APPEAL FROM THE WAYNE SUPERIOR COURT II, The Honorable Robert L. Reinke, Judge, Cause No. S2-84-1513-CR.
Pivarnik, J., Shepard, C.j., DeBruler, Givan, and Dickson, JJ., concur.
Defendant-Appellant, Terry Brown, was charged in the Wayne County Superior Court with the crime of murder. The jury returned a verdict of guilty of voluntary manslaughter but mentally ill. The trial court sentenced Brown to twenty (20) years imprisonment. The court then suspended six (6) years of the term, but ordered Brown to be placed on probation for six (6) years after serving his sentence. In this direct appeal, Brown raises the following issues for our review:
1. error in permitting the State to amend the charging information;
2. error in admitting State's exhibits 2, 31, 35 through 39, and 44;
3. error in refusing three of Brown's tendered final instructions; and
4. error in aggravating Brown's sentence.
The facts supporting the jury's verdict are as follows. On August 20, 1984, Brown was home caring for his five month old daughter, Victoria (the victim). Shortly after 8:30 a.m., the victim woke and began crying. Brown prepared her food but she refused to eat. She continued to cry and Brown attempted to comfort her by walking with her. He became frustrated when she would not stop crying. He stated he squeezed her hard against his body in a bear hug after which she stopped crying for a moment.
The victim resumed crying a short time later. Frustrated and angered, Brown threw the victim on the couch several times. Brown also admitted shaking the victim several times. When she continued crying, Brown squeezed her in a bear hug again, this time very hard. Brown stated she went limp after this, and was breathing shallowly. He put her in her crib and left the room. When he checked on her several minutes later, she was gasping for breath. Brown called the hospital and was told to bring her in for treatment. Before he could leave, she stopped breathing. Brown called for an ambulance, and thereafter administered C.P.R. until the ambulance arrived.
The victim was taken to Reid Memorial Hospital in Richmond, Indiana. She then was flown to Methodist Hospital in Indianapolis, Indiana. Her condition was critical and she died the next day.
Dr. Dean Hawley performed the autopsy on the victim. He testified the victim died from child abuse syndrome caused by multiple blunt force and shearing injuries to the victim's head, chest, neck, and abdomen.
Brown gave a videotaped statement to police in which he admitted throwing the victim on the couch several times, squeezing her in a bear hug, and shaking her violently. Brown also admitted that this was not the first time he had ...