Edward D. Bagshaw v. State of Indiana ( 2014 )


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  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before
    any court except for the purpose of                                           Jun 27 2014, 9:25 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
    MARK SMALL                                          GREGORY F. ZOELLER
    Indianapolis, Indiana                               Attorney General of Indiana
    IAN McLEAN
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    EDWARD D. BAGSHAW,                                  )
    )
    Appellant-Defendant,                         )
    )
    vs.                                  )      No. 10A01-1305-CR-236
    )
    STATE OF INDIANA,                                   )
    )
    Appellee-Plaintiff.                          )
    APPEAL FROM THE CLARK CIRCUIT COURT
    The Honorable Vicki L. Carmichael, Judge
    Cause No. 10C04-1111-MR-4
    June 27, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    BRADFORD, Judge
    CASE SUMMARY
    Appellant-Defendant Edward D. Bagshaw killed his ex-wife Kelly Bagshaw by
    stabbing her fifty-seven times, with the fatal wound being a severed jugular vein. Appellee-
    Plaintiff the State of Indiana charged Bagshaw with murder, a felony. Bagshaw interposed
    an insanity defense and was initially evaluated for sanity by two court-appointed doctors,
    psychologist Dr. Heather Henderson-Galligan, Ph.D., and forensic psychiatrist Dr. Steve
    Shelton, M.D. Approximately one year after the evaluations and during trial, Bagshaw
    moved to exclude Dr. Shelton on the basis that Dr. Shelton had previously treated Bagshaw
    pursuant to Dr. Shelton’s contract to provide services to inmates in the Clark County Jail.
    The trial court granted Bagshaw’s motion and ordered Levois Davis, of Forensic Services of
    Southern Indiana, LLC, to find another evaluator.
    Davis located psychiatrist Dr. Kelly Butler, M.D., who then evaluated Bagshaw for
    sanity and provided a report. Dr. Butler worked in the same practice group as Dr. Shelton
    and referred to Dr. Henderson-Galligan’s report while performing her evaluation. Both Dr.
    Henderson-Galligan and Dr. Butler, to whose testimony Bagshaw objected, opined at trial
    that Bagshaw was legally sane when he killed Kelly. The jury found Bagshaw guilty as
    charged, and the trial court sentenced Bagshaw to sixty-five years of incarceration, with five
    years suspended to probation. Bagshaw contends that the trial court abused its discretion in
    allowing Dr. Butler’s testimony and that his sentence is inappropriately harsh. We affirm.
    FACTS AND PROCEDURAL HISTORY
    2
    Bagshaw and Kelly were married in 2004, but, by November of 2011, they had been
    separated for approximately five months, and Kelly had filed for divorce. The marriage
    produced Kaylee and Bryce, who were six and two, respectively, in November of 2011. The
    children were visiting with Bagshaw at his Jeffersonville apartment on November 12 and 13,
    2011, and Kelly attempted to retrieve the children in the early afternoon of November 13.
    Buffy Jackson and her husband, William Johnson, were taking laundry from their apartment
    to their truck when they heard muffled screaming. When Jackson and Johnson pulled out of
    their parking space, they noticed Kelly, face-down, in a pool of blood approximately four feet
    in diameter. Jackson looked up and saw a little girl, who Johnson knew to be Kaylee,
    looking out of Bagshaw’s apartment window at the scene below. Johnson attempted to
    access Bagshaw’s apartment—where he had seen Kaylee—but turned back when he saw
    blood on the doorknob and in the entryway.
    Meanwhile, Bagshaw returned to his apartment and called 911, telling the dispatcher
    that he thought he had just killed his wife. When police arrived soon thereafter, they found
    Bagshaw standing in the apartment doorway with blood all over his hands and shirt, Bryce
    eating ice cream at the kitchen table, and Kaylee still looking out the window. Kaylee told
    police that she had seen Kelly’s vehicle shaking and Kelly falling to the ground, bleeding. A
    search of Kelly’s car uncovered a lock-blade knife with a brass-knuckle grip with a logo that
    read, “ASSASSIN[.]” State’s Ex. 60. Bagshaw had stabbed Kelly fifty-seven times, with the
    fatal wound being a severed jugular vein in Kelly’s neck.
    3
    On November 16, 2011, the State charged Bagshaw with murder, and five days later
    Bagshaw filed a notice of intent to interpose an insanity defense. On November 23, 2011,
    Dr. Shelton saw Bagshaw in the Clark County Jail pursuant to his contract to provide
    psychological services to inmates. On November 29, 2011, the trial court appointed Drs.
    Shelton and Henderson-Galligan to evaluate Bagshaw. On December 1, 2011, Dr. Shelton
    evaluated Bagshaw and submitted his report the same day. Dr. Henderson-Galligan, a
    psychologist who practices in Jeffersonville and Louisville, Kentucky, evaluated Bagshaw on
    December 6, 2011, and submitted her report on January 20, 2012.
    Bagshaw’s trial began on January 8, 2013. The first expert evaluation of Bagshaw’s
    sanity heard by the jury was that of Dr. George Parker, M.D., who was retained and called by
    Bagshaw. Dr. Parker opined that Bagshaw suffered from moderate to severe depression and
    dissociative amnesia, but also testified that he was unable to determine whether Bagshaw was
    sane or insane when he killed Kelly. On January 15, 2013, after Bagshaw rested, the trial
    court called the first of its appointed experts, Dr. Henderson-Galligan. Dr. Henderson-
    Galligan testified that although she had diagnosed Bagshaw with major depression with
    psychotic features, he was able to appreciate the wrongfulness of his actions at the time of
    Kelly’s death.
    On January 16, 2013, Bagshaw sought to voir dire Dr. Shelton before he gave his
    testimony. During voir dire, Dr. Shelton affirmed that he had seen and treated Bagshaw prior
    to his appointment by the court. Bagshaw moved to exclude Dr. Shelton on the basis that he
    had a conflict of interest, which motion the trial court granted. The trial court notified the
    4
    jury that an unavailable witness had resulted in a two-day adjournment. The trial court
    arranged with Davis to locate another evaluator, and Davis located Dr. Butler, who
    interviewed Bagshaw on January 17, 2013. Dr. Butler interviewed Bagshaw at the Clark
    County Jail for over an hour between 1:09 and 2:36 p.m. Dr. Butler prepared and, that
    evening, sent Davis electronic copies of both a draft report and, later, a final report.
    On January 18, 2013, the trial court contacted Davis and requested that he deliver Dr.
    Butler’s report to the court. In error, Davis printed a copy of Dr. Butler’s unsigned draft
    report and brought it to court. Also that day, Bagshaw filed a motion to exclude Dr. Butler’s
    testimony as well, alleging that she had only interviewed Bagshaw for fifteen minutes and
    had not “review[ed] any information regarding the alleged offense” before the interview.
    Appellant’s App. p. 121. Bagshaw also alleged that Dr. Butler had repeatedly used and
    referred to Dr. Shelton’s evaluation during her own evaluation and that her professional
    association with Dr. Shelton warranted her exclusion. The trial court held a hearing on
    Bagshaw’s motion to exclude Dr. Butler.
    At the hearing, Dr. Butler testified that she interviewed Bagshaw on January 17, 2013,
    for approximately one hour and fifteen minutes. Additionally, Dr. Butler testified that she
    referred to a list of Bagshaw’s medications and Dr. Henderson-Galligan’s report, which
    report Davis had provided and which she reviewed for background purposes and to identify
    inconsistent statements Bagshaw might make. Davis had also provided both Drs. Butler and
    Henderson-Galligan with a draft “finishing paragraph so there’s no misunderstanding that
    they’re following Indiana Code,” which Davis routinely provided to psychologists and
    5
    psychiatrists performing sanity evaluations. Tr. p. 824. Dr. Butler testified that she did not
    make use of Dr. Shelton’s report, believing that it would have been inappropriate to do so.
    Dr. Butler also reviewed police reports, Bagshaw’s videotaped police interview, and crime
    scene photographs, spent “quite a lot of time” reviewing the professional guidelines relevant
    to her evaluation and, all told, spent approximately six hours preparing a report. Tr. p. 795.
    Dr. Butler testified that professional guidelines did not prevent her from referring to Dr.
    Henderson-Galligan’s report.
    Bagshaw examined Dr. Butler regarding the draft report that Davis had brought to
    court, focusing on the disposition paragraph and its similarity to the disposition paragraph in
    Dr. Henderson-Galligan’s report. The disposition of Dr. Henderson-Galligan’s report reads
    as follows:
    In accordance with I.C. 35-41-3-6,[1] Mr. Bagshaw is a cognitively and
    mentally intact individual. At present, he is able to articulate his current
    charges. It is the opinion of this examiner that Edward “Dale” Bagshaw did
    indeed engage in prohibitive [sic] conduct and does not appear to be mentally
    insane at this time, nor at the time of the alleged event, and he does have the
    capacity to appreciate the wrongfulness of his alleged conduct and offense at
    the time of the events on November 13, 2011.
    Court’s Ex. 2. The disposition of Dr. Butler’s draft report reads as follows:
    In accordance with IC 35-41-3-6, Mr. Bagshaw is a cognitively and mentally
    intact individual. At the present time, he is able to articulate and understand
    the charges against him. It is the opinion of this examiner that Edward “Dale”
    Bagshaw did indeed engage in prohibitive [sic] conduct and does not appear to
    be mentally insane at this time, nor at the time of the alleged event, and he
    1
    Indiana Code section 35-41-3-6(a) provides that “[a] person is not responsible for having engaged in
    prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of
    the conduct at the time of the offense.”
    6
    does have the capacity to appreciate the wrongfulness of his conduct and
    offense at the time of the event of 11/13/11.
    Defendant’s Ex. 12.          Bagshaw requested that Dr. Butler be excluded based on her
    employment in Dr. Shelton’s practice and because her review of Dr. Henderson-Galligan’s
    report called the entire process into question. The trial court ruled that Dr. Butler could
    testify.
    Following a recess, the trial court called Dr. Butler to the stand. Dr. Butler opined that
    Bagshaw was sane at the time of Kelly’s death. Dr. Butler also brought her final report to
    court, which was admitted into evidence. The conclusion paragraph of Dr. Butler’s final
    report reads as follows:
    Therefore, pursuant to Indiana Code 35-41-3-6, this Mr. Bagshaw is
    responsible for having engaged in prohibited conduct and does not appear to
    be mentally insane at this time or at the time of this act, as he was able to
    appreciate the wrongfulness of the conduct at the time of his offense on the
    night of 11/13/11.
    Court’s Ex. 4.
    When Bagshaw examined Dr. Butler, he asked her if her disposition contained the
    language from Dr. Henderson-Galligan’s report stating that Bagshaw was “a cognitively and
    mentally intact individual[,]” and Dr. Butler replied that it did not. Tr. p. 881. At this point,
    the trial court noticed that the language in the final report did not match the copy that Davis
    had provided the trial court and excused the jury. Bagshaw noted that he had just conducted
    voir dire on Dr. Butler for forty minutes based on the draft report without Dr. Butler pointing
    out the discrepancy, and he argued that “[t]he whole process has totally been gutted by the
    way it’s going down.” Tr. p. 885. After being given a chance to review the final report,
    7
    Bagshaw moved for a mistrial on the basis that jury confusion regarding the different reports
    adversely affected his ability to receive a fair trial.
    The trial court called Dr. Butler back in for questioning. Dr. Butler explained that she
    was given a transcription copy of her report at approximately 4:30 p.m. the day before but
    that she had revised it, finishing her revisions at approximately 7:30 p.m. Dr. Butler emailed
    copies of both reports to Davis. When questioned, Davis explained that both versions of the
    report were sent to him with “exactly the same name” and that he printed out the wrong one
    “in [a] rush this morning to get it to the Court[.]” Tr. pp. 894-95. Bagshaw renewed his
    request to have Dr. Butler excluded, which request the trial court denied, remarking that the
    issues raised by Bagshaw could be “brought out in cross-examination and brought out in
    closing to the jury[.]” Tr. p. 898.
    Back in front of the jury, Bagshaw examined Dr. Butler on the similarities between
    the final paragraph of her draft report (which was also admitted into evidence) and the final
    paragraph of Dr. Henderson-Galligan’s report. Dr. Butler testified that she had used the
    concluding paragraph of Dr. Henderson-Galligan’s as a reference for the legal conclusions
    contained in her final report. When Dr. Butler finished testifying, Bagshaw was allowed to
    present telephonic testimony from Dr. Parker, who testified that, in his opinion, an
    “independent” evaluator should avoid learning about reports by other persons evaluating a
    defendant because of the possibility of inaccurate information or being swayed by an
    especially well-written report. Tr. p. 934. The jury found Bagshaw guilty of murder. On
    8
    April 22, 2013, the trial court sentenced Bagshaw to sixty-five years of incarceration, with
    five years suspended to probation.
    DISCUSSION AND DECISION
    I. Whether the Trial Court Abused its Discretion in Allowing Dr. Butler to Testify
    The admissibility of evidence is within the sound discretion of the trial court. Curley
    v. State, 
    777 N.E.2d 58
    , 60 (Ind. Ct. App. 2002). We will only reverse a trial court’s decision
    on the admissibility of evidence upon a showing of an abuse of that discretion. 
    Id. An abuse
    of discretion may occur if the trial court’s decision is clearly against the logic and effect of
    the facts and circumstances before the court, or if the court has misinterpreted the law. 
    Id. The Court
    of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis
    in the record, even though it was not the reason enunciated by the trial court. Moore v. State,
    
    839 N.E.2d 178
    , 182 (Ind. Ct. App. 2005). We do not reweigh the evidence and consider the
    evidence most favorable to the trial court’s ruling. Hirsey v. State, 
    852 N.E.2d 1008
    , 1012
    (Ind. Ct. App. 2006).
    A. Dr. Butler’s Qualifications
    Bagshaw contends that Dr. Butler lacked the experience to conduct a sanity
    evaluation. Indiana Evidence Rule 702, which governs opinion testimony by experts,
    provides, in relevant part, as follows:
    (a) If scientific, technical, or other specialized knowledge will assist the
    trier of fact to understand the evidence or to determine a fact in issue, a witness
    qualified as an expert by knowledge, skill, experience, training, or education,
    may testify thereto in the form of an opinion or otherwise.
    Bagshaw argues that Dr. Butler lacked the necessary skill, knowledge, or experience
    9
    to perform a sanity evaluation. Initially, we note that pursuant to the plain language of Rule
    702(a), an expert witness may be qualified to offer an expert opinion by virtue of knowledge,
    skill, experience, training, or education, and Bagshaw does not argue that Dr. Butler lacked
    sufficient training or education. Dr. Butler had been practicing psychiatry for eleven years,
    had treated several thousands of patients, is board-certified in psychiatry, and had been
    trained in sanity evaluations during her residency. Essentially, Bagshaw’s argument is based
    on the fact that this was Dr. Butler’s first sanity evaluation, and we will, for fairly obvious
    reasons, not adopt a rule that all first sanity evaluations must be rejected out-of-hand.
    Bagshaw has failed to establish that Dr. Butler was unqualified pursuant to Rule 702.
    B. Dr. Butler’s Evaluation Technique
    Bagshaw contends that, even if Dr. Butler were qualified to conduct a sanity
    evaluation, she failed to conform to the applicable guidelines for doing so. Bagshaw argues
    that Dr. Butler’s interview of Bagshaw was not lengthy enough, she failed to adequately
    prepare for the interview, and she improperly reviewed Dr. Henderson-Galligan’s report.
    Bagshaw relies heavily on his Exhibit 10, an article that appeared in the Journal of the
    American Academy of Psychiatry and the Law entitled “Practice Guideline: Evaluation of
    Competence to Stand Trial.” We find this argument unavailing. First, Bagshaw has not
    established that his Exhibit 10 represents anything like a universally-accepted methodology
    for psychological evaluations in a legal setting. Second, even assuming, arguendo, that the
    article is somehow binding in some context, the question in this case is not whether Bagshaw
    10
    was competent to stand trial, but whether he was insane when he killed Kelly.2 Finally, even
    if we were to accept that Bagshaw’s Exhibit 10 somehow applied to Dr. Butler’s evaluation,
    nothing in it establishes that her interview was per se too short, that she inadequately
    prepared for it, or that reviewing Dr. Henderson-Galligan’s report was somehow improper.
    Additionally, Dr. Butler testified that her review of Dr. Henderson-Galligan’s report did not
    affect her objectivity in any way. Although Dr. Parker testified that an evaluator might be
    improperly influenced by the report of another, there is no indication that Dr. Butler was so
    influenced, and, in any event, the jury was free to disregard Dr. Parker’s opinion. Bagshaw
    has failed to establish that Dr. Butler’s methodology was fatally flawed.
    C. Dr. Butler’s Professional Relationship with Dr. Shelton
    Finally, Bagshaw argues that Dr. Butler’s employment in the same practice group as
    Dr. Shelton should have resulted in Dr. Butler’s exclusion. Put another way, because Dr.
    Shelton was found to not be disinterested, Dr. Butler cannot be disinterested by virtue of their
    professional relationship. Bagshaw, however, does not claim, much less establish, that Drs.
    Shelton and Butler ever even spoke to one another regarding Bagshaw’s case, much less that
    they somehow improperly collaborated. The Indiana Supreme Court concluded, in a case
    where the two psychiatrists who performed the sanity evaluation were brothers who shared a
    practice, “that the psychiatrists in this case were not inherently biased simply because they
    shared professional and familial relationships. They conducted separate examinations and
    2
    In Indiana, one is competent to stand trial if one has “the ability to understand the proceedings and
    assist in the preparation of a defense[.]” Ind. Code § 35-36-3-1(a).
    11
    reached independent conclusions, just as unrelated psychiatrists would have done under the
    same circumstances.” Stratton v. State, 
    499 N.E.2d 1123
    , 1124 (Ind. 1986). The record
    indicates that Drs. Shelton and Butler conducted completely separate evaluations and reached
    independent conclusions regarding Bagshaw’s sanity. As such, despite Dr. Shelton’s
    exclusion, Bagshaw has failed to establish that the trial court abused its discretion in refusing
    to exclude Dr. Butler because she practices with Dr. Shelton.
    D. Different Versions of Dr. Butler’s Report
    Finally, Bagshaw contends that Dr. Butler should have been excluded because she
    allegedly, and improperly, “changed” her report during trial. The record does not support this
    allegation. At most, the record indicates that Davis accidentally printed and brought to court
    a copy of Dr. Butler’s draft report, which Bagshaw used during a voir dire of Dr. Butler.
    Eventually, the mistake was discovered, and the final report, which had been brought by Dr.
    Butler, was admitted into evidence. Reduced to its essence, Bagshaw’s argument seems to be
    that some impropriety was committed that requires Dr. Butler’s exclusion. The record
    indicates that only a simple mistake was committed, one that was quickly corrected.
    Bagshaw has failed to establish that the trial court abused its discretion in allowing Dr. Butler
    to testify.
    II. Whether the Trial Court Abused its Discretion in
    Denying Bagshaw’s Motion for Mistrial
    Bagshaw contends that the trial court abused its discretion in denying his mistrial
    motion, which was based on his allegation that Dr. Butler “changed” her report.
    We review a trial court’s decision to deny a mistrial for abuse of
    12
    discretion because the trial court is in “the best position to gauge the
    surrounding circumstances of an event and its impact on the jury.” McManus
    v. State, 
    814 N.E.2d 253
    , 260 (Ind. 2004). A mistrial is appropriate only when
    the questioned conduct is “so prejudicial and inflammatory that [the defendant]
    was placed in a position of grave peril to which he should not have been
    subjected.” Mickens v. State, 
    742 N.E.2d 927
    , 929 (Ind. 2001) (quoting
    Gregory v. State, 
    540 N.E.2d 585
    , 589 (Ind. 1989)). The gravity of the peril is
    measured by the conduct’s probable persuasive effect on the jury. 
    Id. Pittman v.
    State, 
    885 N.E.2d 1246
    , 1255 (Ind. 2008).
    When faced with a circumstance that a defendant believes might warrant mistrial,
    [g]enerally, the correct procedure is to request an admonishment. See Brown
    v. State, 
    572 N.E.2d 496
    , 498 (Ind. 1991). However, if counsel is not satisfied
    with the admonishment or it is obvious that the admonishment will not be
    sufficient to cure the error, counsel may then move for a mistrial. See Dresser
    v. State, 
    454 N.E.2d 406
    , 407-08 (Ind. 1983). [A] failure to request an
    admonishment or move for a mistrial results in waiver of the issue. See
    Robinson v. State, 
    693 N.E.2d 548
    , 552 (Ind. 1998).
    Etienne v. State, 
    716 N.E.2d 457
    , 461 (Ind. 1999). Here, although Bagshaw requested a
    mistrial, he did not first request an admonishment. As such, Bagshaw has waived the issue
    for appellate review.
    Even if Bagshaw had properly preserved the issue, we would conclude that the trial
    court did not abuse its discretion in denying Bagshaw’s mistrial motion. Put simply, there is
    no indication that the confusion surrounding the two reports had any effect on the jury
    whatsoever. Bagshaw suggests that his trial counsel’s seeming confusion regarding his
    client’s case affected the jury in a way detrimental to him. The record, however, does not
    support a conclusion that the jury had any idea that Bagshaw’s trial counsel was ever
    confused regarding different versions of the report. While it may be true that Bagshaw’s
    questioned Dr. Butler while referring to her draft report and believing it to be the final report,
    13
    this only occurred during a voir dire that occurred outside the jury’s presence. The only
    references to the draft report made in front of the jury made it clear that it was, indeed, the
    draft report. Bagshaw has failed to establish that he was placed in grave peril such that
    mistrial was warranted.
    III. Whether Bagshaw’s Sentence is Inappropriate
    We “may revise a sentence authorized by statute if, after due consideration of the trial
    court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the
    offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate
    review of sentences must give due consideration to the trial court’s sentence because of the
    special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an
    authorization to revise sentences when certain broad conditions are satisfied.” Shouse v.
    State, 
    849 N.E.2d 650
    , 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks
    omitted). “A person who commits murder shall be imprisoned for a fixed term of between
    forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55)
    years.” Ind. Code § 35-50-2-3. As previously mentioned, the trial court sentenced Bagshaw
    to a sentence of sixty-five years of incarceration, with five years suspended to probation.
    The nature of Bagshaw’s offense warrants an enhanced sentence. Bagshaw did not
    just kill Kelly, he stabbed her fifty-seven times, including the fatal blow and numerous
    defensive wounds, one of which went straight through Kelly’s forearm. Bagshaw’s crime
    does not seem to have been impulsive—it occurred in Kelly’s car and was committed with a
    knife Bagshaw brought from his apartment. Moreover, the record indicates that Kelly did not
    14
    die immediately: it would have taken several minutes for Kelly to lose consciousness, and
    she would have felt her wounds. Bagshaw’s murder of Kelly was also committed in such a
    way that her six-year-old daughter Kaylee witnessed portions of the attack and watched her
    mother die. As for Bagshaw’s character, he notes that did not have a significant criminal
    history when he murdered Kelly and that he was gainfully employed. That said, Bagshaw’s
    character is still that of a man who brutally murdered his ex-wife in front of one of their
    children, effectively orphaning those children in the process. In light of the nature of
    Bagshaw’s offense and his character, we cannot say that he has established that his sixty-
    five-year sentence, with five years suspended to probation, is inappropriate.
    The judgment of the trial court is affirmed.
    RILEY, J., and ROBB, J., concur.
    15