Abernathy v. State
| Decision Date | 09 June 1988 |
| Docket Number | No. 1185S465,1185S465 |
| Citation | 524 N.E.2d 12 |
| Parties | Richard Lee ABERNATHY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Theodore F. Smith, Jr., Smith & Farrell, Anderson, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Richard Lee Abernathy was tried before a jury and convicted of rape, Ind.Code Sec. 35-42-4-1(a)(1) (Burns 1987 Repl.), criminal deviate conduct, Ind.Code Sec. 35-42-4-2(1) (Burns 1987 Repl.), and two counts of child molesting, Ind.Code Sec. 35-42-4-3(c) (Burns 1987 Repl.). All of the convictions were class A felonies, and the trial court sentenced Abernathy to concurrent terms of thirty-five years on each count.
Although Abernathy asserts several grounds for reversal in this direct appeal, we address a single issue: whether the judge's intervention and comments during the trial deprived appellant of a fair trial.
Abernathy's convictions stemmed from a series of encounters with his step-daughter, S.H., beginning at about age fourteen and lasting until about age twenty. S.H. testified that Abernathy began touching and fondling her when she was fourteen and forced her to submit to sexual intercourse shortly after her fifteenth birthday. Eventually, Abernathy forced her to participate in other acts, including oral sex. S.H. complied with Abernathy's demands because he struck her and threatened to kill her and her family. Though S.H. left her step-father's home on two occasions, she returned because of his threats.
Abernathy admitted engaging in sexual activity with S.H., but asserted it did not begin until she was sixteen. When the sexual relationship developed, Abernathy alleges, S.H. was a voluntary participant and no force or threats were used.
Abernathy alleges that the trial judge abandoned his position of impartiality by intervening with comments and questions throughout the proceedings. The trial court has the duty to remain impartial and refrain from making unnecessary comments or remarks. Cornett v. State (1983), Ind., 450 N.E.2d 498. A fair trial before an impartial judge is an essential element of due process. Kennedy v. State (1972), 258 Ind. 211, 280 N.E.2d 611. The judge may question witnesses if done in a manner that will not improperly influence the jury; this power should be exercised to aid the finder of fact. Thomas v. State (1967), 249 Ind. 271, 230 N.E.2d 303.
Appraising the weight and value of testimony is the jury's province. A trial judge should refrain from imposing his opinions on the jury so that it may fairly assess the evidence and return a verdict accordingly. Brannum v. State (1977), 267 Ind. 51, 366 N.E.2d 1180. It is improper for the judge to ask questions which are calculated to impeach or discredit the witness. As Justice Hunter wrote for this Court, the jurors' customary respect for the judge Kennedy, 258 Ind. at 226, 280 N.E.2d at 620-21.
Abernathy points to comments and questions which allegedly indicated the judge's opinion on the credibility of B.A., a witness favorable to the defense. B.A., appellant's wife and the victim's mother, testified during the State's case in chief. Her testimony was generally unresponsive to the prosecutor's questions. B.A.'s answers tended to be expansive explanations of the events as she saw them. The judge cautioned her about her unresponsive answers.
Occasionally the judge's comments went beyond admonishment. When the State questioned her about an admission her husband made to her, the following exchange took place:
Q. Had your husband not ever admitted to you that he had been doing that?
A. No, rape, sir, no, sir.
JUDGE: Well, what would you call it, Ma'am?
The State pointed out that she had admitted in an earlier statement that Abernathy had confessed to B.A. and the family minister that he had sexual intercourse with S.H. While she was attempting to explain the apparent inconsistency in her testimony, the following colloquy occurred:
A. I'm not denying that I said them but I was in a state of mind, I do not remember saying them and they certainly aren't true. That is what I'm saying.
JUDGE: You're telling the jury that you made a tape recorded statement but the things you said weren't true, is that what you're telling the jury?
A. I was in a condition, I didn't realize what I was saying or doing. ... I don't remember everything.
JUDGE: Ma'am, don't you go to church?
A. I go to church.
JUDGE: You're not in the habit of telling things that aren't true, are you?
A. That's true but I am saying that I was in such a state of mind that I do not know what I said.
JUDGE: All right, go ahead.
Later on cross-examination, defense counsel attempted to rehabilitate the witness regarding her earlier statement that Abernathy was capable of violence:
On redirect, the State returned to B.A.'s earlier statement that Abernathy had confessed to sexual intercourse with the victim:
A: (no answer)
Defense counsel did not object to these instances. Later, outside the presence of the jury, counsel objected to the judge's behavior during B.A.'s testimony, pointing out that the judge had turned his chair so that he sat with his back to the witness and placed his feet on the wall in what defense counsel interpreted as an attitude of...
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