ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
COURT OF APPEALS OF INDIANA
KATHARINE C. LIELL STEVE CARTER
RUSSELL C. MENYHART Attorney General of Indiana
Liell & McNeil Attorneys PC
Deputy Attorney General
JAMES S. ALEXANDER, )
vs. ) No. 28A01-0403-CR-141
STATE OF INDIANA, )
APPEAL FROM THE GREENE CIRCUIT COURT
The Honorable David K. Johnson, Judge
Cause No. 28C01-0209-MR-120
December 23, 2004
OPINION - FOR PUBLICATION
Appellant-Defendant James S. Alexander (Alexander) appeals his conviction for the murder
See footnote of his
wife, Mary Bland (Wife). We reverse and remand for possible retrial.See footnote
Alexander raises four issues, which we consolidate and restate as:
Whether the trial court abused its discretion by excluding the testimony of an
expert witness; and
Whether the trial court abused its discretion by instructing the jury.
Facts and Procedural History
During the early morning hours of September 13, 2002, Alexander admitted to the
police and his stepson that he shot and killed Wife. Alexander had
spent most of the day prior to Wifes death drinking beer. At
one point, he drove to the home of Bonnie Talley (Talley), his ex-wife,
to visit his son. Wife followed Alexander to Talleys home, informed Talley
that Alexander had been drinking, took Alexanders truck keys, and left Talleys home
with Alexanders keys. Because Talley was afraid of Alexander when he was
drinking, she asked him to leave her residence, which he did. Alexander,
carrying a paper bag of beer, walked into the bean field across the
street from Talleys house, where he remained for approximately two hours. When
he returned from the field, Alexander retrieved a spare truck key from his
wallet and drove away from Talleys residence at approximately 9:00 p.m. or 9:30
Later that evening, at approximately midnight, Alexander went to Alan Vests (Vest) house
and asked Vest if he wanted to go drink some beer. Tr.
at 529. Alexander and Vest then went to the Palace Bar to
drink alcohol. At approximately 1:00 a.m., Wife arrived at the Palace Bar
and Alexander met her in the parking lot. Wife and Alexander talked
for 5 or 10 minutes and then Alexander returned to the Palace Bar
and continued drinking until the bar closed at approximately 3:00 a.m. According
to Vest, Alexander seemed to be in a pretty good mood. Id.
at 536. When the two men left the bar, they drove to
Vests house, drank one beer, and Vest drove Alexander home.
Alexanders memory of the events surrounding Wifes death reportedly comes in flashes.
Id. at 836. While at home, Alexander remembers that he went into
the house that he shared with Wife and retrieved a shotgun. Next,
Alexander believesand the physical evidence demonstrates
See footnote that he took the shotgun and sat outside
on the front porch, while drinking beer and contemplating suicide. At the
time, Alexander apparently wanted to kill himself and kill the demons.
at 837. At some point, Wife came outside and asked Alexander to
come back inside the house. Subsequently, Alexander remembers talking with Wife in
the living room and bedroom. The next memory or flash that Alexander
has is of Wife laying on her back on the bed and something
told [him that] she was dead.
Id. at 837. Alexander, while
still holding the shotgun, knocked on the bedroom door of his stepson, Shane
Bland (Bland), informed Bland that he had shot Blands mother, and asked Bland
to call the police. Bland immediately dialed 9-1-1 and told the dispatcher
that his mother was unconscious. Alexander also contacted the police and, twice,
told the dispatcher that he was the killer. Thereafter, Alexander telephoned his
mother and told her that he had killed Wife.
When police officers arrived at Alexanders home, they found him sitting in a
chair with a shotgun in one hand and a telephone in the other.
Linton Police Officer Gary Tannehill (Officer Tannehill) retrieved the shotgun, which was
a single shot shotgun, opened the chamber, and found that a live round
was still in the shotgun. Id. at 315. Later it was
determined that Wife died of a single gunshot wound to the head.
In September of 2002, the State charged Alexander with murder. On September
16, 2002, the trial court ordered Alexander to disclose the names and addresses
of all persons whom he might call as witnesses on or before October
31, 2002. On January 3, 2003, Alexander, who suffers from depression for
which he takes medication, filed his notice of mental disease or defect and
a motion for leave to file a belated notice of insanity defense, which
the trial court granted.
Pursuant to Alexanders insanity defense, the trial court appointed Susan Pauley, Ph.D (Doctor
Pauley), Raymond Horn, Ph.D (Doctor Horn), and Dinesh B. Mehta, M.D. (Doctor Mehta)
to examine Alexander and testify as to his sanity at the time of
the offense. On October 2, 2003, Doctor Pauley reported to the trial
court that, after her interview with Alexander, she concluded that he was highly
intoxicated at the time of the offense and that the incident was not
likely due to a severe mental illness such as Schizophrenia or Bipolar Disorder.
Appellants App. at 223. At trial, Doctor Pauley testified that Alexander
was sane at the time of the offense. Doctor Horn, likewise, examined
Alexander and determined that there was no evidence of insanity. On October
7, 2003, Doctor Mehta reported to the trial court that, after interviewing Alexander,
he found no clinical evidence of insanity. Appellants App. at 142.
That same day, Alexander filed his intent to call Doctor Philip M. Coons
(Doctor Coons) as a witness in support of the defense of insanity.
In response to Alexanders belated disclosure of Doctor Coons, the State filed a
motion in limine to exclude Doctor Coonss testimony. After conducting a hearing,
the trial court granted the States motion to exclude Doctor Coons as a
witness because his testimony would cause a substantial and irreparable prejudice to the
[State.] Appellants App. at 203.
On October 21, 2003, the trial court conducted a jury trial. During
closing arguments, the State contended as follows:
[I]f you think that you can find him guilty of Murder, but Mentally
Ill and that means he will get special treatment at the Department of
Correction, he still gets convicted of Murder and punished, but his punishment will
be somewhat, it would be that the Department of Correction will create a
treatment plan those type of things for him if you find him guilty
but Mentally Ill. And then you can apply that Mentally Ill tag
to the next or to the lesser included as well, the same effect.
And, then there are 2 there is a verdict of course of
not guilty, he didnt do it, and then there is a one that
he was Insane, he was insane and not . . . responsible at
all and that is essentially a not guilty verdict, he doesnt go to
jail for that and he doesnt go to the Department of Correction.
Tr. at 975 (emphasis added). At the conclusion of trial, the trial
court refused to give the jury the following instruction (Instruction Nine), which was
proffered by Alexander:[Instruction Number 9]
Consequences of Not Guilty by Reason of Insanity Verdict
A verdict of not guilty by reason of insanity does not mean that
the accused will be released from custody. Instead, he will remain in
confinement while the courts determine whether he has fully recovered his sanity.
If he has not, he will be placed in a hospital for the
mentally disordered [sic] or other facility, or in inpatient treatment, depending upon the
seriousness or his present mental illness.
Moreover, he cannot be removed from that placement unless and until the court
determines and finds the accused is no longer dangerous or gravely disabled, in
accordance with the law of Indiana.
So that you will have no misunderstandings relating to a verdict of not
guilty by reason of insanity, you have been informed as to the general
scheme of our mental health laws relating to an accused, insane at the
time of his crimes. What happens to the accused under these laws
is not to be considered by you in determining whether the accused was
sane or not at the time he committed his crime. Do not
speculate as to if, or when, the accused will be found sane.
You are not to decide if the accused is currently sane or not
sane. You are to decide only whether the accused was sane at
the time he committed his crime. If upon consideration of all of
the evidence, you believe the accused was insane at the time he committed
his crime, and therefore that he is not responsible by reason of insanity,
you must assume that those officials charged with the operation of our mental
health system will perform their duty in a correct and responsible manner, and
that they will not release the accused unless he can be safely returned
It is a violation of your duty as jurors if you find the
accused sane at the time he committed his offense merely because of a
doubt that the Department of Mental Health or the courts will probably carry
out their responsibilities.
Appellants App. at 302A (emphasis in original). In addition, over Alexanders objection,
the trial court gave the following instruction (States Instruction Two):
Intent, for the purposes of a murder conviction, may be inferred from the
severity, duration, or brutality of the attack. The crime of murder is
established by proof that [Alexander] knowingly or intentionally killed another human being.
The intent to commit murder can be inferred from the use of a
deadly weapon in a manner likely to cause death or serious injury.
Supp. Tr. at 11-12.
Discussion and Decision
On October 24, 2003, the jury found Alexander guilty of murder. The
trial court entered a judgment of conviction on the jurys verdict and sentenced
Alexander to the Indiana Department of Correction for a period of sixty years.
This appeal ensued.
I. Exclusion of a Witness
Alexander first argues that the trial court abused its discretion when it excluded
Doctor Coons as a witness and, thus, denied him of the right to
present the defense of insanity. The record reveals that, on October 7,
2003, i.e., two weeks prior to trial, the trial court conducted a hearing
on the States motion in limine to exclude the testimony of Doctor Coons.
At that hearing, Alexander maintained that, initially, he planned only to consult
with Doctor Coons as an advisory expert, however those plans changed when he
discovered that the three court-appointed experts were going to testify that Alexander was
sane at the time of the offense in question. At the conclusion
of the hearing, the trial court determined that permitting Doctor Coons to testify
cause substantial and irreparable prejudice to the [State,] because the State would
not have sufficient time to secure a witness to counter Doctor Coonss testimony,
nor would it be able to adequately cross-examine the doctor. Appellants App.
at 203. At trial, Alexander asked the trial court if the ruling
in limine to exclude Doctor Coonss testimony was still in effect, to which
the trial court responded in the affirmative. Alexander then made an offer
of proof regarding the substance of Doctor Coonss testimony, concluding, in relevant part,
that Alexander was legally insane at the time of Wifes death.
Trial courts have the discretion to exclude a belatedly disclosed witness when there
is evidence of bad faith on the part of counsel or a showing
of substantial prejudice to the State.
Williams v. State, 714 N.E.2d 644,
651 (Ind. 1999), cert. denied, 528 U.S. 1170 (2000); see also Wiseheart v.
State, 491 N.E.2d 985, 991 (Ind. 1986) (The most extreme sanction of witness
exclusion should not be employed unless the defendants breach has been purposeful or
intentional or unless substantial or irreparable prejudice would result to the State.).
In light of a defendants right to compulsory process under the federal and
state constitutions, there is a strong presumption to allow the testimony of even
late-disclosed witnesses. See Williams, 714 N.E.2d at 651 (citing U.S. Const. amend.
6; Ind. Const. Art. I, § 13).
In the present case, there is no evidence of bad faith on the
part of defense counsel.
See footnote Rather, this issue turns on whether the exclusion
of Doctor Coonss testimony was compelled by a showing of substantial prejudice to
the State. The State was informed of Doctor Coonss expected testimony two
weeks prior to Alexanders trial. At that time, the State could have
deposed Doctor Coons, found its own expert to rebut Doctor Coonss expected testimony,
or, even, requested a continuance to investigate Doctor Coonss evaluation of Alexander.
However, it failed to exercise any of these options. Instead, the State
moved to exclude Doctor Coonss testimony from trial altogether, which the trial court
In short, the trial courts ruling was based upon the States need for
additional time to investigate Doctor Coons and the details of his examination of
Alexander and to secure its own witness to counter Doctor Coonss testimony regarding
Alexanders insanity. Neither of these grounds rises to the level of substantial
prejudice to the State under the facts of this case. The State
was given two weeks to conduct an inquiry into Doctor Coonss testimony.
If additional time were needed, a continuance would plainly have been appropriate.
See Cook v. State, 675 N.E.2d 687, 691 (Ind. 1996) (observing that generally
a continuance, rather than exclusion, is the appropriate remedy for the late disclosure
of a witness). However, a continuance was not sought.
See footnote Under these
circumstances, it appears that the trial court should have either allowed Doctor Coons
to testify at the scheduled trial date or provided the State with a
brief continuance to investigate the testimony of Doctor Coons. The most extreme
sanction, of witness exclusion, on these facts, constituted an abuse of discretion.
See, e.g., Williams, 714 N.E.2d at 652.
Further, we will find an error in the exclusion of evidence harmless if
its probable impact on the jury, in light of all of the evidence
in the case, is sufficiently minor so as not to affect the defendants
substantial rights. Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995).
However, here, Doctor Coons was the sole witness prepared to testify that Alexander
was legally insane at the time that he committed the offense. He
was also the only expert witness with an opinion contrary to the three
court-appointed experts on the issue of Alexanders sanity at the time of Wifes
murder and, therefore, the only viable witness to support Alexanders insanity defense.
As such, the erroneous exclusion of Doctor Coons as a witness was not
harmless. Accordingly, the trial court committed reversible error when it excluded his testimony.
II. Sufficiency of Evidence for Retrial
Having determined that the trial court committed reversible error by excluding Doctor Coonss
testimony, the question of whether Alexander may be subjected to a new trial
depends upon an analysis of the sufficiency of the evidence. Berry v.
State, 725 N.E.2d 939, 944 (Ind. Ct. App. 2000). When deciding whether
retrial is permissible, we will consider all of the evidence admitted by the
trial court, including any erroneously admitted evidence. Id. If, viewed as
a whole, that evidence would have been sufficient to sustain the judgment, retrial
would not offend double jeopardy principles. Id. If, however, the evidence
is insufficient, Alexander may not be retried. Id.
When considering a challenge to the sufficiency of the evidence, we neither reweigh
evidence nor judge witness credibility. Id. Considering only the evidence and
reasonable inferences that support the verdict, we must decide whether there is evidence
of probative value from which a reasonable trier of fact could infer guilt
beyond a reasonable doubt. Browning v. State, 775 N.E.2d 1222, 1226 (Ind.
Ct. App. 2002).
Here, the record reveals that Alexander admitted to Bland, the police, and his
mother that he had shot and killed Wife. Indeed, at trial, Alexander
never disputed that he was the one who killed Wife. Rather, Alexander
merely asserted two defenses: (1) the affirmative defense of insanity; and (2) the
defense of an accidental shooting. Further, with respect to Alexanders intent to
kill Wife, the evidence demonstrates that Wife died of a single gunshot wound
to the head. [T]he use of a deadly weapon in a manner
likely to cause death or serious bodily injury is sufficient evidence of intent
to support a conviction for murder. Chapman v. State, 719 N.E.2d 1232,
1234 (Ind. 1999) (citing Torres v. State, 673 N.E.2d 472, 473 (Ind. 1996)),
rehg denied. Accordingly, this evidence was sufficient to support Alexanders conviction for
murder and retrial would not offend double jeopardy principles. As such, this
case is remanded for possible retrial.
III. Instructing the Jury
Alexander further argues that the trial court abused its discretion by instructing the
jury. Our resolution of the exclusion of a witness issue obviates the
need to address the appropriateness of the trial courts jury instructions. However,
because this issue may reappear, we will address it here.
The giving of jury instructions is a matter within the sound discretion of
the trial court, and we review the trial courts refusal to give a
tendered instruction for an abuse of that discretion.
McCarthy v. State, 751
N.E.2d 753, 755 (Ind. Ct. App. 2001), trans. denied. However, an abuse
of discretion does not occur if the instructions, considered as a whole and
in reference to each other, do not mislead the jury as to the
applicable law. Young v. State, 696 N.E.2d 386, 389-90 (Ind. 1998).
In reviewing a trial courts decision to give or refuse tendered jury instructions,
we consider: (1) whether the instruction correctly states the law; (2) whether
there is evidence in the record to support the giving of the instruction;
and (3) whether the substance of the tendered instruction is covered by other
instructions that are given. Chambers v. State, 734 N.E.2d 578, 580 (Ind.
2000), rehg denied.
In the present case, Alexander asserts that the trial court improperly instructed the
jury regarding the intent element of murder by giving States Instruction Two.
Alexander also asserts that the trial court abused its discretion by refusing to
give an instruction on the penal consequences of a not guilty by reason
of insanity verdict, i.e., Instruction Nine, because the State misled the jury that
such a verdict was tantamount to a finding of not guilty. We
separately address each of these arguments.
A. Intent to Kill Instruction
Alexander first maintains that the trial court abused its discretion when it instructed
the jury with States Instruction Two, which provided, in relevant part, that: Intent,
for the purposes of a murder conviction, may be inferred from the severity,
duration, or brutality of the attack. In particular, Alexander contends that such
instruction impermissibly drew the jurys attention to the brutality of the attack and
created an improper emphasis on the brutality of the attack, thereby harming [his]
alternative defense that the shooting was accidental. Appellants Br. at 38.
In Barany v. State, 658 N.E.2d 60, 65 (Ind. 1995), the defendant challenged
a similar jury instruction on the intent to kill. There, the challenged
The intent to kill can be found from acts, declarations, and conduct of
the defendant at or just immediately before the commission of the offense, from
the character of the weapon used, and from the part of the body
on which the wound was inflicted.
Id. In holding that this instruction is a correct statement of the
law in Indiana[,] our supreme court acknowledged that it has repeatedly held that
the intent to kill may be inferred from the use of a deadly
weapon; the nature, duration, or brutality of the attack; and the circumstances surrounding
the crime. Id. (citing Nunn v. State, 601 N.E.2d 334, 339 (Ind.
More recently, in Cohen v. State, 714 N.E.2d 1168, 1177 (Ind. Ct. App.
1999), trans. denied, another panel of this Court upheld the following intent to
The intent to kill may be inferred from the use of a deadly
weapon used in a manner reasonably calculated to cause death and from the
nature, duration, or brutality of the attack. An intention to kill may
also be found from acts, declarations, and conduct of the defendants at or
just immediately before the commission of the offense, and from noting the part
of the body on which the wound was inflicted.
Id. The Cohen court held that, because the jury instruction at issue
was a correct statement of the law, the trial court did not err
by giving such instruction. See id.; see also Mitchell v. State, 726
N.E.2d 1228 (Ind. 2000) (holding that intent may be inferred from the severity,
duration, or brutality of the attack), rehg denied, overruled on other grounds by
Robinson v. State, 805 N.E.2d 783 (Ind. 2004). Likewise, here, the challenged
instruction was a correct statement of the law and, thus, we find no
abuse of discretion.* * * * *
Moreover, we note that States Instruction Two did not mislead the jury.
In determining whether a particular jury instruction misled the jury, our charge is
to consider the instructions as a whole and in reference to each other.
Luckhart v. State, 780 N.E.2d 1165, 1168 (Ind. Ct. App. 2003).
In the present case, in addition to the intent to kill instruction in
dispute, the trial court also instructed the jury that:
In deciding this case, you must determine the facts from a consideration of
all the evidence and look to these instructions from the court for the
law of the case and find your verdict accordingly. All of the
law of this case has not been embodied in any one instruction.
Therefore, in construing any single instruction you should consider it with all other
The law does not require a direct statement of intent by a defendant
to prove the intent to commit a particular crime. The jury may
infer from all the surrounding circumstances what the intent of [Alexander] was at
the time an act was committed.
Supp. Tr. at 1, 11. These instructions, considered as a whole, adequately
informed the jury regarding the intent element of murder.
B. Instruction on Penal Consequences
Next, Alexander argues that the trial court erred by failing to instruct the
jury on the penal consequences associated with a not guilty by reason of
insanity verdict. We observe that, as a general proposition, it is not
proper to instruct the jury on the specific penal ramifications of its verdicts.
Georgopolus v. State, 735 N.E.2d 1138, 1141 (Ind. 2000). However, our
supreme court has adopted the following procedure for cases tried after September 29,
When the verdict options before a jury include not responsible by reason of
insanity or guilty but mentally ill, and the defendant requests a jury instruction
on the penal consequences of these verdicts, the trial court is required to
give an appropriate instruction or instructions as the case may be.
Id. at 1143. Prior to this pronouncement in Georgopolus, a defendant was
only entitled to an instruction on post-trial procedures if an erroneous view of
the law on the subject had been planted in the jurors minds.
Caldwell v. State, 722 N.E.2d 814, 816-17 (Ind. 2000); see also Dipert v.
State, 259 Ind. 260, 262, 286 N.E.2d 405, 407 (1972).
In the present case, which occurred after September 29, 2000, and included a
verdict option of not responsible by reason of insanity, Alexander was entitled to
an instruction regarding the penal consequences of the verdict options. Indeed, even
assuming arguendo that Alexanders proffered Instruction Nine was an inaccurate statement of the
law, he was still entitled to an appropriate instruction regarding the penal consequences
of a not responsible by reason of insanity verdict. See Georgopolus, 735
N.E.2d at 1141. Accordingly, should this issue recur, the trial court
must instruct the jury on the penal ramifications of its verdict, regardless of
whether an erroneous view of the law has been planted in the jurors
For the foregoing reasons, we reverse Alexanders murder conviction and remand for possible
Reversed and remanded.
SHARPNACK, J., and MAY, J., concur.
Ind. Code § 35-42-1-1.
Footnote: We heard oral argument in this case on December 7, 2004, at
Vincennes University in Vincennes, Indiana. We thank counsel for their advocacy and
extend our appreciation to Vincennes University for hosting the event.
Footnote: On September 13, 2002, police officers found beer cans on the ground
right next to the steps, which would not have been there earlier because
Wife was a good housekeeper. Tr. at 836.
This memory flash, however, is inconsistent with the photographs taken by the
police officers of Wifes death as they show that she was lying on
her stomach when she was killed.
In its Appellees Brief, the State asserts that Alexanders belated disclosure of
Doctor Coons was motivated by bad faith. However, the State refers us
to no actual evidence of bad faith and, indeed, the trial court found
Footnote: The trial court acknowledged that the parties did not seek a continuance
and, moreover, that a continuance would not have been appropriate because of the
publicity surrounding the trial and the congestion of the courts calendar. However,
neither of these reasons justifies the exclusion of a defense witness.
Alexander also contends that the trial court committed fundamental error by permitting
a court-appointed psychologist to testify in the middle of the States case-in-chief, in
violation of Indiana Code Section 35-36-2-2. Because the propriety of the order
of trial is unlikely to be an issue on retrial, we do not
address this issue. However, should this issue recur, we alert the trial
court that Indiana Code Section 35-36-2-2, which governs the admissibility of evidence, is
explicit as to when court-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. Id. (emphasis added).