New Harmony Gazette August-2018

Marilyn Odendahl for www.theindianalawyer.com

An Indianapolis man’s conviction for causing the death of his infant daughter will stand after the Indiana Court of Appeals rejected his argument that the evidence of him placing a pillow over the baby should not have been admitted at trial because he never affirmatively said her death was an accident.

Jeffrey Fairbanks was charged with murder and Level 1 felony neglect of a dependent resulting the death of his infant daughter, Janna. He told Indianapolis police he had placed a pillow over Janna’s face because she was crying but he then quickly removed the pillow and fed her. A short time later, he said, he and the baby fell asleep but when he awoke, she was dead.

The state filed notice of intent to admit 404(b) evidence that Fairbanks had placed a pillow over Janna’s face on at least two prior occasions. Also the state wanted to admit statements from Janna’s mother two other daughters, A.G. and E.M., about seeing Fairbanks place a pillow over the baby in the past and hearing “muffled cries.”

However, Fairbanks filed a motion in limine seeking to prohibit the introduction of the evidence, claiming it violated Indiana Evidence Rules 404(b) and 403.

The Marion Superior Court denied Fairbanks’ motion.

In its closing argument, the state told the jury Fairbanks “smothered Janna with a pillow. He caused her to suffocate and die.”

The jury found Fairbanks not guilty of murder but guilty of Level I felony neglect. He was sentenced to 30 years in prison.

Fairbanks appealed, arguing in part the evidence that he had previously placed a pillow over Janna’s face was inadmissible pursuant to Evidence Rule 404(b). In particular, he noted the evidence of a crime, wrong, or other act is admissible to prove lack of accident only if the defendant first claims accident. He maintained he never said Janna’s death was an accident.

The state countered a defendant does not need to affirmatively advance a contrary claim of accident prior to the State’s introduction of prior bad act evidence.

The Court of Appeals agreed that Indiana law is not clear as to whether a defendant must affirmatively claim mistake or accident. But in its own survey of cases where evidence had been admitted under Evidence Rule 404(b), the appellate panel discovered the defendant affirmatively claimed the act was a mistake or accident.

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“We thus find that accident and mistake are a subset of intent, in that a defendant who claims mistake or accident is necessarily claiming that the act was not intentional,” Chief Judge Nancy Vaidik wrote for the court. “Accordingly, we conclude that, similar to intent, defendants must affirmatively claim mistake or accident before the State can admit evidence pursuant to Evidence Rules 404(b) that the act was not a mistake or accident.”

As to whether Fairbanks affirmatively claimed accident, the Court of Appeals found that he got very close. Several times in his statements to police and interviews to local television stations he said he didn’t know what happened to Janna and that he didn’t do anything wrong. Also, under cross-examination by the defense, Janna’s pediatrician testified that co-sleeping was dangerous because the baby could accidentally get smothered.

“While this is not overwhelming evidence that Fairbanks affirmatively claimed accident, it is sufficient,” Vaidik wrote. “If there was any doubt whether Fairbanks claimed accident during trial, that doubt was extinguished when defense counsel argued during closing that what happened to Janna was, in fact, an ‘accident.’”

In his concurring opinion, Judge Rudolph Pyle took issue with the majority’s ruling that Fairbanks had preserved his request for a continuing objection to the pillow evidence.

Pointing to the record, Pyle asserted the trial court never ruled on the defense’s motion. Instead the trial judge responded “okay” to the defense and then asked for the state’s response.

“I do not believe the trial court’s utterance of the word, ‘Okay’ was in any way related to a ruling on the motion,” Pyle wrote. “The trial court was simply acknowledging the request had been made, it sought a response from the State, and was interrupted by the entry of the jury into the courtroom before it could make a ruling. As a result, the issue was neither ruled upon nor preserved for appeal.”

The case is Jeffrey Fairbanks v. State of Indiana, 49A02-1707-CR-1675.