Brady v. State, 71A03-8809-CR-266

• Citation: 540 N.E.2d 59
• Decision Date: 21 June 1989
• Docket Number: No. 71A03-8809-CR-266,71A03-8809-CR-266
• Parties: Michael BRADY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 59

540 N.E.2d 59

Michael BRADY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 71A03-8809-CR-266.

Court of Appeals of Indiana,

Third District.

June 21, 1989.

Anthony V. Luber, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Michael Brady was convicted by a jury in the St. Joseph Superior Court of Child Molesting, a class C felony. ¹ He was sentenced to seven years in prison and fined $1,000.00. ² Brady presents 28 issues for appellate consideration, which we restate as:

I. Whether the statute authorizing and the procedures used to videotape a child witness' testimony violated Brady's right to confront his accusers?

II. Whether the trial court erred in allowing a child witness to use dolls to illustrate her testimony?

III. Whether the trial court erroneously denied Brady's motion for mistrial tendered during opening statements?

IV. Whether the trial court erroneously allowed hearsay statements to be admitted?

V. Whether the trial court erroneously allowed the State to cross-examine Brady on specific bad acts.

VI. Whether the trial court abused its discretion by allowing opinion evidence on the subject of injuries to the victim?

VII. Whether the trial court abused its discretion by allowing Abbie Dallek to testify as an expert on the subject of "child abuse accommodation syndrome"?

VIII. Whether the trial court erroneously restricted cross-examination of a State witness for bias?

IX. Whether the trial court erred by refusing to instruct the jury on the proper use of circumstantial evidence?

X. Whether the evidence is sufficient to support Brady's conviction?

XI. Whether the sentence imposed by the trial court was manifestly unreasonable?

Affirmed.

The marriage of Carla Myers and Michael Brady was dissolved in 1983. Carla received custody of their daughter, T.B. (b. June 22, 1982), subject to Brady's visitation rights. Carla married Mark Myers after her divorce from Brady, thereafter living with Myers, T.B., and her son from a previous unrelated marriage.

The evidence most favorable to the verdict discloses that on Friday night, April 4, 1986, Brady collected T.B. who was now three years of age for her first weekend visit pursuant to a revised visitation order. The next afternoon, Carla picked up T.B. for a short time in order that she might attend a family party. T.B. was bathed and returned to Brady after 7:00 p.m. the same evening. Carla noted nothing unusual about T.B. prior to taking her back to Brady that evening. As per the visitation order, Brady returned T.B. to Carla at approximately 6:00 p.m. on Sunday, April 6.

On the following morning, April 7, 1986, Mark Myers, Carla's present husband, received a telephone call from a teacher at T.B.'s school informing him that T.B. had been found hiding in the closet of the school's bathroom, crying that her "gina" hurt and refusing to allow the teacher to examine her. Myers immediately picked T.B. up from school and took her home. Carla's mother took T.B. to the bathroom where she observed a dry discharge on T.B.'s underwear and blood in the toilet. She informed Myers who immediately took T.B. to meet her mother at the office of Dr. Harriet Hanley, T.B.'s physician.

Dr. Hanley's attempts to examine T.B. were futile at first; T.B. had become hysterical and insistent that no one touch her. Following the administration of two sedatives, however, T.B.'s resistance lapsed. Upon examination, Dr. Hanley observed a great amount of trauma to T.B.'s genital area: a large hematoma on the right labia majora; a laceration along the line between the labia majora and labia minora; and a laceration extending downward toward the anus which Dr. Hanley opined continued to the inside of the vagina. T.B.'s physical and emotional state at the time rendered an internal examination impossible.

Detective Sergeant Elaine Battles, of the St. Joseph County Police Department, was contacted by a Welfare Department child protective team case worker and informed of suspected sexual abuse regarding T.B. Battles conducted an interview with T.B. at the Myers' home on April 10, 1986, during which T.B. told her that her father had hurt her. T.B. demonstrated how her father had hurt her using "anatomically correct" dolls provided by Battles, placing one foot of the male doll between the legs of the female doll. T.B. also related that her father had put hot water and soap on one hand and rubbed it up and down between her legs. In a subsequent interview, Battles placed nude, "anatomically correct" male and female drawings before T.B. Battles then asked T.B. to show where Brady had hurt her, whereupon T.B. colored the genitalia of the female drawing. When asked to show or draw how Brady had hurt her, T.B. colored a hand on the male drawing.

During an interview in October of 1986, T.B. again demonstrated with "anatomically correct" dolls how "Daddy Mike" (Brady) had hurt her. After taking the clothes off the dolls, T.B. arranged them in the male foot to female genitalia position previously demonstrated to Battles. When asked how else "Daddy Mike" had hurt her, T.B. placed the male doll on top of the female doll in a position of intercourse. T.B. was asked whether she had felt any pain, to which she responded affirmatively.

I. Videotaped Testimony

In the months preceding Brady's final trial date of May 26, 1987, several hearings were held in response to the State's petition to videotape T.B.'s testimony pursuant to West's AIC 35-37-4-8. Ultimately, the State's petition was granted and T.B.'s videotaped testimony admitted into evidence at trial over Brady's motion in limine and objections seeking its exclusion. Brady contends on appeal that the trial court erred in overruling his objection to the State's motion to videotape on the grounds that IC 35-37-4-8 is unconstitutional as a violation of his right to confront his accusers face-to-face. Brady also contends that the procedures used to videotape his testimony violated his right to confrontation and that the quality of the videotape was so poor as to render it inadmissible.

IC 35-37-4-8 sets forth conditions which must be met before allowing a child's testimony to be videotaped and guidelines which must be followed during the videotaping session. In pertinent part, IC 35-37-4-8 provides:

(a) This section applies to criminal actions for felonies under IC 35-42 and for neglect of a dependent (IC 35-46-1-4) and for attempts of those felonies (IC 35-41-5-1).

* * * * * *

(c) On the motion of the prosecuting attorney, the court may order that the testimony of a child be videotaped for use at trial.

(d) The court may not make an order under subsection (b) or (c) unless:

(1) The testimony to be taken is the testimony of a child who:

(A) is less than ten (10) years of age;

(B) is the alleged victim of an offense listed in subsection (a) for which the defendant is being tried or is a witness in a trial for an offense listed in subsection (a);

(C) is found by the court to be a child who should be permitted to testify outside the courtroom because:

(i) a psychiatrist has certified that the child's testifying in the courtroom would be a traumatic experience for the child;

(ii) a physician has certified that the child cannot be present in the courtroom for medical reasons; or (iii) evidence has been introduced concerning the effect of the child's testifying in the courtroom, and the court finds that it is more likely than not that the child's testifying in the courtroom would be a traumatic experience for the child;

(2) the prosecuting attorney has informed the defendant and the defendant's attorney of the intention to have the child testify outside the courtroom; and

(3) the prosecuting attorney informed the defendant and the defendant's attorney under subdivision (2) within a time that will give the defendant a fair opportunity to prepare a response before the trial to the prosecuting attorney's motion to permit the child to testify outside the courtroom.

* * * * * *

(f) If the court makes an order under subsection (c), only the following persons may be in the same room as the child during the child's videotaped testimony:

* * * * * *

(3) The defendant's attorney (or the defendant, if the defendant is not represented by an attorney).

* * * * * *

(7) The defendant, who can observe and hear the testimony of the child without the child being able to observe or hear the defendant. However, if the defendant is not represented by an attorney, the defendant may question the child.

(g) If the court makes an order under subsection (b) or (c), only the following persons may question the child:

(1) The prosecuting attorney.

(2) The defendant's attorney (or the defendant, if the defendant is not represented by an attorney).

(3) The judge.

A statute is presumed constitutional until the party challenging it as unconstitutional makes a clear showing to the contrary. Hopper v. State (1986), Ind.App., 489 N.E.2d 1209, 1212, trans. denied. When two interpretations of a statute are possible, the courts must adopt the interpretation which upholds the statute. Eddy v. McGinnis (1988), Ind., 523 N.E.2d 737, 738. We conclude that Brady's argument that IC 35-37-4-8 is facially invalid is without merit.

Our supreme court recently examined the constitutionality of West's AIC 35-37-4-6, a statute which allows child hearsay statements to be admitted into evidence upon meeting criteria very similar to those of IC 35-37-4-8(d), and determined that, provided a defendant has the opportunity to cross-examine the child witness at some point, his right to confront his accusers has not been violated. See, Miller v. State (1987), Ind., 517 N.E.2d 64. The Miller court stated that, although the Indiana Constitution specifically imbues criminal defendants with the right to face-to-face confrontations of their accusers,...