ATTORNEY FOR APPELLANT
David W. Stone IV
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Joseph A. Samreta
Deputy Attorney General
SUPREME COURT OF INDIANA
TRACY SUE CRAWFORD, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 48S00-0103-CR-166
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-0003-CF-00060
ON DIRECT APPEAL
June 26, 2002
Tracy Crawford was found guilty, but mentally ill, for the murder of her
husband and sentenced to sixty-five years imprisonment. She raises six issues for
review, which we restate as five. She contends: (1) the trial court
erred by allowing expert witnesses it appointed to examine her to be called
out of order at trial; (2) the trial court erred by admitting her
husbands journal into evidence; (3) the trial court erred by preventing her from
calling rebuttal witnesses; (4) the trial court imposed an improper restitution order; and
(5) the trial court imposed an improper sentence. We affirm Crawfords conviction
for murder and remand with instructions to reduce Crawfords sentence to fifty-five years.
Factual and Procedural Background
On March 5, 2001, Crawford shot and killed her husband Kent while he
slept in their Madison County home. After her attempt to dispose of
his body failed, she drove off with the couples child. A passerby
stopped to aid Crawfords car, which was parked on the side of a
Michigan road with help written on a diaper in the window. Crawford
asked for the police and initially told investigating officers that a couple had
broken into her home and abducted her and her son. She also
asked the police to check on her husband.
Crawford later admitted that she had killed Kent. She told police that
Kent had repeatedly abused her sexually and that he had threatened to take
their child away when she told him she had filed for divorce.
She admitted having taken the gun she used to kill Kent from her
grandparents home because she wanted to be able to protect herself. She
shot Kent, she said, hours after he had forced her to perform oral
The State charged Crawford with murder, and a jury found her guilty but
mentally ill. The trial court imposed the maximum sentence of sixty-five years
and awarded $9,960.40 to Kents estate for funeral expenses.
I. Order of Witnesses
Indiana Code section 35-36-2-2 states that when a notice of insanity defense is
filed, the court shall appoint two (2) or three (3) competent disinterested psychiatrists,
psychologists endorsed by the state psychology board as health service providers in psychology,
or physicians, at least one (1) of whom must be a psychiatrist, to
examine the defendant and to testify at trial. The statute is explicit
as to when those appointed mental health professionals are to testify at trial:
This testimony shall follow the presentation of the evidence for the prosecution and
for the defense, including testimony of any medical experts employed by the state
or by the defense. Ind. Code § 35-36-2-2 (1998).
The meaning of this statute is not in doubt. Court-appointed mental health
professionals are to testify after the prosecution and defense have concluded their presentations
of evidence. We have held as much since at least 1954, when
we stated that it is the clear intent of the statute that an
expert appointed by the court shall not be permitted to testify on the
subject of the sanity or insanity of the accused until after the presentation
of the evidence of the prosecution and the defense.
Henderson v. State,
233 Ind. 598, 602, 122 N.E.2d 340, 342 (1954). In Blackburn v.
State, 260 Ind. 5, 25, 291 N.E.2d 686, 698 (1973), this Court stated,
The reason for the final sentence in the statute . . . is
clear. It relieves both parties of the burden of having the court-appointed
physicians become their witnesses with the result that they would be bound by
such testimony. In Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985),
we held that [t]he statute requires that these witnesses be called following all
the evidence presented by the State and by the defendant. And two
weeks later, in Thomas v. State, 486 N.E.2d 531, 533 (Ind. 1985), we
stated that the clear purpose of the statute in requiring this particular order
of proof is to separate the evidence relating to the substantive crime from
that related to the issue of sanity.
Because of scheduling conflicts, the trial court called the experts it appointed to
examine Crawford before the close of Crawfords case. In so doing, it
ignored the statute and controlling precedent. The State contends this was not
reversible error because there was no prejudice to Crawford. Crawford argues first
that she need not demonstrate prejudice in this case because [t]o hold otherwise
renders the statutory provision so much surplusage which may be disregarded with impunity.
She also contends that the trial courts decision prejudiced her case because
the witnesses testimony was presented at the time when it was most likely
to nullify the evidence of the defendants expert witnesses since it was presented
immediately after their testimony.
We agree with Crawfords concerns. The trial court relied on
State, 273 Ind. 542, 406 N.E.2d 237 (1980), as a basis for it
to proceed despite the statutory mandate and despite the holding of Phelan itself
that allowing a court-appointed physician to testify prior to the close of the
defendants case was error. In Phelan we held there was no reversible
error because the defendant in that case did not demonstrate prejudice. The
trial court here assumed that its proceeding in error also would turn out
to be harmless. When Crawfords attorney objected to the trial courts decision,
the following exchange took place:
DEFENSE COUNSEL: [T]he reason youre going to do it, although the Supreme Court
said it was err[or] is because in that particular case it didnt prejudice
the defendant. So youre just going to make an assumption here that
whatever happens here is not going to prejudice the defendant. Youre going
to ignore the law and youre going to ignore a Supreme Court opinion
from 1980 that says its err[or] to do it. Is that my
understanding of your interpretation?
TRIAL COURT: Yes, maam.
II. Kents Journal was Hearsay
Although the trial court presumably meant well in its attempt to accommodate the
witnesses schedules, neither the statute nor case law provides an exception to the
mandated witness order in this situation. A courts indifference to clearly stated
rules breeds disrespect for and discontent with our justice system. Government cannot
demand respect of the laws by its citizens when its tribunals ignore those
very same laws. This is one of the fundamentals of our Code
of Judicial Conduct. Ind. Code of Judicial Conduct Canon 2A (A judge
shall respect and comply with the law and shall act at all times
in a manner that promotes public confidence in the integrity and impartiality of
Although Crawford raises valid concerns, and although a trial court that chooses to
disregard the law leaves itself open to disciplinary action, the issue on appeal
remains subject to the harmless error standard of review. Errors in the
admission or exclusion of evidence are to be disregarded as harmless error unless
they affect the substantial rights of a party. Fleener v. State, 656
N.E.2d 1140, 1141 (Ind. 1995); Ind. Trial Rule 61. Crawford argues that
the presentation of the court-appointed experts prior to the close of her case
nullified the testimony of her own experts, who testified immediately before. This
situation is similar to Blackburn, where this Court noted that jurors might just
as likely have been influenced to a greater extent had the testimony of
the court-appointed physicians been presented at the close of evidence, leaving unfavorable testimony
fresh in their minds prior to deliberations. 260 Ind. at 25-26, 291
N.E.2d at 698. In Blackburn, as in this case, there was no
affirmative showing of prejudice to the defendant as a result of the error.
All we are presented with is Crawfords speculation as to the effect
of the court-appointed experts testimony. In sum, Crawford points to nothing showing
that the sequence of the evidence likely had a prejudicial effect on the
jurors. Although the trial courts error was blatant and intentional, we cannot
say it affected Crawfords substantial rights. Retrials involve significant emotional and financial
costs to many innocent parties, including witnesses, victims, and their families. In
the absence of any showing of prejudice they should not be lightly imposed.
Whether this matter is grounds for action in another forum is not
for this Court to resolve in the first instance.
The State introduced into evidence a diary kept by Kent purporting to document
Crawfords treatment of Kent two years before his murder. The trial court
admitted the diary over Crawfords hearsay objection. The State relied on the
diary to prove that Crawfords claim of mistreatment by her husband was false,
and that in fact she was the one who treated her spouse poorly.
The diary included the following entries:
5/22/98 My life stinks. Tracy has moved into the other bedroom
(3 weeks ago) The sale of 10th Street has fallen through, I
am fearful that we will not have enough money to live on, I
am so stressed about my marriage. . . . [M]y marriage
is extremely difficult, I get no respect! I have jumped up and
down trying to get someone to see how terrible Tracy treats me, but
no one seems to sympathize with me. . . . God
seems to say, wait and have faith. But I am getting slapped
around. If God can create the universe in 6 days, why cant
he fix Tracy?
6/10 Tracy and I are not doing well. We got into
a big fight last night about me not calling about the Dr. appt.
she had that day. God keeps saying wait. But there is
nothing to hope for. I feel completely empty. . . .
Please God, restore my marriage. Help Tracy to forgive and forget.
6/25/98 Life has been difficult. Tracy and I are still struggling.
She doesnt respect or trust me. She has told me that
time and time again. Sunday, I told her the way I felt.
. . . She was very hateful and embarrassed me in
front of Dr. Jackson. I think Dr. Jackson felt uncomfortable and hopeless.
At trial, the State conceded the diary was hearsay, but contended it was
admissible because Crawford had asserted an insanity defense. It is true that
when the defense of insanity is raised, otherwise inadmissible evidence may be admitted.
Garner v. State, 704 N.E.2d 1011 (Ind. 1998). However, to fall
within this doctrine, otherwise inadmissible evidence must be relevant to the mental state
of the defendant. Id. at 1014. Unlike Garner, the quoted portions
of Kents diary do not pertain to Crawfords claim of insanity. They
merely document Kents assertions that Crawford treated him poorly and that the couples
marriage was troubled. Although Crawfords insanity claim was related to her claim
of spousal abuse, Kents private assessment of their relationship two years before his
murder had no bearing on the issue of Crawfords mental state.
III. Rebuttal Witnesses
This Court will not reverse the trial courts decision to admit evidence if
that decision is sustainable on any ground.
Cf. Jester v. State, 724
N.E.2d 235, 240 (Ind. 2000). On appeal, the State abandons the argument
it made at trial and instead argues that the diary fell within an
exception to the hearsay rule for statements of the declarants then existing state
of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain and bodily health). Evidence Rule 803(3). The State
contends that the journal shows Kents state of mind regarding his marriage.
Although the journal entries convey Kents feelings about his marriage, we see no
issue to which they are relevant. Moreover, the State used very specific
assertions to attempt to prove the underlying facts, not Kents state of mind:
Crawford moved into a separate bedroom; Crawford treated him terribly; Crawford and he
fought; Crawford embarrassed him at a counseling session.
Although error, we conclude the admission of the diary was harmless. Several
witnesses, including Crawford, testified that relations between her and Kent were strained.
The erroneous admission of evidence that is merely cumulative of other admissible evidence
is not grounds for reversal.
Tobar v. State, 740 N.E.2d 106, 108
A letter from Kent to Crawford was introduced by the defense. Crawford
testified that the last time she saw the letter it was in a
lavender folder on the sewing machine desk in a spare room. In
rebuttal, the State recalled witness Joey Johnson. Johnson and several others were
responsible for gathering financial documents from the Crawfords home after the murder.
Johnson testified that he believed he found the letter in a leather portfolio
in Kents car. The trial court denied Crawfords request to present testimony
rebutting Johnsons account of the location of the letter. Crawford argues that
a major component of the States case was its attempt to prove Crawford
was a liar. She contends that denying her the chance to present
testimony that would contradict Johnson as to the location of Kents letter was
This Court reviews a trial courts exclusion of evidence on relevance grounds for
an abuse of discretion.
Schwestak v. State, 674 N.E.2d 962, 964 (Ind.
1996). Given the issues in this case, we cannot say excluding Crawfords
rebuttal evidence was an abuse of its discretion. The location of the
letter was not an issue in this case, and denying the opportunity to
present evidence on peripheral matters in rebuttal is not error. Baker v.
State, 483 N.E.2d 736, 738 (Ind. 1985). Although Crawford is correct that
her credibility was a central issue, there is no indication that Johnsons testimony
about the location of the letter led the jury to consider Crawford less
credible. The State made no mention of this discrepancy in its entire
closing argument, despite its lengthy portrayal of Crawford as a liar in other
Pursuant to Indiana Code section 35-50-5-3(a)(4), the trial court ordered Crawford to pay
$9,960.40 in restitution for her husbands funeral and burial expenses. Crawford argues
that she should be given credit toward that amount for assets she assigned
to the estate in exchange for an agreement by the estates beneficiaries not
to sue her for wrongful death. This Court reviews a trial courts
restitution order for an abuse of discretion.
Roach v. State, 695 N.E.2d
934, 943 (Ind. 1998). A trial court may consider a civil settlement
when deciding whether to impose a restitution order, or the amount of restitution
to order. However, civil settlements have no bearing on decisions of criminal
punishment. Wininger v. Purdue Univ., 666 N.E.2d 455, 457 (Ind. Ct. App.
1996) (Imposition of a restitution order is a form of punishment, and an
order of restitution is as much a part of a criminal sentence as
a fine or other penalty.) (citations omitted); Dupin v. State, 524 N.E.2d 329,
331 (Ind. Ct. App. 1988) (Settlements in civil cases can have no effect
upon sentences meted out in criminal cases.). We affirm the trial courts
Crawford claims the trial court erred when it imposed the maximum sentence of
sixty-five years for murder. Ind. Code § 35-50-2-3 (Ind. 1998). This
Court reviews trial court sentencing decisions for an abuse of discretion.
v. State, 709 N.E.2d 3, 9 (Ind. 1999). If a trial court
uses aggravating or mitigating circumstances to enhance or reduce the presumptive sentence, or
to impose consecutive sentences, it must (1) identify all significant mitigating and aggravating
circumstances; (2) state the specific reason why each circumstance is determined to be
mitigating or aggravating; and (3) articulate the court's evaluation and balancing of the
The trial court found three aggravating factors which we restate as: the nature
and circumstances of the crime, including her killing Kent while he slept; and
Crawfords need for correctional treatment. The court stated that the nature of
the crime was rather heinous and found that Crawfords stealing her grandparents gun
to use against Kent indicated that it was premeditated. The court also
noted Crawfords lying to police after the fact, and eventually seeking to justify
her acts through her allegations of abuse.
The court found two mitigating factors: the unlikelihood that Crawford will commit a
similar crime, and Crawfords lack of criminal history. However, it determined that
those mitigators carried little weight because they are factors usually present in murder
cases. The court stated:
The mitigating circumstances which have been addressed, circumstances unlikely to recur in a
murder case, thats always been the case because obviously the victim is not
going to be around to be killed again. . . .
So even though its listed as a mitigating circumstance, I dont think its
very rational or practical in this case. . . . The
fact that there is no criminal history is true. But I hardly
think its a justifiable mitigator in this case because as records many many
times show, murders [sic] arent person[s] who commit a lot of other types
Although the trial court also noted the jurys finding that Crawford was guilty
but mentally ill, it did not appear to weigh the finding in its
sentencing decision, or at least found it unpersuasive as mitigation. The court
The mental condition which has been referred to in this case, the jury
did find the defendant guilty but mentally ill, its interesting to note the
testimony of the professionals regarding this situation. Its also interesting to note .
. . the fact that shes been examined by so many professionals and
not one of them had seen fit to prescribe any particular medication for
her to overcome any mental conditions that she may have or to prescribe
any particular therapy for her to overcome any mental conditions that she would
have. And it would seem that being incarcerated in the Madison County
jail since being arrested that mental conditions would probably be heightened because of
incarceration, depression, the upcoming trial, the potential of incarceration and none of that
seems to be [of] concern at this point to the professionals.
Crawford contends the trial court erred by not considering her mental illness a
significant mitigating factor. We agree. Crawfords experts testified, and the jury
apparently agreed, that Crawford was mentally ill at the time she murdered her
husband. We have previously held that a verdict finding mental illness, combined
with a defendants lack of criminal history, is a significant mitigating circumstance.
Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996). Further, in finding
that Crawford was in need of correctional treatment, the trial court stated that
Crawford did not appreciate the fact that there is a process available for
people in her situation . . . well, she did appreciate it because
she started the divorce proceedings, but abandoned those and took matters into her
own hands and committed murder, rather than to continue the divorce proceedings.
However, the trial court did not articulate how this fact indicated that Crawford
was in need of correctional treatment beyond that prescribed by the presumptive sentence.
Walter v. State, 727 N.E.2d 443, 447 (Ind. 2000); Wooley v. State,
716 N.E.2d 919, 930 (Ind. 1999). Finally, witnesses testified to Crawfords character
and Crawford expressed remorse for what she had done. Yet the trial
court made no mention of this evidence when imposing sentence.
In sum, we find no significant aggravating factors, and some mitigating. Giving
deference to the trial courts minimal finding based on the circumstances of the
crime, pursuant to Article VII, Section 4 of the Indiana Constitution, we revise
Crawfords sentence to the presumptive fifty-five years. Crawford also contends her sixty-five
year sentence was manifestly unreasonable. Because of our decision revising her sentence
to fifty-five years, this claim is moot.
We affirm Crawfords conviction for murder and remand with instructions to reduce Crawfords
sentence to fifty-five years.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.