. State, 749 N.E.2d 1260 (Ind. Ct.
App. 2001). In that case, after a young child was brought by her mother to a
hospital with burns, a doctor suspected abuse and contacted law enforcement.
When a police officer arrived at the hospital, he asked the mother to
accompany him to the hospital chapel so he could talk to her about the child’s
injuries. The mother voluntarily agreed to do so, and after a twenty to thirty
minute interrogation, the mother returned to her child’s bedside. We held that
the mother was not in custody during the interrogation in the hospital chapel
and, therefore, Miranda warnings were not required. Morales, 749 N.E.2d at
1265. Although no one had expressly told the mother that she was free to
leave, we found “nothing in the record to suggest that a reasonable person
would not have felt free to leave under the circumstances.” Id.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 17 of 30 [26] There are some differences in Bruck’s case that must be acknowledged. First,
while the mother in Morales apparently had her own transportation to and from
the hospital, Bruck did not. Instead, he relied on Trooper Smith to drive him
from Scott Hospital to Kosair, and he had no way of immediately leaving
Kosair once he got there. However, we cannot say Bruck’s lack of personal
motorized transportation rendered him in custody. In the context of all the
facts and circumstances, Trooper Smith’s driving Bruck to Kosair was a
courtesy that would have been offered to any parent in such a situation. Bruck
was not driven to Kosair as a suspect; rather, he sat in the front seat of Trooper
Smith’s cruiser, was not restrained, and engaged in general conversation with
Trooper Smith unrelated to Hayden’s situation.
[27] After arriving at Kosair, Detective Abbott asked to speak with Bruck, and he
readily agreed. They went to a hospital-arranged private conference room of
some kind. It was in a non-public area of the hospital, but many parts of a
hospital are, and there is no indication that it was secured in a manner similar
to a police station. Although recollections of the room vary, at worst, it was
similar to a conference room in an office building—with a large table
surrounded by a number of chairs. It does not appear to have been comparable
to an interrogation room at a police station.
[28] At the conclusion of this first interview, Detective Abbott twice suggested that
Bruck should “stick around” because of Hayden’s condition and because “[w]e
might need to talk to you again afterwards . . . .” Tr. Vol. I p. 94. Detective
Abbott’s suggestion that Bruck “stick around” can be seen two ways: one, as a
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 18 of 30 suggestion that would be given to any parent whose child was in critical
condition, and two, as a hope that Bruck would be available in the event she
wanted to question him some more. It was not a demand or an order that
Bruck stay at the hospital.
[29] During Bruck’s time at Kosair between the first and second interviews, none of
the detectives or troopers there kept track of his whereabouts. Although it
appears Bruck may have stayed in the conference room most of that time, he
did so of his own volition. When he did leave the room to look for a restroom,
no one demanded that he go back to the conference room. Troopers Smith and
Yaeger were present at Kosair during both interrogations, but they were not
guarding the conference room door. Also, during the first interview, Bruck had
said nothing incriminating and so had no reason to think he was a suspect.
[30] When Bruck was asked to talk a second time, he readily agreed. There is no
evidence he was threatened or coerced into doing so. During the second
interview, Detective Mitchell did become much more aggressive in his
questioning than Detective Abbott had been during the first interview, but that
did not turn the interview into a custodial situation. Bruck also contends that
he has mild mental retardation that affected his perception of the circumstances.
However, neither Detective Abbott nor Detective Mitchell had any awareness
of a mental deficiency, nor did they notice Bruck having any difficulties
understanding anything, or that he appeared to be under the influence of any
substances. Bruck also did not present evidence of the extent of any mental
disability. Bruck’s claim of mental deficiency is irrelevant to his Miranda
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 19 of 30 claims. See Faris v. State, 901 N.E.2d 1123, 1127 (Ind. Ct. App. 2009) (holding
defendant’s well-documented moderate mental retardation did not render
noncustodial statement to police involuntary, where officers were unaware of
and did not notice any mental deficiencies during questioning), trans. denied.
After the end of the second interview, there was some subterfuge involved in
driving Bruck back to the Sellersburg ISP post. By then, however, he had
already made incriminating statements, and he would have been arrested
immediately if Detectives Abbott and Mitchell had arrest powers in Kentucky.
Alternatively, he would have been arrested after returning to Indiana, regardless
of how he got there.
[31] We recognize that a suspect’s subjective thoughts are not dispositive on the
question of custody. Hicks, 882 N.E.2d at 241. However, we do believe Bruck’s
own testimony at the motion to suppress hearing is telling. He testified that he
voluntarily went to the conference room for the first interview, with no
coercion, and that no one told him to stay in the room after the first interview
was over. Also, no one came into the room or guarded the door, and Bruck
admitted that he could have gotten up and walked out the door. Bruck testified
that he voluntarily stayed at the hospital between the first and second
interviews, that he wanted to stay updated on Hayden’s status, and that no one
forced him to stay there. Bruck also said he was fully willing to give a second
statement, and that no one told him he had to do so or that he had to stay in the
room. Again, he admitted that he could have gotten up and left the room
during the second interview or left the hospital at the end of it. This testimony,
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 20 of 30 combined with the objective circumstances, leads us to readily conclude that
Bruck was not in custody when he gave the second interview, even if the
atmosphere became confrontational during that interview. Thus, he did not
have to be Mirandized before or during that interview. Because that second
statement was properly obtained and is consistent with his third, Mirandized
statement, we need not address that third statement.4 The trial court properly
denied Bruck’s motion to suppress and admitted his police statements into
evidence.
II. Corpus Delicti
[32] Next, we address Bruck’s claim that his statements to police were inadmissible
on the alternative ground that the State failed to establish a sufficient corpus
delicti for their admission. Our supreme court recently described the corpus
delicit rule as follows:
In Indiana, a person may not be convicted of a crime based solely on a nonjudicial confession of guilt. Rather, independent proof of the corpus delicti is required before the defendant may be convicted upon a nonjudicial confession. Proof of the corpus delicti means “proof that the specific crime charged has actually been committed by someone.” Thus, admission of a confession requires some independent evidence of commission of the crime charged. The independent evidence need not prove that a crime was committed beyond a reasonable doubt, but merely provide
4 We do take a moment, however, to strongly advise against police officers telling a suspect who is in custody that a waiver of his or her Miranda rights is a mere “formality,” as Detective Abbott told Bruck. A suspect’s constitutional rights and any waiver thereof should never be taken lightly.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 21 of 30 an inference that the crime charged was committed. This inference may be created by circumstantial evidence.
Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017) (quoting Walker v. State, 249
Ind. 551, 559, 233 N.E.2d 483, 488 (1968)) (other citations omitted).
[33] The crux of Bruck’s argument is that there is no independent evidence that he
committed these offenses, aside from his extrajudicial police statements. This
confuses the corpus delicti rule for the admission of confessions, as opposed to
the rule for sufficient evidence to support a conviction. See id. at 844. Under
the corpus delicti rule for the admission of confessions, there need only be
evidence that the charged crime was committed by someone, not that the
defendant committed the crime. See Walker, 249 Ind. at 559, 233 N.E.2d at 488;
Messel v. State, 176 Ind. 214, 217, 95 N.E. 565, 566 (1911). Where there has
been a death, a sufficient corpus delicti that the death was the result of a crime
may be established by evidence that the dead body had marks of violence, or
the surrounding circumstances indicate the deceased did not die from natural
causes. Jones v. State, 253 Ind. 235, 246, 252 N.E.2d 572, 578 (1969) (quoting
Brown v. State, 239 Ind. 184, 190, 154 N.E.2d 720, 722 (1958), cert. denied), cert.
denied.
[34] Here, five medical doctors opined that Hayden’s severe subdural hematoma,
eventually leading to his death, was the result of trauma. Those doctors were
specialists in emergency medicine, pediatric neurosurgery, pathology, and child
abuse. Several doctors compared his injury to ones sustained in a car crash or a
multi-story fall. However, there was no evidence of Hayden having been in Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 22 of 30 such a crash or taking such a fall. Several doctors also discounted the
possibility that his death could have been the result of natural causes or
something more minor, such as falling down a few steps. Thus, an inference
clearly could have been made that Hayden’s death was the result of a battery—
a strike on his head—committed by someone. As such, a sufficient corpus
delicti was established to allow the admission of Bruck’s confession that he was
the someone who struck Hayden in the head.
III. Admission of Dr. Currie’s Testimony
[35] Bruck also challenges the admission of Dr. Currie’s testimony and
accompanying written report, giving her opinion that Hayden’s subdural
hematoma and death could have been caused by a strike to the head if
committed with sufficient force. We first note that it is unclear Dr. Currie’s
testimony and report, even if erroneously admitted, would be reversible error.
The erroneous admission of evidence is harmless if was unlikely to have had a
substantial impact upon the jury in light of all the other, properly-presented
evidence. Williams v. State, 43 N.E.3d 578, 583 (Ind. 2015). Generally, the
erroneous admission of evidence that is cumulative of other evidence does not
constitute reversible error. Hoglund v. State, 962 N.E.2d 1230, 1240 (Ind. 2012).
Here, four other expert witnesses, medical doctors besides Dr. Currie, gave their
opinions regarding the nature and cause of Hayden’s injury and resulting death.
Bruck does not challenge the admissibility of any of their testimony. Drs.
Gump and Burrows-Beckham, in particular, gave very detailed testimony
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 23 of 30 regarding the cause of Hayden’s death. Dr. Currie’s testimony was largely
cumulative of theirs.
[36] In any event, Bruck’s challenge to Dr. Currie’s testimony circles back to his
unsuccessful corpus delicti argument. Bruck does not challenge Dr. Currie’s
qualifications as an expert witness, but he does contest her reliance upon
Bruck’s police statements describing how he struck Hayden in the head in
stating an opinion on whether such action could have caused Hayden’s injury
and death. Under Indiana Evidence Rule 703, “[a]n expert may base an
opinion on facts or data in the case that the expert has been made aware of or
personally observed. Experts may testify to opinions based on inadmissible
evidence, provided that it is of the type reasonably relied upon by experts in the
field.” Bruck contends that, because a corpus delicti was lacking, Dr. Currie
could not rely on his police statements. But, as we discussed, there is ample
evidence of a sufficient corpus delicti to permit the admission of those
statements. Thus, there was no bar to Dr. Currie relying upon those
statements.
IV. Public Funds to Hire Expert Witness
[37] Bruck next contends that the trial court erred in denying his request for $5000 in
public funds to hire an expert witness of his own to counter the State’s experts.
The decision of whether to approve the expenditure of public funds to hire an
expert witness for an indigent defendant is within the trial court’s discretion.
Griffith v. State, 59 N.E.3d 947, 956 (Ind. 2016). A defendant is not entitled to
any and all experts he may wish to have and bears the burden of demonstrating Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 24 of 30 a need for such a witness. Id. Factors a trial court may consider in deciding
whether to allow the hiring of an expert at public expense include:
(1) whether the services would bear on an issue generally regarded to be within the common experience of the average person, or on one for which an expert opinion would be necessary; (2) whether the requested expert services could nonetheless be performed by counsel; (3) whether the proposed expert could demonstrate that which the defendant desires from the expert; (4) whether the purpose for the expert appears to be only exploratory; (5) whether the expert services will go toward answering a substantial question in the case or simply an ancillary one; (6) the seriousness of the charge; (7) whether the State is relying upon an expert and expending substantial resources on the case; (8) whether a defendant with monetary resources would choose to hire such an expert; (9) the costs of the expert services; (10) the timeliness of the request for the expert and whether it was made in good faith; and (11) whether there is cumulative evidence of the defendant’s guilt.
Kocielko v. State, 938 N.E.2d 243, 254-55 (Ind. Ct. App. 2010), aff’d in relevant
part on reh’g, 943 N.E.2d 1282 (Ind. Ct. App. 2011), trans. denied. Even if certain
factors would weigh in favor of hiring of an expert, the factors as a whole may
be insufficient to require doing so. Id. at 255.
[38] Certain of the above factors weigh strongly in favor of granting Bruck’s request,
such as the medical issues being outside the expertise of the average person, the
seriousness of the charges, and the substantial question in this case of the cause
of Hayden’s death. Certain other factors, however, weigh against granting the
request. First, Bruck failed to establish that he wished to hire an expert for
anything other than “exploratory” purposes. As counsel represented to the trial Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 25 of 30 court when making the motion, “right now we’re simply looking to hire a
doctor to evaluate the evidence to determine whether there might be a rebuttal to
the opinions that we received in deposition.” Tr. Vol. II at 138-39 (emphasis
added). Second, it appears from the record that defense counsel was able to
thoroughly cross-examine the State’s expert witnesses without the benefit of
having an opposing expert witness; he questioned the doctors at length about
possible other causes of Hayden’s injuries, including a link to his DiGeorge
Syndrome. Finally, we cannot ignore that Bruck did not make this request until
the end of the first day of trial. Our supreme court has clearly stated, “[a] court
need not appoint an expert if the defendant’s request is untimely or not made in
good faith.” Scott v. State, 593 N.E.2d 198, 201 (Ind. 1992). It is difficult to
fathom why Bruck could not have made this request at an earlier time, in a case
that had been pending for over a year-and-a-half, and in which it should have
been clear from the outset that medical evidence as to the cause of Hayden’s
injury and death would be key to the State’s case. As such, although this is a
case in which an expert might have been appointed, it was not abuse of
discretion for the trial court to deny Bruck’s request for public funds to hire one.
The request was untimely.
V. Sentence
[39] Finally, Bruck challenges the propriety of his forty-two-and-a-half-year
sentence. Although Bruck invokes Indiana Appellate Rule 7(B), his entire
argument is based on claims that the trial court overlooked mitigating
circumstances and relied upon improper aggravating circumstances. This is an
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 26 of 30 abuse of discretion claim, not an inappropriate sentence claim. See Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on r’hg, 875 N.E.2d 218 (Ind. 2007).
Abuse of discretion and inappropriate sentence claims are to be analyzed
separately; Bruck fails to make a cogent argument regarding whether his
sentence is inappropriate and so he has waived review of that issue. 5 See Keller
v. State, 987 N.E.2d 1099, 1121 n.11 (Ind. Ct. App. 2013), trans. denied. An
abuse of discretion in identifying or not identifying aggravators and mitigators
occurs if it is “‘clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.’” Anglemyer, 868 N.E.2d at 490 (quoting K.S. v. State, 849 N.E.2d
538, 544 (Ind. 2006)).
[40] One of the alleged mitigating circumstances Bruck claims the trial court
overlooked is a conclusion by the probation department, based on the Indiana
Risk Assessment System (“IRAS”), that he was at a low risk to reoffend.
However, “[e]vidence-based offender assessment scores are not to be considered
aggravating or mitigating factors to determine the gross length of a sentence.”
Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013) (citing Malenchik
v. State, 928 N.E.2d 564, 575 (Ind. 2010)).6
5 Bruck’s reply brief contains slightly more argument with respect to Rule 7(B), but a party cannot raise new issues in a reply brief. See Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011). 6 Such tests and their scores may be used when determining the manner in which a sentence is to be served. Williams, 997 N.E.2d at 1165.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 27 of 30 [41] Bruck also argues that the trial court should have found as mitigating that
imprisonment would result in a hardship to his other dependents. Trial courts
are not required to find a defendant’s incarceration would result in undue
hardship on his dependents. Weaver v. State, 845 N.E.2d 1066, 1074 (Ind. Ct.
App. 2006), trans. denied. “[T]his mitigator can properly be assigned no weight
when the defendant fails to show why incarceration for a particular term will
cause more hardship than incarceration for a shorter term.” Id. Here, Bruck
was facing a minimum sentence of twenty years for his Level 1 felony
conviction and an advisory term of thirty years. See Ind. Code 35-50-2-4(b). In
terms of hardship to Bruck’s dependents, there is not a significant difference
between a term of twenty and forty years. The trial court did not abuse its
discretion in failing to recognize this factor as a mitigating circumstance.
[42] Bruck also suggests that his alleged mental disability should have been
considered by the trial court. A trial court does not have to accept a defendant’s
claim of mental disability where the evidence regarding it is highly disputable in
nature, weight, or significance. Smith v. State, 670 N.E.2d 7, 8 (Ind. 1996).
Also, in order for a defendant’s mental history to be mitigating, “there must be
a nexus between the defendant’s mental health and the crime in question.”
Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App. 2011), trans. denied. There
is scant evidence in the record regarding the extent of Bruck’s alleged mental
retardation or whether it had any nexus to the offenses here. He apparently
dropped out of school in the 11th grade and was diagnosed as “mildly mentally
retarded” at age eighteen. App. p. 40. We cannot say this small bit of
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 28 of 30 information required the trial court to find Bruck’s mental health to be a
mitigating circumstance.7
[43] Finally, Bruck contends the trial court erred in finding Hayden’s age to be an
aggravating circumstance. He notes that the age of the victim is an element of
the offense of Level 1 aggravated battery resulting in the death of a child. See
I.C. § 35-42-2-1.5 (making aggravated battery a Level 1 felony if the victim is
less than fourteen and the defendant is at least eighteen). However, the young
age of a victim may be considered an aggravating circumstance where the
victim is well below the age that is an element of the offense. See Kien v. State,
782 N.E.2d 398, 414 (Ind. Ct. App. 2003) (holding trial court properly
considered four-year-old molestation victim’s young age as an aggravating
circumstance), trans. denied. The trial court did not abuse its discretion in
considering Hayden’s age as an aggravating circumstance as it was well below
the fourteen-year-old threshold for Level 1 felony aggravated battery resulting in
the death of a child.
Conclusion [44] Bruck was not in custody when he gave his critical, inculpatory second
statement to police and, therefore, he did not have to be given Miranda
warnings beforehand. The trial court properly admitted his police statements
7 Bruck also suggests his mental retardation could have been related to a brain injury of some kind, but he directs us to no evidence in the record to support such a claim.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 29 of 30 into evidence. There also was a sufficient corpus delicti to support introduction
of those statements into evidence and to serve as a basis for Dr. Currie’s expert
opinions. The trial court did not abuse its discretion in denying Bruck’s request
for public funds to hire an expert witness, and it also did not abuse its discretion
in sentencing Bruck. We affirm in all respects.
[45] Affirmed.
May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017 Page 30 of 30