BENGERT v. STATE (2021)

MEMORANDUM DECISION

[1] Jacob Wesley Donald Bengert appeals his conviction for murder. He raises two issues which we revise and restate as:

I. Whether the trial court committed fundamental error when it admitted certain evidence; and

II. Whether the trial court abused its discretion when it allowed certain testimony about the cause of the victim's injuries.

We affirm.

Facts and Procedural History

[2] K.B. was born on September 16, 2019, to Chelsea Marksberry and Bengert, and they lived in the basement of the house of Bengert's sister in Evansville.

[3] On January 8, 2020, Bengert was caring for K.B. while Marksberry was at work, and she returned around 9 p.m. At around 8 a.m. the next morning, an emergency call was placed and “[t]hey believe [K.B.] had rolled off the bed” and was not breathing. Transcript Volume II at 126. Fire department personnel arrived at the scene followed by law enforcement who encountered Marksberry and found K.B. deceased in a small baby bouncer seat with “obvious signs” of trauma on the face and blood pooling around the bottom of the eyes which “almost looked like a black eye.” Id. at 127. The officers could tell, as had fire department personnel, that “the baby had been down longer than what was first assumed.” Id. Evansville Police Department Crime Scene Investigator Ben Gentry took photographs of K.B. and the scene, and officers obtained a search warrant for the residence. K.B. had bruising on the forehead, front of the left ear, back, neck, tailbone, fingertip, midback, inner right palm, genital scrotum area, left abdomen, inner upper left portions of both legs, upper right chest, front of his right forearm, upper right arm, right hip, and lower left hip area; abrasions in the upper left back and shoulder area and to the tip of the penis; injuries consistent with burns to the right eyelid, right brow, bridge of the nose, upper and lower lips, chin, rear of the head, upper right chest, inner left hand, and bottom of the left foot; and injuries to the upper rear leg, front and rear of the right forearm, left index finger, and right middle knuckle.

[4] K.B.’s body was taken to the Vanderburgh County Coroner's office by the deputy coroner where his injuries were photographed, an external examination was conducted, and x-rays were taken. Dr. Christopher Kiefer performed the autopsy that same day, which Coroner Steve Lockyear attended in its entirety. Dr. Kiefer consulted Dr. Rudolph Castellani, a licensed neuropathologist and anatomic pathologist from the West Virginia University Health Science Center, to interpret K.B.’s brain and determine the cause and manner of death, and he provided Dr. Castellani with sections of K.B.’s brain,¹ dura mater, his eyes and spinal cord, and thirty-one autopsy photographs in which Dr. Kiefer “had reflected various structures.” Id. at 172. Dr. Castellani found that K.B. had sustained an acute subdural hematoma on the left side, an acute contusion to the left frontal lobe, hemorrhaging within the retinas and the whites of the eyes, hemorrhaging around the spinal cord nerve roots, and folds in the retina, “each one of [which] has an association with traumatic brain injury in general and inflicted injury in particular.” Id. at 159. Based on these findings, Coroner Lockyear determined that the cause of death was abusive head trauma and the manner of death was homicide.

[5] Police apprehended Bengert, who had fled the scene before the fire department arrived, at a different location along railroad tracks on January 10, 2020, approximately thirty hours after law enforcement responded to the 911 call. Bengert waived his Miranda Rights upon being advised of them and gave a statement at the police department, in which he indicated he was bouncing K.B. on his knee and pushed him to the floor and dropped him. That same day, the State charged Bengert with K.B.’s murder.

[6] Following an initial jury trial resulting in a deadlocked jury, the State charged Bengert additionally with neglect of a dependent resulting in death as a level 1 felony.²

[7] On October 28, 2020, a second jury trial was held at which the court admitted as exhibits photographs of K.B. and his injuries taken at the scene and at the morgue, K.B.’s death certificate and Inquest report, Dr. Castellani's neuropathology report, and a recording of Bengert's statement to police.

[8] Investigator Gentry testified as to the injuries, injuries consistent with burns, abrasions, and bruises he observed on K.B., and Coroner Lockyear testified that the deputy coroner responded to the scene and brought K.B. “back to the morgue” to “do a more extensive examination and schedule an autopsy.” Id. at 145. Coroner Lockyear indicated that x-rays, photographs, and an external examination were conducted on K.B., and when asked to identify what he indicated was the cause and manner of death in this case, he answered: “Abusive head trauma and the manner of death is homicide.” Id. at 147.

[9] At the onset of Dr. Castellani's testimony, he explained his employment, educational background and training, and licensure to practice. At the prompting of the prosecuting attorney to provide a “general layperson's understanding of what a neuropathologist does on a daily basis,” he stated he recognized patterns of injury and interpreted the findings, that in the autopsy setting he interprets entire brains for various diagnoses, such as “putting together traumatic brain injuries,” and that it “could be basically interpreting anything that might happen to the brain and assigning a diagnosis to that pattern of changes.” Id. at 155. He testified he received a call from Dr. Keifer's assistant and that they sent him various materials, and he answered affirmatively when asked if he “provide[d] some findings with regards to the brain and eyeballs of” K.B. Id. at 157. He explained that Dr. Keifer sent to him “brain tissue after he examined it,” “what we call paraffin blocks of eyeballs,” and “seven glass slides” that Dr. Keifer had prepared. Id. at 161-162. Describing the completion of his report, he testified he had a conversation with Dr. Keifer, and he indicated that his findings would not have differed had he viewed the items on which they were based at the time of the autopsy.

[10] When Dr. Castellani was shown the photograph exhibits of K.B., Bengert's counsel asked preliminarily whether it appeared to be the same child as he had seen while previously reviewing pictures, and Dr. Castellani answered that it fit the description. In response to follow-up, Dr. Castellani stated he had not previously seen the photographs presented but had seen others and that he had seen the description of the various lesions from Dr. Keifer. After he characterized certain injuries shown in two photograph exhibits, the prosecuting attorney asked if he had any opinion as to the cause of the injuries based on the information he received. Bengert's counsel objected, stating in part that “this witness did not conduct the autopsy,” “[t]hese are photos he's just laying eyes on as we sit here today,” “I think the most appropriate proper witness would be the forensic pathologist that conducted the autopsy,” “they have him sit in the place of the forensic pathologist to be able to testify to what the injuries are from the photographs,” and “I just think that's improper.” Id. at 166. The court overruled the objection and stated: “If you feel qualified to answer the questions, you answer them. If you don't, then don't answer them.” Id. Dr. Castellani answered the question and stated: “Well, these are contusions and contusions are by definition blunt force trauma, so they would be traumatic injuries.” Id. When he was later presented with photographs of K.B.’s chest, he indicated the injury was something for which he would “defer to a forensic pathologist,” and when asked about the remaining photographs, he indicated that he was “not going to interpret” another exhibit containing a picture of a lesion on the back of K.B.’s head. Id. at 167.

[11] Dr. Castellani further indicated he believed his anatomical findings meant K.B. died by “[a]busive head trauma homicide,” that the injuries would not be consistent with an accidental fall, and that if a child were dropped onto concrete from “a changing table, from a bed, or from the arms” of a standing parent, a subdural hematoma would “be very, very unusual.” Id. at 163, 172. During cross-examination, he testified the subdural hematoma was “fairly sizeable” and, when asked, opined that it was possible that that alone was the cause of death. Id. at 169. On redirect, he testified that K.B. died in his opinion by “[b]lunt force trauma to the head.” Id. at 174.

[12] The jury found Bengert guilty of both charges, and the court merged the conviction for neglect of a dependent resulting in death into the conviction for murder and sentenced Bengert to sixty-five years.

Discussion

I.

[13] The first issue is whether the trial court committed fundamental error when it admitted Dr. Castellani's Neuropathology Report and his testimony as to his findings. Bengert argues the admission of the evidence falls substantially short of meeting the chain of custody requirements and contends that the record is “completely devoid of any indicia” that the brain and eye samples examined by Dr. Castellani were K.B.’s. Appellant's Brief at 14. He further asserts, without citation, that testimony “regarding the marking, labeling, packaging and/or shipping is necessary” to establish a chain of custody. Appellant's Reply Brief at 6. The State maintains Bengert presents no evidence, nor does he suggest, that K.B.’s brain, dura mater, eyeballs, and spinal cord were tampered with between their extraction by Dr. Kiefer and their reception and examination by Dr. Castellani.

[14] We observe that fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. This exception is available only in “egregious circumstances.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied. “Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied.

[15] In Troxell v. State, the Indiana Supreme Court found no error in the admission of evidence challenged by a criminal defendant claiming error in the chain of custody of a DNA sample and provided:

The State bears a higher burden to establish the chain of custody of “fungible” evidence, such as blood and hair samples, whose appearance is indistinguishable to the naked eye. Culver v. State, 727 N.E.2d 1062, 1068 (Ind. 2000); see also Bivins v. State, 433 N.E.2d 387, 389 (Ind. 1982) (acknowledging that hair is characterized as fungible evidence). To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition. Cliver v. State, 666 N.E.2d 59, 63 (Ind. 1996). However, the State need not establish a perfect chain of custody, and once the State “strongly suggests” the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not to admissibility. Wrinkles v. State, 690 N.E.2d 1156, 1160 (Ind. 1997); Jenkins v. State, 627 N.E.2d 789, 793 (Ind. 1993) (noting that failure of FBI technician to testify did not create error). Moreover, there is a presumption of regularity in the handling of evidence by officers, and there is a presumption that officers exercise due care in handling their duties. Wrinkles, 690 N.E.2d at 1160; Culver, 727 N.E.2d at 1067. To mount a successful challenge to the chain of custody, one must present evidence that does more than raise a mere possibility that the evidence may have been tampered with. Cliver, 666 N.E.2d at 63.

778 N.E.2d 811, 814 (Ind. 2002). The Court also found that the absence of specific dates and times documenting the movement of samples “goes to the weight of the evidence and not its admissibility.” Id. at 815 (citing Jenkins, 627 N.E.2d at 793).

[16] The State presented photographs of K.B. and a recording of Bengert's statement to police. Furthermore, the jury considered the testimony of Coroner Lockyear and Dr. Castellani, which established that the deputy coroner brought K.B.’s body from the scene to the morgue where his injuries were photographed, x-rays were taken, and an external examination was conducted. Dr. Kiefer performed K.B.’s autopsy that day in Coroner Lockyear's presence and then contacted Dr. Castellani. Dr. Kiefer's office sent to Dr. Castellani for interpretation sections of K.B.’s brain, dura mater, his eyes and spinal cord, and thirty-one autopsy photographs. Dr. Castellani testified that he had a conversation with Dr. Kiefer and his neuropathology report lists K.B.’s full name as the patient, indicates “Autopsy Brain, Dura Mater, Right Eye, Left Eye, and Spinal Cord, Referred Tissue From Christopher Kiefer, M.D.,” and states: “One paraffin block is labeled ‘VA-20-O4Y’ and ‘VA-20-04Z.’ Per Dr. Kiefer's office, VA-20-04Y is right eye, and VA-20-04Z is left eye.” Exhibits Volume at 39. Under these circumstances, we cannot say Bengert has established fundamental error. See Troxell, 778 N.E.2d at 814-815 (noting that a successful challenge to the chain of custody requires evidence that does more than raise a mere possibility that the evidence may have been tampered with, and the absence of specific dates and times documenting the movement of samples goes to weight and not admissibility of the evidence).

II.

[17] The next issue is whether the trial court abused its discretion when it allowed Dr. Castellani's testimony about the cause of K.B.’s injuries. Bengert asserts that, given Dr. Castellani's position, credentials, and subject of his testimony, he be treated as an expert witness and argues that, instead of “satisfying itself that the expert testimony rest[ed] on reliable scientific principles,” the court “passed the burden to the witness to determine his own qualifications.” Appellant's Brief at 17. He further contends that he was left unable to challenge the reliability of the doctor's opinion based on standards, research, and principles.

[18] The State argues that Bengert's appellate challenge is not based on his trial objection – that Dr. Castellani did not perform the autopsy – and that the issue is thus waived. It further argues that, given Bengert's admission of Dr. Castellani as an expert witness, he “was thus qualified to examine photographs of the exterior of K.B.’s body and testify to the various injuries he observed.” Appellee's Brief at 16. It contends that the court's statement, rather than permitting Dr. Castellani to determine his own qualifications as a witness, indicated that he should only testify to matters within his expertise, and it points out that he declined afterward to provide opinions beyond his expertise when asked about the injuries on the back of K.B.’s head and chest.

[19] We generally review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh'g denied. We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh'g denied. We may affirm a trial court's decision if it is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh'g denied, trans. denied.

[20] Ind. Evidence Rule 702 provides:

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

In addition, Ind. Evidence Rule 703 provides, “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.”

[21] Bengert's counsel did not mention Ind. Evidence Rule 702 or otherwise object to Dr. Castellani's qualifications at trial; rather, his counsel objected that Dr. Castellani sat “in the place of” the forensic pathologist that conducted the autopsy, who counsel argued was the “most appropriate proper witness” to testify as to the cause of the injuries depicted in the exhibits. Transcript Volume II at 166.

[22] Waiver notwithstanding, we note that Bengert again does not contest that Dr. Castellani, a licensed neuropathologist and anatomic pathologist, was qualified to testify about the nature of the specific injuries he was shown. Rather, he argues that Dr. Castellani was not qualified to testify about the cause of the injuries because the court did not meet Ind. Evidence Rule 702(b)’s “reliable scientific principles” standard, but rather a standard impossible for the defense to review: “what the doctor feels about his own qualifications.” Appellant's Brief at 17.

[23] The record reveals that Dr. Castellani discussed his employment, educational background and training, and licensure to practice, and described that in the autopsy setting the neuropathologist diagnosed traumatic brain injuries, or interpreted entire brains or anything that might happen to a brain and assigned a diagnosis to the pattern of changes. He further testified about the various materials provided by Dr. Kiefer for his interpretation. After Dr. Castellani answered defense counsel's preliminary question on the photograph exhibits and characterized certain external injuries which appeared in a pair of the photographs, the court overruled Bengert's objection that Dr. Castellani was not the most appropriate witness to testify, and he ultimately offered an opinion as to the cause of the injuries based on information he had received. While the trial court referenced the word “qualified” in overruling the objection and generally admonishing the witness, id., we do not find that it abused its discretion in allowing opinion testimony based on facts or data that Dr. Castellani had been made aware. See Ind. Evidence Rule 703. We further note Bengert cross-examined Dr. Castellani, and he expressly referenced one of the two photograph exhibits and challenged the reliability of Dr. Castellani's opinion on K.B.’s subdural hematoma.

[24] Moreover, errors in the admission of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party. McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996); Ind. Trial Rule 61. In determining whether error in the introduction of evidence affected the defendant's substantial rights, this Court must assess the probable impact of the evidence upon the jury. McClain, 675 N.E.2d at 331. The testimony of Dr. Castellani as to the external injuries reflected in the photographic exhibits taken at the scene and at the morgue was cumulative to Investigator Gentry's testimony, and the jury heard Coroner Lockyear indicate he found the cause of death to be abusive head trauma and the manner of death to be homicide. We conclude that any error in the admission of Dr. Castellani's testimony was harmless.

[25] For the foregoing reasons, we affirm the trial court.

[26] Affirmed.

FOOTNOTES

1.   Dr. Castellani testified that Dr. Kiefer sent him “90 plus percent of the brain.” Transcript Volume II at 170.

2.   Marksberry was also charged with neglect of a dependent resulting in death as a level 1 felony.

Brown, Judge.

Bradford, C.J., and Vaidik, J., concur.