August 2009 Posts

Doctrine of completeness – applies to self-serving statements; harmless error

Farmer v. State, 29A05-0810-CR-609

5th Dist., 07-09-09, Ind.App. 908 N.E.2d 1192

Attorney: Steven Stoesz

Holding: Trial court committed harmless error by refusing to allow Defendant to cross-examine a police officer on his self-serving statements made during his interview. The common law doctrine of completeness applies not only to writings but also oral conversations. Therefore, it will always be proper to cross-examine and to impeach an officer testifying about a conversation with a defendant. The doctrine of completeness applies even to self-serving hearsay statements. However, failure to allow a defendant to cross-examine a police officer on the self-serving portions of his statement may constitute harmless error. When a defendant is testifying in person, he is free to tell his version of the entire matter as he sees fit. McElroy v. State, 553 N.E.2d 835, 839-40 (Ind. 1990).

Here, State put into evidence Defendant’s admission to police that he was in the victim’s home where he and the victim got into a struggle, that he taped her hands and feet and that he took her bank cards and jewelry. Trial court did not permit Defendant from crossing the officer about his denials made in the same interview that he sexually assaulted the victim and used a weapon. But, Defendant testified at length explaining his statement to the police. He also testified that the victim’s husband had asked him to stage a burglary at his house. Also, there was substantial evidence of Defendant’s guilt. Thus, even though under the doctrine of completeness Defendant should have been permitted to cross on his self-serving statements, Defendant has not shown reversible error. Held, judgment affirmed.

Tuesday, August 18th, 2009 | Posted in Indiana Court of Appeals | No Comments »

Expert testimony – witnesses should not be referred to as “experts”

Farmer v. State, 29A05-0810-CR-609

5th Dist., 07-09-09, Ind.App. 908 N.E.2d 1192

Attorney: Steven Stoesz

Holding: Trial court abused its discretion in allowing State to refer to its witnesses as experts, but error was harmless. Neither counsel nor trial court should refer to witnesses as “experts” in the presence of the jury. Campbell v. Shelton, 727 N.E.2d 495, 500 (Ind.Ct.App. 2000). Here, the prosecutor tendered his witness as expert in the presence of the jury. Although trial court and State should not have referred to the witnesses as experts, the jury was instructed that they should judge the testimony of the expert witness in the same manner as you judge the testimony of any other witness and that they were the exclusive judges of the evidence, which may be either witness testimony or exhibits. Thus, this error did not rise to the level of reversible error. Moreover, any error resulting from the State calling a lab analyst who testified as to another analyst’s review of and opinion that fibers on duct tape found in Defendant’s possession were similar to the fibers of the victim’s sweater was harmless. Although the fiber evidence linked Defendant to the crimes, it paled in comparison to the other evidence of Defendant’s guilt, which included the victim’s identification of Defendant, Defendant’s confession to his friend and Defendant’s statements to the police. Also, police found the victim’s stolen items in Defendant’s vehicle and home. Held, judgment affirmed.

Tuesday, August 18th, 2009 | Posted in Indiana Court of Appeals | No Comments »

Theft – victim can be deceased

Patterson v. State, 71A05-0903-CR-154

5th Dist., 07-22-09, Ind.App.

Attorney: Mark Lenyo

Holding: There was sufficient evidence to support Defendant’s theft convictions even though the victim was dead when Defendant stole from him. A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft. I.C. 35-43-4-2(a). “Person” means a human being, corporation, limited liability company, partnership, unincorporated association, or governmental entity. I.C. 35-41-1-22(a). The spirit of our criminal law would not be fostered by a ruling that a defendant could not be convicted of robbing a man he had just killed. Robinson v. State, 693 N.E.2d 548, 554 (Ind. 1998). With that reasoning in mind, Court held that although a victim is dead, he is still a human being capable of being stolen from. Here, Defendant shot and killed victim, and then stole certain items, money and a car from victim. Thus, Defendant was properly convicted of theft. Held, judgment affirmed.

Tuesday, August 18th, 2009 | Posted in Indiana Court of Appeals | No Comments »

Rape – insufficient evidence of penetration

Atteberry v. State, 49A02-0808-CR-705

2nd Dist., 07-07-09, Ind.App.

Attorney: Michael R. Fisher

Holding:

Evidence of trauma to victim’s anus, plus presence of semen stains in her underwear, are insufficient to prove essential element of penetration of victim’s sex organ with Defendant’s sex organ, which is necessary to support a rape conviction. Tracking language of I.C. 35-42-4-1(a), State alleged that Defendant “did, while armed with a deadly weapon…knowingly have sexual intercourse with [L.L.]…when [L.L.] was compelled by force or imminent threat of force.” “Sexual intercourse” is defined by I.C. 35-41-1-26 as “an act that includes any penetration of the female sex organ by the male sex organ.” Penetration may be inferred from circumstantial evidence such as the physical condition of the victim soon after the incident. Pasco v. State, 563 N.E.2d 587 (Ind. 1990).

Here, there was evidence of trauma to victim’s anus, but no sign of trauma to her vagina. Instead, semen stains were found on the front, left portion of victim’s underwear. This evidence clearly demonstrates that Defendant sexually assaulted victim anally. But crime of rape does not include such conduct, which is instead defined by statute as criminal deviate conduct, a crime for which Defendant was not charged. Held, rape conviction reversed, murder conviction affirmed.

Tuesday, August 18th, 2009 | Posted in Indiana Court of Appeals | No Comments »

Placement of juvenile on sex offender registry – likelihood of committing future sex offense

B.W. v. State, 15A01-0903-JV-123

1st Dist., 07-14-09, Ind.App. 909 N.E.2d 471

Attorney: Jeffrey E. Stratman

Holding: There was clear and convincing evidence to support juvenile court’s finding that B.W. is likely to repeat an act that would be a sex offense if committed by an adult. Thus, juvenile court did not err in ordering B.W. to register as a sex offender. Sex offender registry hearing needs to include an evaluation of whether a juvenile has been rehabilitated while in detention before juvenile court can find clear and convincing evidence that juvenile is likely to commit another sex offense. J.C.C. v. State, 897 N.E.2d 931 (Ind. 2008). Here, despite B.W.’s completing a two-year treatment program which resulted in some progress, juvenile court determined that he was not sufficiently rehabilitated based on: B.W.’s history of numerous sexual contacts; his moderate to high risk level of reoffending at time of admission to treatment program; his actions while in treatment, including violations of his probation a few months prior to his discharge from treatment; his risk for reoffending on completion of his treatment, which had remained at a moderate level; and fact that his motivation to avoid reoffending was merely a fear of punishment. Juvenile court did not err in referring to B.W.’s pre-treatment assessment as a guidepost for comparison to B.W.’s post-treatment assessment. While expert testified he did not think B.W. should be required to register, he also testified B.W. was at a moderate risk of reoffending. Held, judgment affirmed.

Tuesday, August 18th, 2009 | Posted in Indiana Court of Appeals | No Comments »

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