Donald L. Webb, III v. Sheriff Kenneth A. Murphy and Town of Brookville, Indiana Terry Mitchum

• Court: Indiana Court of Appeals
• Decided: March 22, 2012
• Docket: 24A04-1104-CT-197
• Status: Unpublished

Opinion

FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Mar 22 2012, 9:25 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE SHERIFF KENNETH A. MURPHY: JOHN H. WATSON Sunman, Indiana WAYNE E. UHL Stephenson Morow & Semler Indianapolis, Indiana

ATTORNEY FOR APPELLEE TOWN OF BROOKVILLE, INDIANA:

JAY D. PATTON Schroeder, Maundrell, Barbiere & Powers Mason, Indiana

IN THE COURT OF APPEALS OF INDIANA

DONALD L. WEBB, III, ) ) Appellant-Plaintiff, ) ) vs. ) No. 24A04-1104-CT-197 ) SHERIFF KENNETH A. MURPHY AND ) TOWN OF BROOKVILLE, INDIANA ) ) Appellees-Defendants, ) ) TERRY MITCHUM, ) ) Appellee-Counterclaim Plaintiff. )

APPEAL FROM THE FRANKLIN CIRCUIT COURT The Honorable John D. Mitchell, Special Judge Cause No. 24C01-0704-CT-153 March 22, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary

Donald L. Webb, III, appeals from the judgment entered in favor of the Franklin

County Sheriff and the Town of Brookville (collectively “the Defendants”) on his claims

of battery and intentional infliction of emotional distress. He contends that the trial court

committed fundamental error by admitting testimony and evidence of his prior aggressive

acts and abused its discretion by exempting the Defendants’ expert witness from a

separation of witnesses order. Finding that the fundamental error doctrine does not apply

and that the trial court did not abuse its discretion in exempting the Defendants’ expert

from the separation of witnesses order, we affirm.

Facts and Procedural History

On July 22, 2006, Webb went to the Franklin County Fair on a small motor

scooter. He was twenty-five years old at the time and mildly mentally handicapped,

functioning at the level of a ten- to twelve-year-old child. His parents had left the home

that evening to go to dinner at a nearby casino, and they directed Webb to stay home. He

did not listen and instead went to the fair.

While at the fair, Webb was approached by several younger children

approximately twelve to fifteen years old. They asked for money and Webb refused.

One of the children got behind Webb and grabbed for his wallet. Webb turned around,

2 grabbed the child, and immediately released him. A woman, apparently the child’s

mother, saw the incident and called the police. Webb immediately left.

Brookville Police Department Officers Mitchum and Campbell located Webb

driving down the road and turned on their lights and siren. Webb did not stop for several

blocks. When he finally pulled over, Webb appeared agitated and said that he wanted to

go home. He was directed to step to the front of the police car but instead walked back to

his scooter as if he were going to leave. At that time, Officer Mitchum told Webb he was

under arrest and attempted to pat him down for officer safety. Webb cursed and

physically resisted. The officers cuffed Webb’s hands behind his back and told him if he

promised to calm down, they would cuff his hands in front of him rather than behind his

back. Webb agreed, but when the officers removed one of the cuffs, Webb again tried to

pull away.

Meanwhile, Franklin County Sheriff’s Deputy Adam Henson arrived at the scene.

Webb was re-cuffed, and Officer Mitchum and Deputy Henson attempted to place Webb

in the back seat of the Brookville police car. Webb refused to sit down, so Deputy

Henson pushed him into a seated position. Webb refused to put his legs into the car,

struggling against the officers and kicking Officer Mitchum’s knee. Deputy Henson

retrieved his taser and warned Webb that he would use it if Webb did not stop kicking.

Webb told Deputy Henson to go ahead and tase him.

Officer Mitchum continued to push Webb into the car and Webb bit him on the

arm. In an attempt to get Webb to release his bite, Deputy Henson pushed the taser into

Webb’s shoulder and discharged it. Webb immediately released his bite but continued to

3 struggle and tried to bite Deputy Henson. In an effort to get Webb’s legs into the car,

Deputy Henson pressed the taser against the outside of Webb’s right leg and discharged it

again; Webb’s struggles caused the taser to move around and strike him in multiple

locations.

As a result of this incident, Webb sued the Defendants for battery and intentional

infliction of emotional distress, and Officer Mitchum counterclaimed for assault and

battery. Trial began on March 14, 2011. The trial court granted the Defendants pretrial

motion that its expert witness, Samuel Faulkner, be excluded from any witness-separation

order. The Defendants then moved for a separation of witnesses order, which was

granted. Webb then also moved for and was granted the same exemption for his expert

witness, Dr. John Ehrmann.

During trial, Webb’s mother testified to her son’s demeanor, saying that he

responds to negative events by being upset, he laughs inappropriately when nervous, and

he has temper tantrums. She also testified that she and her husband never had any trouble

physically controlling Webb and never had to strike him. Tr. p. 107-08, 120-21. On

cross-examination, she was asked about treatment records from Whitewater Valley Care

Pavilion showing that Webb was previously evaluated for aggression, which she said she

did not remember. Webb’s counsel objected on the ground that the question was outside

the scope of direct examination, and the objection was overruled. Id. at 121-22. The

reports were not offered into evidence. On redirect, Webb’s mother testified that Webb

had never become physical with her but that he will match any force that is brought to

him. Id. at 125-26.

4 Webb’s father also testified to his son’s demeanor and character, saying that he

could become stubborn, stiff, and defiant and the best way to deal with Webb when he is

mad is to talk to him calmly. Id. at 146-47. On cross-examination, he was asked without

objection if Webb had ever become physical with him, and he responded that this had

occurred only once. Id. at 149-50. He was also asked about the same treatment records

from Whitewater Valley Care Pavilion, and he responded that he did not recall those

records either. No objection was made to this line of questioning, and the reports were

not introduced into evidence. Id. at 152-53.

Webb’s expert witness, Dr. Ehrmann, testified about Webb’s prior psychological

and medical-treatment records. He also testified as to how the police officers, in his

opinion, should have acted in order to de-escalate the situation with Webb. On cross-

examination, Dr. Ehremann was asked about the report from Whitewater Valley Care

Pavilion, and he testified that he reviewed it in reaching his opinion about Webb’s

condition. He was also asked, without objection, about statements in the report of Webb

having trouble with his temper. The report was admitted into evidence without objection.

After five days of trial, the jury returned a judgment in favor of the Defendants on

Webb’s claims of battery and intentional infliction of emotional distress, and a judgment

in favor of Officer Mitchum on his counterclaim for assault and battery. The jury

awarded no damages on the counterclaim.

Webb now appeals.

5 Discussion and Decision

Webb raises two issues on appeal: (1) whether the trial court committed

fundamental error when it admitted testimony and evidence of his prior acts of aggression

and (2) whether the trial court erred in allowing the Defendants’ expert witness to remain

in the courtroom although a separation of witnesses had been granted.

I. Evidence of Prior Acts

Webb contends that the trial court erred in admitting testimony and evidence about

his past aggressive conduct in violation of Indiana Evidence Rule 404(b), which states

that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith . . . .” However, because

Webb did not object to the admission of this evidence at trial, he has waived the issue for

appellate review. See Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003) (“Failure to

object at trial to the admission of evidence results in waiver of that issue on appeal.”).

Nevertheless, he claims the admission of this evidence constitutes fundamental error.

The fundamental error doctrine is an exception to the general rule that the failure

to object at trial constitutes a procedural default precluding consideration of the issue on

appeal. Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind. 2008). The fundamental error

exception is extremely narrow and applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and the

resulting error denies the defendant fundamental due process. Matthews v. State, 849

N.E.2d 578, 587 (Ind. 2006). The error claimed must either make a fair trial impossible

or constitute clearly blatant violations of basic and elementary principles of due process.

6 Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. This exception is

available only in egregious circumstances. Id.

Fundamental error is not applicable in this case. We have applied this doctrine

only to very limited situations in civil cases, including the termination of parental rights

and mental-health commitment. See S.M. v. Elkhart Cnty. Office of Family & Children,

706 N.E.2d 596, 599 n.3 (Ind. Ct. App. 1999) (citing In re L.B., 616 N.E.2d 406, 407

(Ind. Ct. App. 1993), trans. denied; In re Commitment of Gerke, 696 N.E.2d 416, 421

(Ind. Ct. App. 1998)). Since this case involves neither liberty interests nor parental

rights, we decline to extend the fundamental error doctrine to this type of civil case in

which there are only monetary interests at stake.

Even if fundamental error were to apply to this case, we find that the admission of

Webb’s past aggressive conduct does not rise to the level of fundamental error. Evidence

that is otherwise inadmissible under Evidence Rule 404(b) may become admissible

“when the defendant ‘opens the door’ to questioning on that evidence.” Jackson v. State,

728 N.E.2d 147, 152 (Ind. 2000). Webb’s counsel opened the door to this evidence by

questioning Webb’s parents about his demeanor and tendencies and by using his expert

witness to testify to Webb’s lack of violent history and the best way to approach Webb in

a confrontational situation. It was therefore not fundamental error for the Defendants to

cross-examine Webb’s parents and expert witness about Webb’s demeanor and

tendencies and to offer evidence to rebut those claims. Once the door is opened to this

line of questioning, it is not fundamental error for opposing counsel to take advantage of

the opportunity.

7 The trial court did not commit fundamental error when it admitted testimony and

evidence of Webb’s prior acts of aggression.

II. Separation of Witnesses

Webb also contends that the trial court erred in allowing the Defendants’ expert

witness, Faulkner, to remain in the courtroom although a separation of witnesses had

been granted. Separation of witnesses is governed by Indiana Evidence Rule 615, which

says:

At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of or discuss testimony with other witnesses, and it may make the order on its own motion. This rule does not authorize the exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.

Webb argues that the Defendants did not show that Faulkner fit into any of the

enumerated exceptions in Evidence Rule 615 so it was an abuse of discretion for the trial

court to exempt Faulkner from the separation of witnesses order. We disagree.

A witness whose presence in the courtroom is essential to a party’s case cannot be

excluded. This exemption is generally used for expert witnesses who are believed to be

less susceptible to shaping their testimony based on what they hear from other witnesses

in the courtroom. R.R. Donnelley & Sons Co. v. N. Tx. Steel Co., Inc., 752 N.E.2d 112,

134 (Ind. Ct. App. 2001), trans. denied. Additionally, Indiana Evidence Rule 703

specifically contemplates the fact that expert witnesses may be in the courtroom for other

witnesses’ testimony, stating “[t]he facts or data in the particular case upon which an

8 expert bases an opinion or inference may be those perceived by or made known to the

expert at or before the hearing.” (Emphasis added).

Whether a witness falls within the exemption is within the trial court’s discretion.

R.R. Donnelley & Sons Co., 752 N.E.2d at 134; see also Fourthman v. State, 658 N.E.2d

88, 90 (Ind. Ct. App. 1995), trans. denied. We will only reverse a trial court’s decision if

it is an abuse of discretion – if it is clearly against the logic and effects of the facts and

circumstances before it or the reasonable, probable, and actual deductions to be drawn

therefrom. Brewer v. Ind. Alcohol and Tobacco Comm’n, 954 N.E.2d 1023, 1026 (Ind.

Ct. App. 2011).

In this case, the Defendants argued that Faulkner had a specialized expertise in law

enforcement and the use of force and was going to be asked questions based on the

testimony he heard in the courtroom regarding the incident with the police and Webb.

Tr. p. 56. Because he was going to be asked his opinion on the testimony presented in

court, if Faulkner were not allowed to stay in the courtroom, then he would have to be

provided with daily transcripts so that he could appropriately form his expert opinion in

this case. Given the necessity that he be aware of each witness’s testimony and the belief

that expert witnesses are less likely to alter their testimony based on what they hear from

other witnesses, we hold that the trial court did not abuse its discretion in exempting

Faulkner from the separation of witness order. We therefore affirm the trial court.

Affirmed.

ROBB, C.J., and NAJAM, J., concur.