McVey v. State

• Decision Date: 30 March 2007
• Docket Number: No. 73A04-0610-CR-561.,73A04-0610-CR-561.
• Citation: 863 N.E.2d 434
• Parties: Richard J. McVEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

863 N.E.2d 434

Richard J. McVEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 73A04-0610-CR-561.

Court of Appeals of Indiana.

March 30, 2007.

Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Scott L. Barnhart, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Richard J. McVey (McVey), appeals his conviction for Count I, child molesting, a Class B felony, Ind. Code § 35-42-4-3(a); Count II, child molesting, a Class A felony, I.C. § 35-42-4-3(a)(1); Count III-IV, child molesting, Class C felonies, I.C. § 35-42-4-3(b); and Count V, incest, a Class B felony, I.C. § 35-46-1-3.

We affirm in part, reverse in part, and remand with instructions.

ISSUES

McVey raises four issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by admitting McVey's statements made during a polygraph examination when the parties had agreed the polygraph would be non-stipulated;

(2) Whether the trial court abused its discretion by excluding evidence of the victim's prior sexual history under Indiana Evidence Rule 412;

(3) Whether the trial court properly denied McVey's Motion for a New Trial based on the victim's recantation after trial; and

(4) Whether several of the special probation conditions for adult sex offenders imposed upon McVey were unconstitutionally vague or otherwise improper as they do not bear a reasonable relationship to McVey's rehabilitation.

FACTS AND PROCEDURAL HISTORY

J.H., born on October 4, 1990, is the daughter of Mary Herrera and Richard Max McVey (Max). J.H. lived with her mother but would visit with her father every other weekend in Waldron, Indiana. McVey, Max's son and J.H.'s half-brother, was raised by his grandparents and lived in their large home, where Max and his wife also resided.

In 1998, when J.H. was eight years old and McVey was twenty years old, McVey started touching J.H.'s vagina over her clothes with his hand while the two were in McVey's bedroom, laying on the waterbed. After about a year, McVey began touching J.H.'s vagina under her clothes, using his hand, his penis, and sometimes his fingers. J.H. would not say anything because she was scared, thinking it was all her fault. When J.H. was about nine or ten years old, McVey started having intercourse with her, ejaculating "inside [her] private part ... about every other time." (Transcript p. 122). J.H. would tell him to stop, but he never complied.

On August 30, 2001, J.H. became upset at school while her teacher was reading a book that involved child molestation between a father and a daughter. Distraught, she went to the back of the classroom crying. J.H. confided to the school counselor that her brother had touched her inappropriately over her clothes. The counselor notified Child Protection Services. Detective Rick Isgrigg (Detective Isgrigg) of the Shelby County Sheriff's Department started investigating the allegation. During the ensuing investigation, which spanned several months, the details of the purported molestations evolved.

While investigating J.H.'s claims, Detective Isgrigg spoke with McVey's counsel about his client's willingness to submit to a polygraph. On April 10, 2002, defense counsel wrote to Detective Isgrigg that McVey would be willing to participate in a non-stipulated polygraph and requested the proposed agreement to be sent to him. Two days later, Detective Isgrigg proposed a date and time for the non-stipulated polygraph. However, no agreement was ever executed; rather, the State advised defense counsel that they could execute a form if McVey wanted the polygraph to be stipulated, i.e., with results to be admissible in court, but there was no form to be completed for a non-stipulated polygraph.

On May 28, 2002, McVey appeared at the Indiana State Police Post in Indianapolis to take the non-stipulated polygraph. He was not accompanied by his counsel. The polygraph examiner, unaware of the non-stipulated nature of the exam, had McVey sign a "Polygraph Waiver" form, which included the provision, "[a]nything you say can be used against you in court." (Defendant's Exh. B). Near the end of the polygraph exam, McVey divulged that twelve to fourteen months ago, J.H. had crawled in his bed and he awoke to her stroking his penis. This continued for a minute or a minute and a half until he ejaculated.

On June 17, 2002, the State filed an Information charging McVey with Count I, child molesting, a Class B felony, Ind.Code § 35-42-4-3(a); Count II, child molesting, a Class A felony, I.C. § 35-42-4-3(a)(1); Count III-IV, child molesting, Class C felonies, I.C. § 35-42-4-3(b); and Count V, incest, a Class B felony, I.C. § 35-46-1-3. On February 18, 2003, McVey filed his Motion to Suppress Statements made during his non-stipulated polygraph, which was subsequently denied by the trial court after a pretrial hearing and again at trial. On September 30, 2003 through October 2, 2003, a jury trial was held. At the close of the evidence, the jury found McVey guilty as charged. On December 16, 2003, during a sentencing hearing, the trial court sentenced McVey to six years executed and four years suspended on Count I, thirty years with twenty years executed and ten years suspended on Count II, and four years executed with two years suspended on Count III. The trial court merged Count IV with Count III and Count V merged with Count I. All sentences were to be served concurrently. Additionally, as part of the sentence, the trial court imposed twenty separate "special probation conditions for adult sex offenders." (Appellant's App. p. 230).

On January 14, 2004, McVey filed his notice of appeal. On May 18, 2004, we denied McVey's request to stay the appeal allowing him to pursue a Motion for New Trial based on newly discovered evidence in the trial court. Instead we dismissed the appeal without prejudice and remanded to the trial court for a ruling on McVey's Motion for a New Trial. On May 10, 2004, McVey filed his motion with the trial court. On July 19, and November 3, 2005, the trial court conducted a bifurcated hearing on the Motion for a New Trial and subsequently denied it on January 12, 2006.

McVey now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Non-Stipulated Polygraph

First, McVey contends that the trial court abused its discretion by admitting his statements made during a polygraph examination. Specifically, McVey maintains that because both parties had agreed in advance that the polygraph would be non-stipulated, the agreement amounted to a promise of immunity. As a result of this promise of immunity, McVey claims that he was induced to confess and therefore, his statements should be held to be involuntary and inadmissible.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Payne v. State, 854 N.E.2d 7, 13 (Ind.Ct.App.2006), trans. denied. An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. However, if a trial court abused its discretion by admitting the challenged evidence, we will only reverse for that error, if "the error is inconsistent with substantial justice" or if "a substantial right of the party is affected." Id. (quoting Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)). Any error caused by the admission of evidence is harmless error for which we will not reverse a conviction if the erroneously admitted evidence was cumulative of other evidence appropriately admitted. Id.

A polygraph examination is typically conducted in three separate phases. During the pre-test interview, information is gathered from the individual taking the polygraph examination ensuring that the person is a suitable candidate and an explanation is given about the polygraph procedure. Next, the questions are formulated and presented to the individual before the actual polygraph is conducted. At the actual polygraph phase of the examination, the person is attached to the polygraph instrument and the questions that have been previously agreed upon are asked. The instrument then records the individual's physiological responses to the questions. Finally, during the third phase, the post-polygraph interview, the individual is disconnected from the polygraph instrument and questions that might have arisen during the polygraph phase are asked.

McVey is now challenging an admission apparently made during the post-polygraph phase of the examination. Specifically, the record discloses that McVey told the examiner that twelve to fourteen months ago, J.H. had crawled in his bed and he awoke to her stroking his penis. He explained that this continued for a minute or a minute and a half until he ejaculated. At the advice of the examiner, McVey then wrote a letter of apology to J.H., asking that she forgive him for "what happened." (Tr. p. 225). Attempting to convince this court that this admission is inadmissible evidence, McVey maintains that the State's agreement to a non-stipulated polygraph amounted to a promise of immunity. McVey asserts that because he relied on the promise, which he understood to mean that "anything participated in [ ] could not be used against [him]," he was coerced into making the incriminating admission.¹

The courts of this state have repeatedly expressed severe reservations about the reliability of polygraph results. See e.g., Willey v. State, 712 N.E.2d 434, 441 (Ind.1999); Madison v. State, 534 N.E.2d 702, 704 (Ind.1989) ("the value of polygraph examinations is highly questionable ..."); Reid v. State, 267 Ind. 555, 372 N.E.2d 1149, 1152 (1978) ("in any given case, unreliable results may be produced in a polygraph test by influences that cannot be controlled or compensated for by a competent examiner"). Because of its questionable...