Book v. State

• Decision Date: 25 February 2008
• Docket Number: No. 49A05-0707-CR-385.,49A05-0707-CR-385.
• Citation: Book v. State, 880 N.E.2d 1240 (Ind. App. 2008)
• Parties: Kevin BOOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

880 N.E.2d 1240

Kevin BOOK, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0707-CR-385.

Court of Appeals of Indiana.

February 25, 2008.

Julie Ann Slaughter, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney.General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

In this case, we explore the delicate balance between a trial judge's authority to efficiently control the court proceedings and a defendant's right to confer with counsel before deciding whether and when to testify at trial.Appellant-defendantKevin Book appeals his conviction for Murder,¹ a felony.Specifically, Book argues that the trial court violated his Fifth and Sixth Amendment rights under the United States Constitution when he was allegedly compelled to make a decision whether to testify at a particular time during the trial.In essence, Book claims that the trial court improperly foreclosed his counsel from determining when—or if—he should testify on his own behalf.

Book also claims that the trial court abused its discretion and violated Indiana Evidence Rule 404(b) in permitting a ten-year-old witness to testify against him, that the evidence is insufficient to support the conviction, and that the sixty-year Sentence is inappropriate.We conclude that the trial court did not unfairly impinge on Book's right to counsel or improperly preclude him from testifying.And finding no other error, we affirm the judgment of the trial court.

FACTS²

Sometime during the evening of March 7, 2006, Jennifer Couch and her twenty-month-old daughter, H.C., went to Book's Indianapolis residence to spend the night.Book, who was dating Couch, operated a carpet cleaning business from his house, and Couch was one of Book's employees.

H.C. slept in a bedroom with Book's daughter, who was approximately one month older than H.C.When Couch put H.C. to bed, the mattress, blanket, and sleeper were clean and unstained.Book and Couch then went to bed, and Couch fell asleep while Book watched television.At some point, Book awakened Couch and told her that H.C. was not breathing.When Couch walked into the room, she noticed that H.C. had vomit on the front of her sleeper.Couch called 911 and she and Book performed CPR on H.C. after receiving instructions from the 911 operator.

When the paramedics arrived, Book was standing on the front porch holding H.C., who showed no signs of life.The paramedics attempted to resuscitate her, but when their efforts failed, H.C. was placed in the ambulance and transported to Riley Hospital.

Book and Couch followed the ambulance to the hospital.While Book was driving, he repeatedly asked Couch if she was angry with him and told her that he was "sorry."Tr.p. 423.Shortly after arriving at the hospital, staff members informed Couch that they had been unable to resuscitate H.C.

While at the hospital, Book and Couch spoke with Marion County Sheriffs DetectiveMark Gullion and Deputy Coroner Justin Thompson about the incident.Book stated that after he heard H.C. cry, he went into the bedroom to calm her, and covered her up at approximately 3:00 a.m. Book claimed that he again checked on H.C. approximately one hour later and noticed that she had vomited.Book claimed that when H.C. did not wake up, he took her limp body into the bathroom and noticed that her mouth was full of vomit.

Assistant forensic pediatrician Antoinette Laskey examined H.C.'s body at the morgue.Dr. Laskey observed recent scratches on H.C.'s face, fresh blood from gaping wounds in her mouth that probably had been, caused by her teeth, and petechiae³ over her face and eyelids.Thereafter, forensic pathologist Jennifer Swartz performed an autopsy.In addition to the previous findings, Dr. Swartz discovered recent bruises on H.C.'s back and neck.It was determined that the cause of H.C.'s death was asphyxiation by the mechanical obstruction of the upper airway because of the location of the bruising and hemorrhaging.More specifically, the type and location of the injuries led Dr. Swartz to conclude that a hand was used to smother H.C.She also determined that while the vomit did not actually cause H.C.'s death, it was likely produced as H.C. died.Fresh scratches on H.C.'s face were consistent with H.C. attempting to pry something off her face.

During a search of Book's residence, the police seized H.C.'s mattress, bib, blankets, and some towels.The police also took the sweatpants that Book had worn on the night of March 7, 2006.H.C.'s blood was found on all those items.

On March 13, 2006, Book was charged with murder and neglect of a dependent.A jury trial commenced on May 7, 2007, and during the State's case-in-chief, ten-year-old S.L.—Couch's cousin—testified that she was at Book's house approximately three days before H.C. died.When H.C. walked into the room where Book was attempting to sleep, S.L. saw Book throw a pillow at H.C. and knock her down.Book then told H.C. to "shut the f*ck up."Tr.p. 1182-86.Book did not object to S.L.'s testimony, and the trial court gave the following limiting instruction to the jury:

At this time, the Court does want to give you an admonition.You are being, you are listening to an incident that occurred several days, at least at this point are a different date than the date on which you're making a decision on.You are to only consider this evidence as, as it describes the relationship between H.C. and the defendant.You may not consider it for any other source.Specifically, you may not consider it as being evidence of the defendant's character, nor may you consider it as being that if the defendant did this on such and—on this day before, that he acted on the date of March 10th, or the day in question, that he acted in conformity to that character.You may not consider it for that purpose.You may only consider it for the nature of the relationship between the two.

Id. at 1188-89.

At 4:00 p.m. on the fifth day of trial—a Friday—the prosecutor, Book's counsel and the trial court engaged in a discussion when Book's counsel expressed a desire to wait and decide whether Book would testify after Dr. Scott Wagner, his only defense witness, testified the next morning.It is undisputed that the trial court had already decided that Dr. Wagner would testify on Saturday to accommodate the witness's schedule and to complete the trial before Monday morning.The exchange was as follows:

MR. BAKER [counsel for Book]: Our first witness would be Dr. Wagner, Judge, and we can certainly have him here pretty early [Saturday] morning.But I, I know that the Court wants me to make a decision trying to call Mr. Book at this point, but I truthfully can't make such a decision until after we see how Dr. Wagner's testimony goes.

THE COURT: I'm not giving You that choice, if you're going to call Mr. Book you've, I've got an hour and fifteen minutes of time here.You don't have to call—you can call somebody else if you want to, but ...

MR. BAKER: We, we, our witness would be Dr. Wagner.Judge, I don't know if we will call Mr. Book, and I understand the Court's position of the timing, but also I hope the Court would recognize our right to strategically call witnesses in a certain order, and Mr. Book being the defendant....

THE COURT: Your ... right doesn't trump my management of the trial in terms of the timing of the trial.I'll give you plenty of time to ... make that decision, and there may be something extraordinary, but, again, the jury has got an hour and fifteen minutes worth of time, as the Court does.I'm not forcing, I'm not at all forcing you to rest, but I am saying if you've got evidence, other than Dr. Wagner, it needs to be presented today, because the Court believe, that with Dr. Wagner, if we, if the defendant can testify, or is going to testify, we can do that today, we can do Dr. Wagner.If I understand what you all have told me, Dr. Wagner would be the end of the, would, if Dr. Wagner would be the other, the other portion, Dr. Pless then would be, as I understand, the only rebuttal witness unless— do I hear more in terms of rebuttal?

...

THE COURT: Which makes me think that, and I will give the jurors the option on this, but I believe if that's the situation, we can, we can finish this trial tomorrow.And so the Court has, the Court wants to finish this if we can.Now, if the jurors decide they don't want to go tomorrow in the afternoon, then I'll probably respect their wishes on that.

Tr.p. 1212-23(emphases added).Following a brief recess, the exchange continued:

THE COURT: State having rested, other than Dr. Wagner, does Defense wish to present evidence at this time?

MR. COMMONS [co-counsel for Book]: Not at this time, Your Honor.The only other witness we would attempt to recall would be the defendant, and we're not prepared to call the defendant at this point for a couple of reasons.One of which is, is that during the time the Court has been generous enough to give us, we have been conversing with our client and going through the evidence with him....This is the fifth day of the week, with four days worth of evidence to talk to him about in an attempt to determine whether or not his testimony would add in any way to what the testimony, evidence, already is or not, and we've not had the, had the opportunity to go completely through that evidence with him.Secondly, we are at twenty till 5:00 on a Friday .... this is the most important thing that can happen in Kevin Book's life for the next forty or fifty years potentially, and to put him in the position of having to make this decision at this point when he's not prepared yet to testify, and other circumstances when the jury might not be in the most alert form to take in his evidence and evaluate it properly.In addition to that, we've put him in the position of testifying just long enough to...