Green v. State

65 N.E.3d 620

Danielle GREEN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 58A04–1511–CR–2008.

Court of Appeals of Indiana.

Dec. 16, 2016.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

KIRSCH, Judge.

[1] Following a jury trial, Danielle Green ("Green") appeals her conviction and sentence for murder,¹ a felony. She raises four issues that we consolidate and restate as:

I. Whether the trial court abused its discretion when it excluded certain testimony from a defense psychologist and when it admitted evidence from an Indiana State Police crime scene investigator concerning blood spatter;

II. Whether the trial court abused its discretion when, in sentencing Green, it gave no mitigating weight to her claims that she was a victim of domestic violence; and

III. Whether Green's sixty-year sentence is inappropriate.

[2] We affirm.

Facts and Procedural History

[3] In the early morning hours of May 26, 2014, Green shot Raymond Green ("Raymond") ten times, killing him. The two had been married for approximately ten years, when in January 2014 they divorced for financial reasons,² but continued to maintain a spousal relationship, and, at the time of the shooting, were living together in a trailer in rural Dillsboro, Indiana. Green used a five-shot, .38–caliber revolver. After shooting Raymond five times, Green went to the other end of the trailer to empty and reload the revolver and then returned to the bedroom and shot him five more times.

[4] Green placed the empty cartridges in a plastic sandwich bag and also placed the gun into a small bag. She dragged Raymond's body out of the trailer and put it into a large metal storage box that had belonged to Raymond. Inside the trailer, she removed the sheets and blankets and cut out portions of the carpet where Raymond's blood had stained it. She packed the carpet pieces, sheets, blankets, her sweatshirt, and cleaning supplies into garbage bags and placed them into the box with Raymond's body. Then she locked the metal box with a padlock, and, using farm equipment, moved the box thirty or forty feet from the front of the trailer.

[5] Later that day and the next, Green told family and friends that their dog had attacked and killed Raymond. Raymond's family became suspicious and contacted police. At 2:30 a.m. on May 28, two Ohio County Sheriff's Department deputies went to Green's home in Ohio County to conduct a welfare check on Raymond. Green was at home with her sister and niece and told police that Raymond was not home and was at his job as a truck driver. The deputies left but returned some hours later, and Green gave them consent to search the property. Other law enforcement also arrived at the premises, including Lawrenceburg Police Department officers and Indiana State Police ("ISP") detectives. One deputy saw the large metal box, which smelled and was attracting flies, but Green said the box belonged to Raymond, she did not know what was in it, and officers would need a search warrant to search it. After obtaining a search warrant, authorities returned to Green's home and located Raymond's body in the metal box. Law enforcement obtained a second search warrant and searched the mobile home, finding blood and weapons.

[6] During the late-night hours of May 28 and into the morning hours of May 29, Green gave an audio-recorded statement to police, admitting that she shot Raymond but stating that it was in self-defense. State's Exs. 213, 15–M. She told police that she woke around 6:00 a.m. to use the bathroom and walked through the master bedroom where Raymond was sleeping and that she noticed that he had a loaded, cocked, and ready-to-fire revolver on the nightstand between the bed and bathroom. She described that she bumped into Raymond as she tried to sneak out of the bathroom, and he said, "I'm going to kill you. You need to die[.]" Id. She said that she was in fear for her life. As Green turned her body, Raymond fell onto the bed, but then lunged toward her, at which time Green grabbed the revolver and shot Raymond five times. She said that Raymond was still alive and moving, so out of fear, she went to another room, emptied the gun, reloaded it, and returned to find Raymond seated at the foot of the bed. She told officers that at that time she could see some blood on Raymond's left side. He again told her that she needed to die and tried to lunge toward her, so she shot him five more times, and he slid to the floor.

[7] Later on May 29, a detective returned to Green's home to interview her again, and Green agreed to provide a re-enactment of the shooting. She told and showed police how she had used the bathroom around 6:00 or 6:30 a.m. and noticed the revolver on the nightstand. She also showed them how she encountered Raymond as she was leaving the bathroom and described that he started "to come after" her. State's Ex. 214; Tr. at 1300. He told her several times, "I'm going to kill you. You need to die." Id. She grabbed the gun, and he fell on the bed, and although she did not remember pulling the trigger or hearing gun shots, she did remember "seeing blood on the back of his head." Id. Green told officers that Raymond was sitting and whispering that he was going to kill her, so she ran to the other room, unloaded and reloaded the gun, and returned to find him "sitting a little bit closer" and "he started to get up a little bit" so, being in fear for her life, she shot him again, at which time she remembered him falling to the floor. Tr. at 1301.

[8] On June 3, 2014, the State charged Green with murder. On August 29, 2014, Green filed a Notice of Affirmative Defenses asserting that she intended to pursue the defense of insanity pursuant to Indiana Code 35–41–3–6 and that she intended to present evidence that she acted in self-defense, including evidence of domestic violence under the effects of battery statute, Indiana Code 35–41–3–11, often called battered woman syndrome ("BWS"). Green's position was that Raymond abused her and that, when she learned that he was trying to obtain a life insurance policy on her life, she feared for her life and thought he planned to kill her and that, on the night in question, Raymond attacked her and she shot him in self-defense. In February 2015, the trial court appointed two doctors to evaluate Green pursuant to her assertion of an insanity defense.

[9] Green hired Dr. Karla Fischer ("Dr. Fischer"), a research psychologist, law professor, and domestic violence consultant, to conduct an evaluation of Green. Green intended to present Dr. Fischer's testimony regarding the role of domestic violence in the crime. Dr. Fischer met with and interviewed Green on February 9 and 10, 2015. Dr. Fischer evaluated Green by use of an Abusive Behavior Observation Checklist ("ABOC"), an interview, and a post-traumatic stress disorder ("PTSD") DSM–5 symptom inventory. Green told Dr. Fischer that Raymond had abused her, emotionally, physically, and sexually, for years. Dr. Fischer concluded that Green had been the victim of years of domestic violence and suffered from PTSD and that Green did not plan or intend to kill Raymond. A few days after her evaluation with Dr. Fischer, Green filed a Notice of Withdrawal of Affirmative Defenses, withdrawing her intent to use the statutory defenses of insanity and BWS. Appellant's App. at 98–99.³

[10] Following its deposition of Dr. Fischer in May 2015, the State filed a Motion in Limine to Exclude the Testimony Dr. Karla Fisher, on the basis that her statements about the alleged abuse suffered by Green would be hearsay, that she was not qualified to and did not properly diagnose PTSD, and that her testimony bore upon the affirmative defenses that Green withdrew. Tr. at 114–17.⁴ The trial court conducted an evidentiary hearing, and Green presented the testimony of Dr. Fischer, who testified that her opinions and conclusions would include that Green had PTSD resulting from domestic violence and that she was in a traumatized state at the time of the shooting, as well as after the shooting, due to PTSD. The State presented the testimony of Dr. Edward Connor ("Dr. Connor"), a licensed psychologist, who noted the differences between psychology used in epidemiological psychology as compared to clinical psychology and forensic psychology. Dr. Conner stated that PTSD is a mental illness and that, in Indiana, one must be a licensed psychologist to make a diagnosis of PTSD. Id. at 225. He also testified that Dr. Fischer did not follow recognized protocols that would consider reliability and validity scales or use a psychometric-based assessment in order to assess if the person was malingering or embellishing, which would be appropriate to do when, as here, the person had been charged with a crime. Id. at 223, 225, 226.

[11] After taking the matter under advisement, the trial court entered a written order in August 2015 granting the State's motion in limine. The court found, among other things, that (1) Dr. Fischer had extensive experience as a research psychologist but that she "has no experience or expertise as a clinical psychologist or a forensic psychologist[,]" and (2) although she diagnosed [Green] with [PTSD] due to shooting [Raymond] and due to being a victim of domestic violence[,]" Dr. Fischer had received no formal training regarding the diagnosis of PTSD and that her diagnosis of PTSD "was not done according to standards recognized by the scientific community." Appellant's App. at 1322–23. The trial court further observed that Dr. Fischer's evaluation did not contain reliability measures and did not test for malingering, which would assess whether Green was embellishing or exaggerating her situation. The trial court also concluded that Green was attempting to admit evidence in support of an insanity defense and a BWS defense, both of which Green had withdrawn....