MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 21 2017, 6:42 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Oliver Younge Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Schafer, March 21, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1605-CR-1143 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff. Hawkins, Judge Trial Court Cause No. 49G05-1409-MR-42291
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 1 of 31 STATEMENT OF THE CASE [1] Appellant-Defendant, Christopher Schafer (Schafer), appeals his conviction for
murder, a felony, Ind. Code § 35-42-1-1(1); and battery with death of a person
less than fourteen, a Level 2 felony, I.C. § 35-42-2-1(b)(1).
[2] We affirm.
ISSUES [3] Schafer raises seven issues on appeal, which we consolidate and restate as the
following six issues:
(1) Whether the trial court disclosed bias and a lack of impartiality when
making certain statements during the proceedings;
(2) Whether the trial court abused its discretion by admitting Schafer’s
statements to the police officers into evidence;
(3) Whether the trial court abused its discretion by admitting certain
evidence of prior misconduct pursuant to Indiana Rules of Evidence
404(b);
(4) Whether the trial court abused its discretion by admitting Schafer’s jail
phone call to his mother into evidence;
(5) Whether the State failed to preserve certain materially exculpatory
evidence; and
(6) Whether the State presented sufficient evidence beyond a reasonable
doubt to support Schafer’s conviction for murder and battery with death
of a person less than fourteen.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 2 of 31 FACTS AND PROCEDURAL HISTORY [4] On September 2, 2014, Schafer and Skye Johnson (Johnson) lived in
Indianapolis, Indiana, with their ten-week old daughter, G.S., and Johnson’s
two children from a previous relationship, two-year old K.G. and one-year-old
J.G. Johnson watched the children during the day and worked evening shifts at
a local restaurant, while Schafer worked opposite shifts.
[5] On August 29, 2014, Johnson took G.S. to the hospital where a CT scan was
taken. G.S. was diagnosed with acid reflux disease. While she was not
prescribed any medication, Johnson received suggestions of alternate ways of
feeding G.S. to help with her acid reflux. The hospital personnel also noted a
bruise on G.S.’s eyebrow and Johnson spoke with a social worker. Johnson
explained that the bruise was the result of being hit with a plastic block by J.G.
[6] On September 2, 2014, Johnson’s friend, Aaron Hawkins (Hawkins), visited the
apartment and brought lunch for the family. Hawkins did not observe any
injuries on G.S. when he left at 1:00 p.m. During the afternoon, Johnson
breastfed G.S. at 1:00 p.m. and again at 4:00 p.m., right before she left for work.
Schafer arrived home from work at 4:15 p.m. and, at that time, G.S. was asleep
in the swing in the living room. At approximately 8:45 p.m., Johnson began
receiving text messages from Schafer, expressing his growing frustration with
G.S. because he had problems feeding her. Johnson suggested different ideas
on how to feed her, and around 10:30 p.m. Schafer let her know that G.S. was
eating.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 3 of 31 [7] Johnson finished her shift around midnight but lingered with co-workers in the
parking lot for about thirty to forty-five minutes before driving home, ignoring
several phone calls from Schafer. When she was on her way home, she
accepted a call from Schafer, who informed her that G.S. was “unresponsive”
and “he didn’t know what to do.” (Transcript p. 143). Johnson advised
Schafer to call 911. When she arrived home, the police were not yet there. As
she ran inside the apartment, Schafer was on the phone with the paramedics
who were giving him instructions on performing CPR. G.S. was on the counter
on the right side of the stove, and noticing “the color of skin, [Johnson] knew
[G.S.] had passed away.” (Tr. p. 145). Johnson ran back outside to wait for
the police and paramedics to arrive.
[8] When the police and paramedics arrived, Schafer and Johnson were advised to
wait outside. Schafer told Johnson that he “had gotten [G.S.] to fall asleep on
his chest while he was laying on the couch.” (Tr. p. 146). Because he didn’t
want to disturb G.S. by getting up, he ended up falling asleep on the couch too.
When Schafer woke up, he found G.S. “squished in between him and the back
of the couch.” (Tr. p. 146). Schafer told Johnson that G.S. “was convulsing
trying to get air” and “he tried to get [G.S] to start breathing.” (Tr. pp. 147,
146). The paramedics attempted CPR and ventilations on G.S. in the
ambulance after removing some of her clothing. G.S. had bruising around her
eyes, nose, chest and “yellowish, blue bruising to the left side of her head.” (Tr.
p. 118). G.S. was transported to Community North Hospital, where she arrived
in cardiac arrest. Attempts to restart her heart failed and she was pronounced
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 4 of 31 dead at 1:47 a.m. on September 3, 2014. Dr. Paula Wilham (Dr. Wilham), the
receiving physician when G.S. was brought into the emergency room, was
concerned about the bruising on G.S.’s neck and chest because a child that age
cannot roll over or sit up and can barely hold her head up for short periods of
time. G.S. had old as well as new bruising on her head and back, petechiae
under her eyes, bilateral subdural hemorrhages, brain swelling, and a fractured
femur. With these injuries, G.S. would have cried inconsolably, “because that
would be her only way of communicating that something was wrong.” (Tr. pp.
183-84). At the hospital, Indianapolis Metropolitan Police Detective Douglas
Cook (Detective Cook) was informed by Dr. Wilham and the Deputy Coroner
about the extent of G.S.’s injuries.
[9] While G.S. was transported to the hospital, Johnson and Schafer were
interviewed by Indianapolis Metropolitan Police Detectives. Schafer’s
interview took place inside Detective Brian Schemenaur’s (Detective
Schemenaur) police vehicle and was recorded. At that point, Detective
Schemenaur was unaware of the extent of G.S.’s injuries. Schafer informed
Detective Schemenaur that G.S.’s health was “fine” when he arrived home that
afternoon and that G.S. was asleep in the swing after being breastfed by
Johnson. (Tr. p. 257). He advised the Detective that J.G. had hit G.S. in the
face with a small plastic toy bird, “causing a small cut or laceration above the
lip area.” (Tr. p. 258). He then described the couch incident where he had
fallen asleep and then awoken to find G.S. “pinned face first into the couch
between his body and the couch.” (Tr. p. 259).
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 5 of 31 [10] After the interview ended, Detective Schemenaur received “information from
Detective Cook that led [him] to believe that [Schafer] was not telling the
truth.” (Tr. p. 260). At that point, “the nature of the investigation took a
different course” and it became necessary to transport the parents down to the
homicide office were “an audio and video recorded statement following them
both being mirandized and done in a formal setting” could occur. (Tr. p. 260).
Before the interviews took place, both Schafer and Johnson were tested for
fifteen different types of drugs and were found to be negative for all tested
substances.
[11] During the second interview at the police station, Schafer was read his Miranda
rights, and he signed a waiver form. When confronted with the extent of G.S.’s
injuries by Detective Cook and Dr. Wilham’s opinion that these could not have
been sustained by a rollover, Schafer’s explanation changed. Schafer told the
detectives that he had been “laying down horizontally” on the couch, with his
head resting on a pillow. (Appellant’s App. p. 55). G.S. was on his chest,
facing up, and had fallen asleep on her back. (Appellant’s App. p. 55). When
Schafer woke up, his “body pressed up against her, with her head facing
towards the back of the chair.” (Appellant’s App. p. 56). “She was gasping for
air at the time, but it was almost like a really week gasp” and her “[e]yelids
were blue.” (Appellant’s App. p. 56). Schafer took G.S. into the kitchen where
he placed her on the counter and then went to “grab [his] phone.” (Appellant’s
App. p. 80). Not being able to find his phone, Schafer thought that it might
have fallen down the cushions of the couch. He “went to go look for it and it
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 6 of 31 took [him] a little longer than [] expected.” (Appellant’s App. p. 80). When he
returned to the kitchen, G.S. was laying face down on the kitchen floor. Later
during the interview, Schafer added that when he woke up on the couch, he
shook G.S. from side to side. He also mentioned shaking G.S. after she had
fallen off the kitchen counter. Then, he changed his story again, telling the
Detectives that he never shook G.S. A little while later, Schafer explained that
he had been trying to feed G.S. and he got “frustrated.” (Appellant’s App. p.
108). “[He] would get frustrated really bad because [he] want her to eat because
if she doesn’t eat, she’d get sick.” (Appellant’s App. p. 108). After Schafer
woke up on the couch, G.S was crying, but it was more “a whimper or
something.” (Appellant’s App. p. 111). He “tried to feed her again what was
left. And she wouldn’t eat it.” (Appellant’s App. p. 111). And he “was dealing
with this all night. [He] got really upset and [he] got really frustrated.”
(Appellant’s App. p. 112). He admitted that G.S. never became “wedged
between [him] and the couch cushion.” (Appellant’s App. p. 112). He
explained that when he stood up from the couch, G.S. was in his lap. He put
his weight on the baby—“like crushed her” and “wedged [her] underneath”
him. (Appellant’s App. p. 113). G.S. “was gasping for air [] but it was []
weak.” (Appellant’s App. p. 114). Schafer picked her up and G.S. started
bleeding out of her nose.
[12] On September 3, 2014, the State filed an Information, charging Schafer with
Count I, murder, a felony; Count II, neglect of a dependent, a Level 1 felony;
and Count III, battery with death of a person less than fourteen, a Level 2
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 7 of 31 felony. On March 11, 2016, Schafer waived his right to a jury trial. Six days
before trial, Schafer called his mother from jail, using another inmate’s PIN.
During the conversation, 1 Schafer’s mother gave him “a fourth version of what
could have happened. That blames and tries to pin [Johnson] coming home at
11:30 at night while Schafer is asleep on the couch, causing all these injuries to
G.S., putting [G.S.] back on his chest so he can wake up to her at 12:30 and
that [Johnson] then disappears.” (Tr. p. 283). Schafer replied that he “wish[ed]
[he] would have thought of this earlier.” (Tr. p. 283).
[13] On April 18, 2016, the trial court conducted a bench trial. During the trial,
forensic pathologist Dr. Thomas Sozio (Dr. Sozio) testified about the autopsy
he had performed on G.S. He determined that G.S. had sustained “multiple
areas of blunt force trauma, meaning contusions and bleeding, around the
face.” (Tr. p. 307). He also observed a torn frenulum, which is “that area of
skin [] that is attaching the lip to the gum,” and which could have been caused
by “[f]orceful penetration with a bottle.” (Tr. p. 311). “It’s usually always seen
with a child abuse case.” (Tr. p. 311). On her left chest, G.S. had injuries that
could not have been caused by CPR, but had to have been caused by blunt force
trauma. Dr. Sozio also testified to G.S.’s femur fracture, which he described as
a spiral fracture, caused by a twisting external force, and which would have
resulted in “extreme pain, crying profusely, [and] not eating.” (Tr p. 315). Dr.
1 A summary of this conversation was presented by the State during trial. Schafer agreed that this was “a fair summary” and the trial court accepted the synopsis into the record as a summation of the content of the conversation. (Tr. p. 283).
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 8 of 31 Sozio opined that G.S.’s skull was not fractured, but there was subdural and
subarachnoid hemorrhage underneath the skull, which had been caused by
“any type of shaking injury.” (Tr. p. 319). G.S.’s brain had undergone “severe
swelling” to the point her brain “was forcibly [] protruding through any orifice
or hole that it could find []—in this case, the spinal cord.” (Tr. p. 319).
Immediately after the brain injury, G.S. would have experienced “a loss of
consciousness, not able to eat, [] maybe projectile vomiting, [and] problems
breathing.” (Tr. p. 320). She would not “have survived for any period of
hours.” (Tr. p. 320). Dr. Sozio ruled out Schafer’s couch explanation or fall
from the kitchen counter as cause of the injuries and concluded that this injury
could not have been caused accidentally. Rather, Dr. Sozio affirmed that the
cause of death was a combination of the blunt force trauma to the head and the
femur fracture, with the manner of death being homicide.
[14] Dr. Tara Harris (Dr. Harris), board certified in child abuse pediatrics, testified
that G.S.’s injuries were representative of abusive head trauma with additional
evidence of severe physical abuse. She also opined that neither being hit with a
plastic toy by a toddler, nor falling from the kitchen counter could have caused
G.S.’s head injuries. Dr. Harris explained that when G.S.’s brain was being
pushed into her spinal cord, the brain stem—which is “responsible for all the
things that our body does without us having to think about it”—became
damaged. (Tr. p. 353). “And you stop getting the signal telling your heart to
beat and all of those important functions for life.” (Tr. p. 354). She noted that
the hermorhaging underneath G.S.’s skull had been caused by “blunt impact to
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 9 of 31 the head.” (Tr. p. 354). In order to cause some of these injuries “[s]he had to
have impact with objects [] not just shaking.” (Tr. p. 374). Because G.S. had
breastfed fine in the afternoon, Dr. Harris placed the time of the injuries “after
4:30 [p.m.]” (Tr. p. 355). She concluded that “[t]here was no history of any
accident that would account” for G.S.’s injuries and it “would take a significant
force” to fracture her femur. (Tr. pp. 358, 361).
[15] At the close of the evidence, the trial court found Schafer guilty of murder and
battery with death of a person less than fourteen. On May 2, 2016, the trial
court conducted a sentencing hearing and imposed a sentence of sixty years for
murder, with five years suspended and 6,385 days’ incarceration for battery,
with sentences to run concurrent.
[16] Schafer now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Trial Court’s Bias and Lack of Impartiality
[17] Schafer first contends that the trial court was biased and exhibited a lack of
impartiality by making certain comments throughout the proceedings and
during the sentencing hearing, thereby violating his right to a fair trial. A trial
before an impartial judge is an essential element of due process. Everling v.
State, 929 N.E.2d 1281, 1287 (Ind. 2010). The impartiality of a trial court is
especially important due to the great respect that a jury accords the judge and
the added significance that a jury might give to any showing of partiality by the
judge. Id. at 1287-88. Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 10 of 31 [18] In assessing a trial court’s partiality, we examine the judge’s actions and
demeanor while recognizing the need for latitude to run the courtroom and
maintain discipline and control of the trial. Id. at 1288. “Even where the
court’s remarks display a degree of impatience, if in the context of a particular
trial they do not impart an appearance of partiality, they may be permissible to
promote an orderly progression of events at trial.” Timberlake v. State, 690
N.E.2d 243, 256 (Ind. 1997), reh’g denied. Bias and prejudice violate a
defendant’s due process right to a fair trial only where there is an undisputed
claim or where the judge expressed an opinion of the controversy over which
the judge was presiding. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002).
Adverse rulings and findings by a trial judge from past proceedings with respect
to a particular party are generally not sufficient reasons to believe the judge has
a personal bias or prejudice. Voss v. State, 856 N.E.2d 1211, 1217 (Ind. 2006).
The mere assertion that certain adverse rulings by a judge constitute bias and
prejudice does not establish the requisite showing. Id.
[19] However, in order to prevail, a defendant has to make a contemporaneous
objection to the presumed biased remark. Where a defendant fails to object or
otherwise challenge a trial court’s remarks, any alleged error is waived on
appeal. Garrett v. State, 737 N.E.2d 388, 390 (Ind. 2000). Here, Schafer
concedes to not having objected to the remarks. Knowing that he waived the
issue, he now argues that the alleged biased remarks amounted to fundamental
error. Fundamental error is error that represents a blatant violation of basic
principles rendering the trial unfair to the defendant and thereby depriving the
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 11 of 31 defendant of fundamental due process. Davis v. State, 835 N.E.2d 1102, 1107
(Ind. Ct. App. 2005), trans. denied. The error must be so prejudicial to the rights
of the defendant as to make a fair trial impossible. Id. In determining whether
a claimed error denies the defendant a fair trial, we consider whether the
resulting harm or potential for harm is substantial. Id. This depends upon
whether the defendant’s right to a fair trial was detrimentally affected by the
denial of procedural opportunities for the ascertainment of truth to which he
would have been entitled. Id.
[20] Schafer points to three specific remarks made by the trial court, which,
according to his argument, reflected bias and lack of impartiality towards him
and resulted in an unfair trial. The first comment challenged by Schafer was
uttered during the State’s introduction of Schafer’s text messages. During the
trial, the State offered Exhibits 49 and 50, print outs of specific text messages,
into evidence, as well Exhibit 41, which was a cell phone report. The trial court
questioned the State about the text messages represented in Exhibits 49 and 50
and asked, “So these aren’t the texts that have to do with him being frustrated
and beating the child?” (Tr. p. 140). Schafer claims that the remark about him
being frustrated and beating G.S. indicated that the trial court had already
formed “a prejudicial impression of bad character[.]” (Appellant’s Br. p. 16).
[21] Placed in the proper context, we cannot agree that the statement reflected
judicial bias. Rather, at that point in the trial, the trial judge was well aware of
the charges and had heard the parties’ opening statements previewing the
evidence during which the State had already indicated that G.S. had suffered
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 12 of 31 multiple injuries. The trial judge had also heard Johnson’s testimony about
Schafer’s text messages on September 2nd and 3rd. Accordingly, in asking the
question, the trial court merely attempted to place the exhibits in the proper
context of the evidence presented. We perceive no bias or lack of impartiality.
[22] The second and third comments challenged by Schafer were remarks made by
the trial court during the sentencing hearing. Specifically, the trial court
remarked, “But what I heard in the interrogation doesn’t make me feel good
about him” and “he used a phone pin number to make that call to mom a week
before trial. That doesn’t say good things about his character.” (Tr. pp. 425,
425). Placed in the context of the sentencing hearing, it is clear that the trial
court was merely reflecting on the evidence in formulating its mitigators and
aggravators for sentencing. Accordingly, the remarks did not reflect any bias
but are just comments on what the evidence at trial established. Therefore,
there was no error, let alone a fundamental error. 2
II. Schafer’s Statements
[23] Prior to his arrest, Schafer made two statements to Detective Schemenaur: the
first one in Detective Schemenaur’s vehicle and the second one at the police
station. Schafer now claims that the trial court abused its discretion by
admitting both statements into evidence over his objection because the first
2 Schafer also claims fundamental error occurred with respect to some remarks the trial court made during the admissibility of Schafer’s jail call to his mother. We will address Schafer’s arguments when discussing the admissibility of the phone call.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 13 of 31 statement was given without the benefit of his Miranda warnings and the second
statement was obtained pursuant to interrogation tactics condemned in Missouri
v. Seibert, 542 U.S. 600, 611-14 (2004). Although Schafer filed a pre-trial
motion to suppress, because he appeals following a bench trial, the issue is
properly framed as whether the trial court abused its discretion in admitting the
evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). Accordingly, the
general admission of evidence at trial is a matter we leave to the discretion of
the trial court. Id. 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.
A. First Statement
[24] With respect to the statement given in Detective Schemenaur’s police vehicle,
Schafer claims that it amounted to a custodial interrogation during which he
was never advised of his Miranda rights.
[25] In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
the United States Supreme Court instructed: “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” These
“procedural safeguards” include advisements of the right to remain silent, that
any statement made may be used against the person, and of the right to the
presence of an attorney. Id. at 444. The purpose of Miranda warnings is to
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 14 of 31 secure the constitutional privilege against self-incrimination by providing
procedural safeguards to be employed during questioning initiated by officers
focusing on a person suspected of wrongdoing. Id. at 444. “[W]ithout proper
safeguards the process of in-custody interrogation of persons suspected or
accused of a crime contains inherently compelling pressures which work to
undermine the individual’s will to resist and to compel him to speak where he
would not otherwise do so freely.” Id. at 467. At the same time, Miranda also
recognizes that “[a]ny statement given freely and voluntarily without any
compelling influences is . . . admissible in evidence.” Id.
[26] A custodial interrogation for purposes of the Miranda procedural safeguards is
defined as “questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom or action in any
significant way.” Morales v. State, 749 N.E.2d 1260, 1265 (Ind. Ct. App. 2001).
Whether a criminal defendant is in custody turns on whether a reasonable
person in the same circumstances would not feel free to leave. Id. This inquiry
depends upon the “objective circumstances” as opposed to the subjective views
of the interrogating officers or the subject being questioned. Id. Under
Miranda, “interrogation” includes express questioning and words or actions on
the part of the police that the police know are reasonably likely to elicit an
incriminating response from the suspect. White v. State, 772 N.E.2d 408, 412
(Ind. 2002). Thus, “[p]olice officers are not required to give Miranda warnings
unless the defendant is both in custody and subject to interrogation.” Ritchie v.
State, 875 N.E.2d 706, 717 (Ind. 2007), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 15 of 31 [27] Schafer now maintains that by virtue of sitting in the police vehicle and
answering the detective’s questions, he was submitting to a custodial
interrogation. However, “[q]uestioning an individual the police suspect of a
crime does not inherently render the questioning custodial interrogation
requiring Miranda warnings.” Luna v State, 788 N.E.2d 832, 834 (Ind. 2003).
When the police first contacted Schafer, he was at his residence with family and
friends present. Schafer “was willing to talk [] and was responsive.” (Tr. p. 25).
Detective Schemenaur testified that it was “a normal routine process in [the]
investigation to do an audio recording at the scene or around the scene so that
[the officers] don’t have to remove the parents.” (Tr. p. 27). Schafer answered
Detective Schemenaur’s questions while seated in the front passenger seat of the
vehicle. During the conversation, Schafer “described basically an event that
was accidental in nature. That he had been co-sleeping with the child and that
he had rolled over on the child.” (Tr. p. 30). Schafer’s statement was
consistent and unwavering. Detective Schemenaur clarified that at no time
during the statement did Schafer become a suspect. When the conversation
was finished, Schafer exited the vehicle and joined his family and friends again.
Only after the first statement was concluded did Detective Schemenaur speak
with Detective Cook and became informed of the suspicious nature of some of
G.S.’s injuries. Based on these facts, we conclude that the first statement did
not amount to a custodial interrogation that required Miranda warnings.
B. Second Statement
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 16 of 31 [28] With respect to the second statement at the police station, Schafer contends that
it was obtained with an interrogation technique which had been disapproved of
by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 611-14
(2004). He argues that “he had been subjected to one continuous series of
custodial interrogations concerning the same incident, punctuated midstream
by an advice of rights much as described by the Seibert court.” (Appellant’s Br.
p. 28).
[29] In Seibert, police officers arrested a suspect in an arson/murder investigation
and refrained from giving her Miranda warnings. Id. at 2606. After questioning
the suspect for thirty to forty minutes, she finally admitted that the death caused
by the arson was not an accident. Id. The suspect was then given a twenty-
minute break, after which the police officer turned on a tape recorder and gave
her a Miranda warning. Id. The officer then resumed questioning her,
confronting her with her pre-Miranda statement. Id. Determining that this
second statement was inadmissible, the Supreme Court observed:
Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 17 of 31 Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.”
Id. at 2601. Following Seibert, in Drummond v. State, 831 N.E.2d 781, 783-84
(Ind. Ct. App. 2005), and King v. State, 844 N.E.2d 92, 98 (Ind. Ct. App. 2005),
we determined that a defendant’s statement was inadmissible when a defendant
only received Miranda warnings after he was subjected to a custodial
interrogation and had made incriminating statements.
[30] Schafer’s argument that he received Miranda warnings midstream during his
questioning by Detective Schemenaur at the police station is contradicted by the
record. The evidence reflects that after Schafer’s first statement, Detective
Schemenaur was satisfied with his explanation that he had accidentally rolled
over on to G.S. in his sleep. Only after Detective Schemenaur was advised by
Detective Cook of the suspicious nature of some of G.S.’s injuries, Detective
Schemenaur started to doubt the truthfulness of Schafer’s explanation. As a
result, there was a need for a second interview. Prior to commencing the
interview at the police station, Detective Schemenaur read Schafer his Miranda
rights. There was no continuing interrogation as the first interview had been
satisfactorily concluded until new evidence arose that indicated the need to
interview Schafer again. Prior to being confronted with the new evidence and
making incriminating statements, Schafer was given his Miranda advisements.
This was no ‘question first, warn later’ interrogation, nor was this a ruse to have
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 18 of 31 Schafer confess; rather, this was a second interview based on the evidence
discovered during an ongoing investigation. Accordingly, Seibert does not
apply.
[31] Continuing his focus on the second statement, Schafer maintains that the
statement was erroneously admitted because he did not knowingly and
voluntarily waive his Miranda rights. A waiver of one’s Miranda rights occurs
when the defendant, after being advised of those rights and acknowledging that
he understands them, proceeds to make a statement without taking advantage
of those rights. Ringo v. State, 736 N.E.2d 1209, 1211-1212 (Ind. 2000). The
admissibility of a confession is controlled by determining from the totality of
the circumstances whether the confession was made voluntarily and was not
induced by violence, threats, or other improper influences that overcame the
defendant’s free will. Id. at 1212. The same test determines whether Miranda
rights were voluntarily waived. Id. Thus, the voluntariness of a defendant’s
waiver of rights is judged by the totality of the circumstances. Id. Factors that
may be considered when reviewing the totality of the circumstances for whether
a waiver of rights was voluntary, include “police coercion, the length of the
interrogation, its location, its continuity, as well as the defendant’s maturity,
education, physical condition, and mental health.” State v. Keller, 845 N.E.2d
154, 165 (Ind. Ct. App. 2006). A signed waiver of rights form is one item
showing the accused was aware of and understood his rights. Ringo, 736
N.E.2d at 1212. When challenged, the State may need to show additional
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 19 of 31 evidence tending to prove that Defendant’s waiver and decision to speak were
voluntary. Id.
[32] The record indicates that prior to commencing the second interview, Detective
Schemenaur explained to Schafer that he had received new information which
required them to talk again. He explained that
the difference is, is we are no longer there, out in front of your residence where you are at. We have transported you away from that location. We’re down here. So it’s it’s a different setting. So consequently whenever we do that we do go over what’s called an advisement and waiver of rights document. And that’s basically just, you know [] any time we transport somebody down here and we have any additional follow-up questions we go through that document. So that’s what we’re going to do first. [] I’m going to read this document to you. And if you have any questions about it, please ask me.
(Appellant’s App. p. 42). Detective Schemenaur then proceeded to read the
advisement form to Schafer and asked Schafer if he understood his rights.
Schafer replied affirmatively and signed the waiver of rights. During the
suppression hearing, Schafer agreed that Detective Schemenaur had read him
the advisement form line by line. Schafer is not uneducated: he is a high
school graduate and attended college for a year. Besides some generalized
statements that the explanation of Detective Schemenaur for reading the
advisement form because “we’re down here” was confusing, Schafer fails to
point to any coercion or circumstances which would have overcome the
voluntariness of his waiver of rights. (Appellant’s App. p. 42). Based on the
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 20 of 31 evidence before us, we conclude that the trial court properly admitted Schafer’s
statements.
III. Admission of Prior Bad Act Evidence
[33] Schafer appears to argue that the trial court abused its discretion when it
admitted G.S.’s medical records and a selected reading of Schafer’s text
messages “outside the time window of the day leading up to the victim’s
death.” 3 (Appellant’s Br. p. 33). Referencing Indiana Evidence Rule 404(b),
Schafer contends that the medical records and text messages were irrelevant
and admitted solely to establish the improper purpose of showing action in
conformity therewith.
[34] Indiana Evidence Rule 404(b) provides, in pertinent part, that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]
The rule is “designed to prevent the jury from assessing a defendant’s present
guilt on the basis of his past propensities, the so-called ‘forbidden inference.’”
Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004), trans. denied. Thus, in
3 Schafer also claims that the trial court erroneously admitted the jail phone call to his mother in violation of Ind. Evidence Rule 404(b). However, as Schafer did not object to its admission on this ground at trial, his argument is waived. See Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000).
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 21 of 31 assessing the admissibility of evidence under Ind. Evidence Rule 404(b), the
trial court must: (1) determine whether the evidence of other crimes, wrongs, or
acts is relevant to a matter at issue other than the defendant’s propensity to
commit the charged act; and (2) balance the probative value of the evidence
against its prejudicial effect pursuant to Evid. R. 403. Id. To determine
whether the trial court abused its discretion, we employ the same test. Id.
[35] Our review of the record discloses that the State did not introduce G.S.’s
medical records of emergency room visits for August 23, 2014 or August 30,
2014 into evidence even though its 404(b) notice indicated an intent of doing so.
Accordingly, we will not address Schafer’s argument with respect to the
medical records. To the extent Schafer now challenges the testimony of Dr.
Harris where “she sponsored a summary of the child’s medical history that not
only contained a description of every major instance of medical treatment
received by the child, but also added her conclusion that the history suggested
abuse on those previous occasions,” Schafer did not object to the introduction
of the report at trial. (Appellant’s Br. p. 34). It is generally accepted that where
a defendant fails to object to the introduction of evidence, the defendant waives
the claim. See, e.g., Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996).
[36] Exhibits 46 through 49 consist of text messages between Johnson and Schafer
which the State introduced to establish Schafer’s intent, motive, and lack of
accident. Exhibit 46 are text messages dated August 25, 2014, in which Schafer
expressed frustration with G.S. and Johnson gave advice on what to do.
Specifically, faced with G.S.’s refusal to take a bottle, Schafer texted “I’m a
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 22 of 31 horrible fucking father to her. [I don’t know] what she[,]” to which Johnson
responded, “Walk with her. Give her an ounce change her wrap.” (State’s
Exh. 46). Exhibit 47 is a text message from Schafer to Johnson sent on August
28, 2014, in which he exclaimed:
[G.S.] won’t take the fucking bottle. She’s the most stubborn fucking baby ever.
You’re done breast feeding.
I can’t put up with this shit anymore. It’s not fair to me.
(State’s Exh. 47). In Exhibit 48, sent on August 29, 2014, Johnson queried
Schafer about a bruise on G.S.’s face, of which Schafer disavowed all
knowledge. Lastly, in Exhibit 49, also sent on August 29, 2014, Schafer again
expressed frustration with G.S.’s crying and refusal to take a bottle.
[37] At trial, the State sought the admission of these text messages
to show [Schafer’s] anger and his built up frustration relationship with his 9 week old. That is clearly by the case law that I cited in our 404B hearing, that is clearly to establish A) that there was a frustrating, hostile relationship, B) that this was not by accident, and that this was his mentality and him saying it was a mistake, him saying it was an accident. This clearly denotes it, in our opinion, that it wasn’t an accident.
(Tr. pp. 225-26). Schafer objected to the admission of the texts based on
relevancy and to being more prejudicial than probative. The trial court
admitted the Exhibits over Schafer’s objection.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 23 of 31 [38] We conclude that the trial court properly admitted Exhibits 46 through 49
pursuant to Evid. R. 404(b). The Exhibits clearly have a bearing on Schafer’s
defense theory that G.S.’s death was accidental rather than intentional as the
text messages paint a situation at home characterized by Schafer’s growing
frustration and anger with his infant daughter. As such, Schafer’s state of mind
leading up to the events on the night of September 2, 2014, are relevant and
probative to establish intent and the absence of an accident. Schafer now
argues that the admission of an “extremely small sample size” of text messages
is prejudicial and selective as it would “allow for maximum manipulation of
impact on the listener with isolated, often out of context, expressions that did
not necessarily reflect the defendant’s true or ongoing character or state of
mind.” (Appellant’s Br. p. 37). Because Schafer failed to raise this argument
before the trial court, his claim is waived. See Lehman v. State, 730 N.E.2d 701,
703 (Ind. 2000) (“When [] a defendant presents one argument at trial and a
different argument on appeal, the claims are forfeited.”).
IV. Phone Call from Jail
[39] Next, Schafer challenges the admissibility of the phone call he placed from jail
to his mother because it was untimely disclosed to his defense counsel. Trial
courts are given wide discretion in discovery matters because they have the duty
to promote the discovery of truth and to guide and control the proceedings. Dye
v. State, 717 N.E.2d 5, 11 (Ind. 1999), cert. denied 531 U.S. 957 (2000). They are
granted deference in determining what constitutes substantial compliance with
discovery orders, and we will affirm their determinations as to violations and
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 24 of 31 sanctions absent clear error and resulting prejudice. Id. When remedial
measures are warranted, a continuance is usually the proper remedy, but
exclusion of evidence may be appropriate where the violation has been flagrant
and deliberate, or so misleading or in such bad faith as to impair the right of fair
trial. Id. Exclusion of evidence as a remedy for a discovery violation is only
proper where there is a showing that the State’s actions were deliberate or
otherwise reprehensible, and this conduct prevented the defendant from
receiving a fair trial. Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000).
[40] Six days before trial, on April 12, 2016, Schafer called his mother from jail,
using another inmate’s PIN. During the conversation, Schafer’s mother
advised him of a possible “fourth version of what could have happened.” (Tr.
p. 283). The State received notification of the existence of this phone call on
Wednesday, April 13, 2016, and certified the call by late afternoon of the
following day. The phone call was discovered by the State to Schafer’s counsel
on Friday, April 15, by 1:25 p.m. Schafer’s trial commenced Monday, April
18, 2016. When the State requested to admit the phone call, Schafer objected
based on relevancy, late discovery, and the fact that the sponsoring witness was
not a voice recognition expert. The trial court admitted the phone call over
objection, finding that “[i]n terms of the delay it’s not unconscionable. [The
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 25 of 31 State] got notice, she did what she had to do. She followed the procedure[.]”
(Tr. p. 280). 4
[41] The State turned over the evidence as soon as it was discovered. Moreover,
Schafer does not allege that he was taken by surprise by the evidence at trial,
rather his counsel admitted to having listened to the phone call prior to trial.
“There is no error when the State provides a defendant evidence as soon as the
State is in possession of requested evidence.” Id. Accordingly, the State
properly admitted the phone call.
V. Exculpatory Evidence
[42] Schafer appears to contend that his due process rights were violated by the
State’s failure to preserve materially exculpatory evidence stored on Johnson’s
and Schafer’s cell phones. Evidence is materially exculpatory if it possesses an
exculpatory value that was apparent before the evidence was destroyed and is of
such a nature that the defendant would be unable to obtain comparable
evidence by other reasonable available means. Terry v. State, 857 N.E.2d 396,
406 (Ind. Ct. App. 2006), trans. denied. When the State fails to preserve
materially exculpatory evidence, a due process violation occurs regardless of
whether the State acted in bad faith. Id. While the defendant is not required to
prove conclusively that the destroyed evidence is exculpatory, there must be
4 Schafer claims that this statement is a clear instance of bias and lack of impartiality by the trial court. As with his previous claims of bias, we also reject this one as the trial court merely made a procedural decision on the late discovery and admissibility of the phone call.
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 26 of 31 some indication of its exculpatory nature. Blanchard v. State, 802 N.E.2d 14, 27
(Ind. Ct. App. 2004). If the defendant fails to demonstrate the evidence’s
exculpatory nature, we will not simply assume that the destroyed evidence
contained exculpatory material when the record is devoid of such indication.
Id. In Chissel v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied,
we held that videotapes of the defendant taking field sobriety tests were not
materially exculpatory because the defendant presented no evidence that the
tapes would show him passing the tests, and instead asked us to speculate as to
the tapes’ contents.
[43] The State seized Schafer’s cell phone as soon as it became aware of its existence
and location. After obtaining a search warrant, it extracted the data from
Schafer’s phone. Instead of explaining what data the State lost and how it
could have been exculpatory, Schafer’s argument focuses on text messages that
were located and admitted over his objection, as well as text messages that
neither party entered into evidence. Schafer’s entire argument appears to be a
mere speculation of what could have happened if certain pieces of evidence
might exist. As Schafer presents no evidence of the existence of exculpatory
text messages or their content, his due process rights were not violated.
VI. Sufficiency of the Evidence
[44] Lastly, Schafer contends that the State failed to present sufficient evidence
beyond a reasonable doubt to support his conviction for murder and battery
leading to the death of a person less than fourteen. Our standard of review for a
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 27 of 31 sufficiency of the evidence claim is well settled. In reviewing sufficiency of the
evidence claims, we will not reweigh the evidence or assess the credibility of the
witnesses. Moore v. State, 869 N.E.2d 489, 492 (Ind. Ct. App. 2007). We will
consider only the evidence most favorable to the judgment, together with all
reasonable and logical inferences to be drawn thereof. Id. The conviction will
be affirmed if there is substantial evidence of probative value to support the
conviction of the trier of fact. Id.
[45] To support a conviction for murder, the State was required to establish that
Schafer knowingly or intentionally killed G.S. See I.C. § 35-42-1-1.
Furthermore, “[a] person who knowingly or intentionally inflicts injury on a
person that creates a substantial risk of death or causes: (1) serious permanent
disfigurement; (2) protracted loss or impairment of the function of a bodily
member or organ; or (3) the loss of a fetus; commits aggravated battery, a Level
3 felony.” I.C. § 35-42-2-1.5. This offense becomes a “Level 1 felony, if, as
here, it results in the death of a child less than fourteen (14) years of age and is
committed by a person at least eighteen (18) years of age.” I.C. § 35-42-2-1.5.
Schafer challenges the mens rea and his identity as the perpetrator of the crimes
with respect to both charges,.
[46] Intent is statutorily defined as “[a] person engages in conduct ‘intentionally’ if,
when he engages in the conduct, it is his conscious objective to do so.” I.C. §
35-41-2-2(a). “Knowingly” is defined as “[a] person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” I.C. § 35-41-2-2(b). In Anderson v. State, 681
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 28 of 31 N.E.2d 703, 708 (Ind. 1997), the defendant challenged the sufficiency of the
evidence to support the requisite mens rea of the murder of a 21-month old child.
Our supreme court found sufficient evidence to support the element of an
intentional killing because “[f]rom the severity of [the child’s] injuries . . . the
jury could have concluded beyond a reasonable doubt that defendant
knowingly killed [the child] and did not just intend to stop her from crying.” Id.
[47] On the day of her death, G.S. was ten weeks old; Schafer was twenty-three. Dr.
Harris concluded that G.S.’s extensive injuries were representative of abusive
head trauma with additional evidence of severe physical abuse. G.S. also had
trauma to her mouth, which Dr. Harris opined could only have occurred when
something was forcibly shoved into the mouth. The bruising G.S. had incurred
on her chest could not have been sustained by CPR and had required a lot of
force. In turn, Dr. Sozio affirmed that G.S.’s chest injuries had to have been
caused by blunt force trauma. Dr. Sozio also testified to G.S.’s femur fracture,
which had been caused by a twisting external force and which would have
resulted in “extreme pain, crying profusely, [and] not eating.” (Tr. p. 315). Dr.
Sozio opined that G.S.’s skull was not fractured, but there was subdural and
subarachnoid hemorrhage underneath the skull, which had been caused by
“any type of shaking injury.” (Tr. p. 319). G.S.’s brain had undergone “severe
swelling” to the point her brain “was forcibly being protruding through any
orifice or hole that it could find []—in this case, the spinal cord.” (Tr. p. 319).
Both doctors expressly ruled out Schafer’s couch explanation or fall off the
kitchen counter as possible causes of G.S.’s injuries. Accordingly, based on the
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 29 of 31 severity of G.S.’s injuries and Schafer’s relative age, there was sufficient
evidence from which the fact finder could have concluded beyond a reasonable
doubt that Schafer intentionally killed his infant daughter.
[48] Similarly, the identity of the abuser is established beyond a reasonable doubt.
Schafer was caring for G.S. from the time Johnson left for work around 4:30
p.m. until she passed away. Prior to leaving for work, Johnson had fed G.S.
and G.S. was sleeping in her swing. Starting at 8:45 p.m., Johnson received
several texts from Schafer expressing his increasing frustration with G.S.’s
refusal to take a bottle. When Johnson was on her way home, sometime after
midnight, she received a phone call from Schafer informing her that G.S. was
unresponsive. Reflecting on this time line of events and the nature of G.S.’s
injuries, Dr. Harris placed the time of the trauma “after 4:30 [p.m.]” (Tr. p.
355). This was confirmed by Dr. Sozio, who testified that with her extensive
injuries G.S. would not “have survived for any period of hours.” (Tr. p. 320).
[49] Mindful of the evidence before us, we conclude that the State presented
sufficient evidence beyond a reasonable doubt to support Schafer’s conviction
of murder and battery leading to the death of a person less than fourteen.
CONCLUSION [50] Based on the foregoing, we hold that (1) the trial court did not express bias and
a lack of impartiality when making certain statements during the proceedings;
(2) the trial court properly admitted Schafer’s statements to the police officers;
(3) the trial court did not abuse its discretion by admitting certain evidence of
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 30 of 31 prior misconduct pursuant to Indiana Rules of Evidence 404(b); (4) Schafer’s
jail phone call to his mother was properly admitted into evidence; (5) the State
did not fail to preserve evidence; and (6) the State presented sufficient evidence
beyond a reasonable doubt to support Schafer’s conviction.
[51] Affirmed.
[52] Crone, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017 Page 31 of 31