Beck v. State, 48A02-8811-JV-00447
| Decision Date | 04 October 1989 |
| Docket Number | No. 48A02-8811-JV-00447,48A02-8811-JV-00447 |
| Citation | 544 N.E.2d 204 |
| Parties | In the Matter of Mark A. BECK, Child Alleged to be Delinquent, Appellant (Respondent Below), v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
James D. Gillespie, Anderson, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Mark Beck (respondent) was charged with touching T.P., a three year-old child, with a sponge 1 and with his penis on her vaginal area with the intent to arouse or satisfy his sexual desire. The respondent was adjudged to be a delinquent child on August 4, 1987, and was ordered to the Indiana Boys School. Respondent appeals this determination.
We reverse.
There are essentially two issues presented for review:
(1) Whether the defendant's sixth amendment right to cross-examination was violated, and (2) Whether there was sufficient corroborative evidence to render the videotaped statement admissible under I.C. 35-37-4-6.
Respondent was 16 years of age when he was charged with the above offense, which allegedly occurred on March 9, 1987. T.P.'s mother, Elizabeth Cooley, had taken T.P. and T.P.'s younger sister over to Evelyn Edwards' house, with whom respondent was then living, to be babysat while Cooley attended school. Cooley testified that Beck was asleep on the couch when she arrived. After telling Edwards that she was dropping the kids off, Cooley left for school. Although unclear, the facts most favorable to the judgment would permit an inference that respondent was left alone with the two girls, as well as Edwards' own two children, for an undisclosed period of time while Edwards was absent from the house.
According to Cooley, T.P. was crying when she later picked her up and complained of hunger and of pain in her vaginal area. After asking T.P. what was wrong, Cooley visually examined the child, then called her neighbor over to also examine T.P. Apparently the only thing unusual which they discovered was a white substance, later identified at the hospital as a piece of sponge. Although the record is unclear as to the exact time frame of these events, apparently several hours had passed before the neighbor, Carla Rogers, was called. T.P. was subsequently taken to the hospital that evening for an examination.
A videotaped statement of T.P. was taken by Detective Conce on the third day following the alleged incident pursuant to I.C. 35-37-4-6 (Burns Code Ed.Supp.1988). This statute allows out-of-court statements by children to be admitted provided certain criteria are met. This statute reads in part as follows:
"Admissibility of statement or videotape of a child of ten or under in certain criminal actions. 2 --(a) This section applies to criminal actions for the following:
(1) Child molesting (IC 35-42-4-3).
* * * * * *
(b) A statement or videotape that:
(1) Is made by a child who was under ten (10) years of age at the time of the statement or videotape;
(2) Concerns an act that is a material element of an offense listed in subsection (a) that was allegedly committed against the child; and
(3) Is not otherwise admissible in evidence under statute or court rule; is admissible in evidence in a criminal action for an offense listed in subsection (a) if the requirements of subsection (c) are met.
(c) A statement or videotape described in subsection (b) is admissible in evidence in a criminal action listed in subsection (a) if, after notice to the defendant of a hearing and of his right to be present:
(1) The court finds, in a hearing:
(A) Conducted outside the presence of the jury; and
(B) Attended by the child;
that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability; and
(2) The child:
(A) Testifies at the trial; or (B) Is found by the court to be unavailable as a witness because:
(i) A psychiatrist has certified that the child's participation in the trial would be a traumatic experience for the child;
(ii) A physician has certified that the child cannot participate in the trial for medical reasons; or
(iii) The court has determined that the child is incapable of understanding the nature and obligation of an oath.
(d) If a child is unavailable to testify at the trial for a reason listed in subsection (c)(2)(B), a statement or videotape may be admitted in evidence under this section only if there is corroborative evidence of the act that was allegedly committed against the child."
This tape included a demonstration by T.P. with anatomically correct dolls.
On May 15, 1987, a hearing was held to consider whether the tape contained sufficient indicia of reliability to be introduced as evidence and also to consider whether T.P. was available to testify; i.e., to determine whether or not she understood the nature and obligation of the oath. Respondent was seated at the back of the courtroom; T.P. apparently had her back to the respondent. After inquiry by the judge and both attorneys, the court determined that T.P. was in fact not available to testify. The child was then allowed to leave without objection, while the hearing as to the statement's reliability continued. Detective Conce testified at this hearing as to his background with respect to child abuse cases and the technique he employed in taping the statement.
At the subsequent fact-finding hearing held on July 2 for the purposes of presenting substantive evidence and determining whether corroborative evidence as required by I.C. 35-37-4-6(d) existed, the doctor who conducted the medical examination testified that he had found no physical evidence to corroborate the charge. The doctor testified that the exam was normal, except for a small foam rubber particle which he found but he declined to speculate as to the source of the particle's presence. The doctor himself found the particle not unusual as children "often put things down there." Record at 164. The doctor was permitted to testify, over objection, to the child's explanation of what had happened. A copy of the medical exam containing the child's narrative was also introduced under the medical records exception over defendant's objection. The doctor stated that the findings of no trauma or scratches to the vaginal area were not inconsistent with the history given him by the child, because the type of contact described by T.P. would not leave any external signs.
The tape was admitted into evidence over defendant's sixth amendment objection.
Respondent contends on appeal that he was denied his sixth amendment right 3 to confront and cross-examine the child. The state contends that respondent waived this right because he never asserted it. This issue must be decided in the context of two recent Indiana Supreme Court decisions, Miller v. State (1987) Ind., 517 N.E.2d 64 (Miller I ) and Miller v. State (1988) Ind., 531 N.E.2d 466 (Miller II ).
In Miller I, the defendant was accused of molesting her grandchild over a period of several years (apparently beginning when the child was 5; she was 9 at the time of trial). The defendant and her counsel were not notified of nor present at the videotaping of the child's statement. An initial hearing was held in which the child's competency and availability as a witness and the admissibility of the videotaped statement
were determined. The trial court determined that the child was unavailable to testify at trial. Our Supreme Court rejected the state's claim that the defendant had waived the opportunity to cross-examine the victim at the hearing and that her failure to call the child as a witness amounted to a waiver of her right to confrontation. The court pointed out that the trial judge had indicated he would not allow the attorneys to question the victim when she took the stand for purposes of determining her competency or to submit questions for the court to pose, presumably because the judge was going to question the child himself. Our Supreme Court determined that the judge's responses to the attorneys were sufficiently broad as to be interpreted as a general ban on questioning by counsel, stating that
Miller I, supra, 517 N.E.2d at 73. Our Supreme Court agreed with the First District 4 that the purpose of the pre-trial hearing is to give the defendant the right, under circumstances less traumatic to the child than a trial, to inquire into the statement or ask the child questions about it. The court stated that "[t]he goal of the statute is to reduce the child's emotional trauma caused by numerous court appearances, not to guarantee that the child will never have to face the defendant." Id.
After examining the evidence to determine whether the confrontation clause violation constituted harmless error, the court concluded it did not. The court stated that the child's testimony on the videotape was straightforward and convincing, and thus constituted particularly damaging evidence because no other direct evidence linked the defendant to the molestations. The judgment was therefore reversed and the case was remanded for a new trial.
In Miller II, supra, 531 N.E.2d 466, our Supreme Court reaffirmed that the hearing held to determine whether the out-of-court statements contain sufficient indicia of reliability to be admissible is intended to be adversarial and to provide the defendant with the opportunity for full cross-examination. The court found that the right to fully confront and cross-examine the witness was one of three 5 core statutory...
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