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Docket Number

No. 569S101.

Attorney(S)

Frank E. Spencer, of Indianapolis, for appellant. Theodore L. Sendak, Attorney General and William F. Thompson, Assistant Attorney General, for appellee.

Judges

ARTERBURN, J.

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Smart Summary

Bivins v. State of Indiana, No. 569S101 — Supreme Court of Indiana (Filed June 1, 1970; Rehearing denied July 30, 1970)

Factual and Procedural Background

This appeal arises from convictions for first degree murder (including first degree murder by killing in the perpetration of a felony). Appellant and three others were indicted. Appellant and Smith were tried together; Mayberry and McElwain testified for the State. The underlying facts, as found in the opinion, are that on November 2, 1967 appellant drove Mayberry to a hardware store where appellant and two companions entered. The clerk opened the cash register and was attacked by appellant. Three rapid gunshots were fired; the clerk fell wounded. The three men fled with the money. The clerk later died ten days after surgery and hospitalization. Appellant was found guilty on both counts and sentenced to life imprisonment; this opinion affirms that judgment.

Legal Issues Presented

Whether the evidence was sufficient to show that the victim's death was caused by the gunshot wounds despite the victim's prior history of heart attacks.
Whether a defendant may be held criminally responsible for a death when his injurious act contributed to the death even though other causes may also have contributed.
Whether the autopsy physician's expert opinion as to cause of death was admissible and sufficiently grounded in revealed facts rather than mere conjecture.
Whether the admission of a physician's opinion as to cause of death improperly went to prove the ultimate issue in the case.
Whether the trial court erred in refusing appellant's proposed jury instruction that would permit the jury to infer that witnesses who were on bond had been released in exchange for their testimony (i.e., whether the jury should have been instructed about such potential impeachment without record support).

Arguments of the Parties

Appellant's Arguments

There was insufficient evidence to establish that the clerk's death was caused by the gunshot wounds because the clerk had a history of heart attacks; thus the jury could not properly find death resulted from the shooting.
The autopsy physician's opinion as to cause of death was mere conjecture and unsupported by facts, and therefore insufficient to establish causation.
The physician's opinion was improper because it purported to prove the ultimate fact in issue (the cause of death).
The trial court erred in refusing tendered instruction No. 1 (citing Burns' 9-1015) because two accomplices who testified for the State were on bond; appellant argued the jury could infer they were released in exchange for testimony and that this should have been presented as impeachment evidence via instruction.

The opinion does not contain a detailed, separately enumerated statement of the appellee's (State's) formal arguments; rather, the record reflects State witnesses' testimony and the court's responses to appellant's contentions as described elsewhere in this summary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671	Establishes that responsibility may rest with an actor whose injurious act contributed to the death of the injured person even if other causes also contributed.	The court invoked Wahl to support the proposition that appellant could be held responsible because the gunshot wounds contributed to the victim's death despite possible other contributing conditions.
Hicks v. State (1937), 213 Ind. 277, 11 N.E.2d 171 (cert. denied 304 U.S. 564)	Same principle: a defendant's culpability is not negated merely because other causes contributed to death.	The court relied on Hicks along with other authorities to reject appellant's argument that other causes (heart disease) absolved him of responsibility.
Kelley v. State (1876), 53 Ind. 311	Affirms the rule that contributory causation by the defendant supports criminal responsibility for resulting death.	The court cited Kelley to bolster the longstanding Indiana rule that the existence of other contributing causes does not relieve the actor of responsibility.

Court's Reasoning and Analysis

The court addressed appellant's challenges in a stepwise fashion, relying strictly on the testimonial record presented at trial:

Sufficiency of evidence on cause of death: The court found ample evidence that the victim died as the direct result of the wounds inflicted. It relied on three sources of medical testimony in particular:
- The hospital emergency physician testified the victim was received in critical condition, had lost a considerable amount of blood from three gunshot wounds (one above the right clavicle, one about midchest, and one to the left side of the abdomen), underwent surgery, was in critical condition as a result of the multiple wounds, and died ten days later.
- The victim's personal physician testified that although the victim had suffered heart attacks in 1962 and 1965, he had been examined the day before the shooting (November 1, 1967) and was in "very satisfactory" condition with no abnormal physical findings.
- The autopsy pathologist testified he had performed a complete autopsy and, based on his examination and experience, opined that the decedent died of arteriolosclerotic heart disease due to (or "complicated by") gunshot wounds and stated his opinion that the decedent would not have died without the gunshot wounds; on redirect the pathologist reaffirmed his opinion that the decedent died as a result of the gunshot wounds when given the fact of a clean bill of health the day prior.
The court concluded these combined medical testimonies provided an adequate factual basis for the jury to infer that the gunshot wounds contributed to and were a cause of death.
Causation and multiple contributing causes: The court reiterated the established rule (citing Wahl, Hicks, and Kelley) that an actor can be held responsible if his injurious act contributed to death even when other causes also contributed. Applying that rule to the record, the court concluded that the jury could reasonably infer that the multiple wounds contributed either mediately or immediately to the death.
Admissibility and sufficiency of the autopsy opinion: The court rejected the contention that the pathologist's opinion was mere conjecture. It emphasized that the pathologist had conducted a thorough autopsy, observed bullet penetration and organ damage, and testified extensively about the factual basis for his opinion. The court also noted appellant did not object at trial to the opinion as lacking a factual basis nor effectively challenge the basis on cross-examination; accordingly, the opinion was properly admitted and was supported by revealed facts.
Expert opinion on the ultimate issue: The court addressed appellant's claim that admitting the physician's opinion improperly went to the ultimate fact in issue. The court observed that appellant himself had asked similar questions on cross-examination and then cited authorities (Jones on Evidence, ALR, and American Jurisprudence) indicating that a physician's opinion may be admitted to show cause of death. Thus the admission was proper.
Refusal of tendered jury instruction concerning witnesses on bond: Regarding appellant's proposed instruction (which referenced the statute forbidding bail for murder when proof is evident or presumption is strong), the court found no record evidence supporting appellant's inference that the accomplices' release on bond was in exchange for testimony. The two witnesses denied induced testimony or consideration. The court held that appellant may not speculate and request an instruction based on an unsubstantiated inference; therefore refusal of the instruction was not reversible error.

Holding and Implications

Holding: The Supreme Court of Indiana affirmed the trial court's judgment. Judgment Affirmed.

Implications:

As a direct effect, appellant's convictions for first degree murder (including murder in the perpetration of a felony) and the life sentence imposed were affirmed by the court.
The court applied settled Indiana precedent that a defendant may be held responsible for a death if his act contributed to it even though other causes may have also played a role.
The opinion upholds the admissibility of a physician's autopsy opinion when the expert testifies to the facts underlying his conclusion and when the basis for the opinion is presented to the jury; the court found no basis to treat that testimony as mere conjecture here.
No broader legal change or novel rule was announced; the decision applies existing case law and evidentiary principles to the facts of this case. (The opinion does not purport to establish a new precedent beyond applying established authorities.)

Disposition noted in opinion: Judgment affirmed. Hunter, C.J., Givan and DeBruler, JJ., concur; Jackson, J., concurs in result.

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BIVINS v. STATE OF INDIANA.

1. EVIDENCE — Physician's Testimony — Gun Shots as Cause of Death. — Where admitting hospital physician testified victim received in critical condition; that he had lost considerable blood from three gunshot wounds, one above the right clavicle, one about midchest and one to the left side of the abdomen; that surgery was performed; that victim's critical condition was the result of multiple wounds; that death occurred ten days later, there is ample evidence to support a finding that victim died as the direct result of wounds inflicted. p. 186.

2. CRIMINAL LAW — Responsibility for Death — Effect of Contribution Toward Death. — Responsibility may rest with actor whose injurious act contributed to the death of the person injured despite the fact that other causes may also have contributed to the death. p. 188.

3. EVIDENCE — Cause of Death — Expert Testimony — Supporting Facts of Record. — Where testimony of physician performing autopsy sets forth extensively the facts upon which his expert opinion is based it cannot be claimed such testimony is insufficient as relating to cause of death by reason of being based on conjecture unsupported by fact. p. 189.

4. EVIDENCE — Expert Testimony — Physician's Opinion. — The opinion of a physician as an expert may be admitted to show cause of death. p. 189.

5. JURY INSTRUCTION — Credibility of Testimony — Witnesses Released on Bail. — Appellant cannot request an instruction dealing with unsubstantiated inferences as to the circumstances surrounding witness' release on bail. p. 190.

ARTERBURN, J.

Appellant and three other men were indicted for first degree murder and first degree murder by killing in the perpetration of a felony. The issues were submitted to a jury and appellant was found guilty on both counts and sentenced to life imprisonment.

All four of the men indicted, Smith, Mayberry, McElwain and the appellant, entered pleas of not guilty. Smith and the appellant were tried together. Mayberry and McElwain testified as State's witnesses at the trial.

The facts are briefly these: On the afternoon of November 2, 1967, the appellant stopped by the home of Mayberry. Mayberry asked for a ride to a nearby school. Upon entering appellant's car, Mayberry found McElwain and Smith therein. Appellant started discussing a robbery with McElwain and Smith. Appellant instructed Mayberry to drive the car and directed him to an alley adjacent to a hardware store. Mayberry waited in the car while appellant and the other two men entered the store.

Once in the hardware store, appellant made a purchase. When the clerk opened the cash register to record the sale, he was attacked by the appellant. The appellant called to his companions for assistance. Help came in the form of three rapid gunshots. The clerk fell to the floor wounded. The three men fled the store with the money from the cash register. McElwain testified that as the three of them ran out of the store "I saw the gun down at Will Smith's side."

It is argued that there is insufficient evidence to establish the cause of the clerk's death. The argument is that the victim had a history of heart attacks and that there is insufficient evidence to support a finding that he died as the result of the gunshot wounds as charged in the indictment. We disagree for two reasons.

First, we believe there is ample evidence to support a finding that the victim died as the direct result of the wounds inflicted during the robbery. The physician who was in the emergency 1. room of the Marion County General Hospital testified that the victim was received in critical condition; that he had lost a considerable amount of blood from three gunshot wounds, one above the right clavicle, one about mid-chest and one to the left side of the abdomen; that surgery was performed; that the victim was in critical condition as the result of the multiple wounds; and that he died ten days later.

There was further testimony from the victim's personal physician that the decedent had a heart attack in 1962 and another in 1965, but that on November 1, 1967, one day before the robbery and shooting, he had occasion to examine the decedent and found him in "very satisfactory" condition. There were no "abnormal physicial findings".

In addition, the physician who performed the autopsy on the decedent testified in pertinent part as follows:

"Q. Now, Doctor as a result of this autopsy which you performed and your medical experience as a pathologist do you have an opinion as to the cause of death of Forrest Arthur, Jr., Forrest Arthur, I'm sorry?

"A. It is my opinion that Forrest Arthur died of arteriolosclerotic [sic] heart disease due to gunshot wounds.

"Q. Cause by gunshot wounds?

"A. Well, complicated by gunshot wounds.

"Q. Now let me ask you, in your medical opinion would Forrest Arthur have died without those gunshot wounds?

"A. In my opinion he would not have died without the gunshot wounds.

" MR. WILSON: Your witness.

"THE COURT: Cross examine, Mr. Taylor.

"CROSS EXAMINATION

"QUESTIONS BY MR. TAYLOR, COUNSEL FOR William Bivins.

"Q. Doctor, could you say of certainty that he would not have died, having had previous heart attacks, had he not been shot?

"A. Not with certainty, I couldn't say that for anyone in the room.

"Q. Now suppose that he had been in a scuffle and had been knocked to the — this is a hypothetical question — that he had been in a scuffle with a person and had been knocked to the ground, or the floor, and having been subject to heart seizures heretofore, as has been testified to here in this case, would that in and of itself tend to make his condition more susceptible to death from a heart attack?

"A. It could, yes, sir.

" MR. TAYLOR: I believe that is all.

" THE COURT: Mr. Kern.

"CROSS EXAMINATION

"QUESTIONS BY MR. KERN, counsel for William Smith.

"Q. Doctor, do these photographs depict one, two or three gunshot wounds?

"A. Two.

"Q. These two photographs depict two gunshot wounds?

"A. Two.

"Q. These two photographs depict two gunshot wounds?

"A. Yes sir.

"Q. Now is it your testimony that Forrest Arthur could have died from this heart condition without any traumatic experience, that there is a possibility that he could have died from this heart condition without any traumatic experience?

"A. Yes, sir.

"Q. Death could have resulted, that is a possibility?

"A. Yes, sir.

" MR. KERN: We have no further questions, Your Honor.

" THE COURT: Redirect.

" REDIRECT EXAMINATION

" QUESTIONS BY MR. WILSON, deputy prosecutor.

"Q. Doctor, was Forrest Arthur a human being?

"A. Yes, sir.

"Q. Also assuming that Forrest Arthur had been given a complete physical examination the day prior to November second, 1967, or the day prior to sustaining the gunshot wounds, could you say with reasonable, and that he passed this physical with the doctor giving him a clean bill of health, so to speak, finding no abnormalities, could you say with reasonable medical certainty that if he died on November twelfth, after sustaining the gunshot wounds, that he died as a result of the gunshot wounds?

"A. It is my opinion that he died of the gunshot wounds. (Emphasis Added) " MR. WILSON: No further questions."

Secondly, the appellant is responsible for the death of the decedent if the injury by him contributed to the death of the person injured. The fact that other causes may also have 2. contributed to the death does not relieve the actor of responsibility. Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671; Hicks v. State (1937), 213 Ind. 277, 11 N.E.2d 171, cert. denied 304 U.S. 564, 58 S.Ct. 951, 82 L.Ed. 1531; Kelley v. State (1876), 53 Ind. 311. It cannot seriously be argued, in view of the above expert testimony, that there was insufficient evidence from which the jury could infer that the multiple wounds inflicted upon the decedent contributed mediately or immediately to his death.

Appellant further argues that the opinion of the physician who performed the autopsy is insufficient as it relates to the cause of death because it is based on mere conjecture and 3. unsupported by fact. We find that the opinion of this medical expert was based upon facts which were clearly presented to the jury. The expert had conducted a thorough and complete autopsy upon the body and had seen for himself where the bullets had penetrated the inner organs and the nature and extent of the damage caused thereby. He testified extensively concerning the autopsy, which was the basis for his opinion. It cannot be said that the facts supporting his opinion were not revealed. We further note that at no point did appellant object to the opinion expressed as being made without revealing the facts upon which it was based nor on cross examination was the basis of the opinion challenged.

Appellant next states the opinion of the physician as to the cause of death was improper as going to prove the ultimate fact in issue. This argument is made in spite of the fact that 4. appellant asked the same type of questions on cross examination. The opinion of a physician as an expert may be admitted to show the cause of death. Jones on Evidence 5th Ed., § 424, p. 801; 136 ALR 965; 31 Am.Jur.2d, Expert and Opinion Evidence § 111, p. 640.

It is next argued that the trial court committed reversible error in refusing to give to the jury the appellant's tendered instruction No. 1 which reads:

"At all times during the pendency of this cause of action there was a statute enacted by the General Assembly of the State of Indiana and found in Acts 1905, Chapter 169, Sec. 126, p. 584, which reads as follows: `All offenses other than murder or treason shall be bailable by sufficient sureties. Murder or treason shall not be bailable when proof is evident or the presumption is strong.' Burns' 9-1015."

The argument is that two of the appellant's accomplices in the crime, Mayberry and McElwain, testified against the appellant; that these two men were also under indictment for two counts of murder; that they were free on bond; that in view of the above statute it could be inferred they were freed in exchange for their testimony; and that this was material as it impeached the credibility of the testimony of these two men and the jury should have been so informed. We find no reversible error. There is no evidence to support the contention.

To the contrary, the two witnesses denied, upon questioning, that their testimony had been induced by promises or consideration. Appellant may not speculate as to the 5. circumstances surrounding their release on bail without any evidence of the same being in the record and then request an instruction dealing with such an unsubstantiated inference.

Judgment is affirmed.

Hunter, C.J., Givan and DeBruler, JJ., concur. Jackson, J., concurs in result.

NOTE. — Reported in 258 N.E.2d 644.

BIVINS v. STATE

Bivins v. State of Indiana, No. 569S101 — Supreme Court of Indiana (Filed June 1, 1970; Rehearing denied July 30, 1970)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

BIVINS v. STATE OF INDIANA.

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