Carpenter v. State
| Citation | 786 N.E.2d 696 |
| Decision Date | 14 April 2003 |
| Docket Number | No. 49S04-0204-CR-0257.,49S04-0204-CR-0257. |
| Parties | William CARPENTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
Lesa Lux Johnson, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
ON PETITION FOR TRANSFER
Defendant William Carpenter was charged with and found guilty of child molesting as a class A felony for performing deviate sexual conduct with his three-year-old daughter, A.C.1 The Court of Appeals affirmed in a not-for-publication opinion. William Carpenter v. State, No. 49A04-0105-CR-181, 763 N.E.2d 499 (Ind. Ct.App. Feb.4, 2002). Defendant sought and we granted transfer. 774 N.E.2d 514 (table).
The evidence most favorable to the judgment indicates that on the morning of May 19, 2000, after Defendant had gone to work, A.C. complained to her mother that "her `moo moo' hurt." She told her mother that "her daddy put his fingers in her `moo moo' and that it hurt real bad." She also told her mother that "her daddy's `moo moo' spit on her."
In addition to A.C.'s statements to her mother, the following additional evidence is of significance in this case: (1) the testimony of A.C.'s maternal grandfather as to a conversation he had with A.C. shortly after May 19, 2000; (2) a videotaped interview of A.C. conducted by Detective Karen Dague and Amy Hinshaw from Child Protective Services on May 19, 2000; and (3) a medical examination of A.C. conducted by Dr. Philip Merck at Wishard Memorial Hospital on May 19, 2000. The details of all of this evidence will be discussed infra.
Prior to the trial, Master Commissioner Diane Marger Moore conducted a "Child Hearsay Hearing" in which she determined that A.C. was not competent to testify. A.C. was cross-examined by defense counsel during this hearing. The trial court went on to rule that A.C.'s mother and grandfather could testify at trial as to the statements A.C. made to them and that the jury could view Dague and Hinshaw's videotaped interview with A.C.
This case requires us to determine whether certain out-of-court statements of a child witness found to be incompetent to testify at trial may be used as evidence in a child molesting prosecution. It requires us to examine the interrelationship of the Indiana Rules of Evidence and the Legislature's "protected person statute," Ind. Code § 35-37-4-6 (1998), and to revisit many of the issues we discussed in Pierce v. State, 677 N.E.2d 39 (Ind.1997).
There is no dispute that the statements made by A.C. to her mother and grandfather and those made to the detectives on the videotape constituted hearsay. Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay evidence is inadmissible pursuant to Evidence Rule 802, unless it fits within a few well-delineated exceptions. Miller v. State, 575 N.E.2d 272, 274 (Ind.1991).
Hearsay is excluded from judicial proceedings because "its admission defeats the criminal defendant's right to confront and cross-examine witnesses against him." Williams v. State, 544 N.E.2d 161, 162 (Ind. 1989). At the same time, "[h]earsay evidence often helps the jury find the truth; excluding hearsay testimony can deny the jury crucial evidence." Billie Wright Dziech & Charles B. Schudson, On Trial 136 (1991) (discussing confrontation and hearsay in child sexual abuse prosecutions). Likely in an effort to balance these competing interests, the Indiana General Assembly enacted the "protected person statute," Ind.Code § 35-37-4-6, setting forth a detailed set of conditions under which evidence that is "not otherwise admissible" will be allowed in cases involving crimes against children and individuals with certain disabilities. To the extent relevant to this case, these conditions provide that the statements and videotape would be admissible if (1) the trial court found, in a hearing attended by the child, that the time, content, and circumstances of the statement or videotape provided sufficient indications of reliability and (2) the child was available for cross-examination at the hearing.2
The facts here are highly reminiscent of Pierce. In each, a child made statements to relatives and in a videotaped interview to authorities that allege criminal sexual abuse of the child on the part of the respective defendants. The respective trial courts ruled the children were incompetent to testify at trial because they could not understand the difference between the truth and a lie. The rules prohibiting the use of "hearsay" ordinarily bar the prosecution from using such statements and videotape at trial as evidence against the defendant. But the court both in Pierce and in this case found the statements and videotapes admissible under the protected person statute.
Because of the similarity, we will use the analytical template of Pierce to examine Defendant's claims in this appeal.
The essential facts in Pierce were these. At approximately 10 AM on November 18, 1993, Pierce enticed a child to his car from a Wal-Mart where the child had been shopping with her mother. Pierce returned her to the store shortly thereafter where she told her mother and, a few minutes later, arriving sheriff's officers that he had unbuckled her belt and put his hand down her pants. At the sheriff's recommendation, the mother then took the child to a doctor for a physical examination. The exam revealed no injuries. The mother then took the child to the sheriff's department for a videotaped interview with the sheriff. The interview began shortly after 2:30 PM. The videotape was not included in the record on appeal and we concluded that there was no showing that the videotape was more than cumulative of the statements the child made immediately following the incident. Pierce, 677 N.E.2d at 45.
The Pierce trial court held a hearing as required by the statute and concluded that both the child's statements at the Wal-Mart to her mother and the sheriff's officers and the videotaped statement given to the sheriff later in the day provided sufficient indications of reliability and were otherwise admissible under the protected person statute.
As Defendant does here with respect to the A.C.'s statements to her mother and grandfather, Pierce argued that the testimony recounting the child's statements to her mother and the sheriff's officers did not satisfy the statutory requirements of reliability. In holding the trial court within its discretion in allowing the testimony, we noted its findings that the statements were "spontaneous," that they occurred "a very short time" after the incident, that the child was "still excited" when the statements were made, and that "there was no time for an adult to plant a story in her head." Pierce, 677 N.E.2d at 45. We went on to note that these findings were supported by the record.
We were more skeptical of the trial court's finding that the videotaped interview was also sufficiently reliable. We expressed particular concern that the videotaped interview with the sheriff Pierce, 677 N.E.2d at 45.
However, we concluded that Pierce had not established reversible error since he made "no showing that the videotape was more than cumulative of the statements [the child] made immediately following the incident." Id.
We begin our analysis of the disputed evidence in this case with the videotape to which the State and Defendant give dramatically different characterizations. The State says:
[T]he trial court properly found that the videotape had sufficient indicia of reliability. As the trial court noted, A.C. spoke to two unknown adults. These adults spoke to A.C. on her level without attempting to overcome A.C.'s willingness to answer their questions. Further, the questions were not leading, nor where they suggestive of answers. Finally, throughout the interview, A.C. used consistent language and terminology with which she was familiar.
For his part, Defendant urges us to review the videotape ourselves. He says, Appellant's Br. at 17.
Highly sensitive to our role as a court of review only, we have nevertheless reviewed the videotape. In the interview with a police detective and child welfare caseworker, A.C. said that her father "touched her moo moo." Several times in the interview, A.C. was asked questions about her "moo moo." The detectives asked her to "describe her moo moo"; "to draw her moo moo"; and "to point to her moo moo." Initially, A.C. responded either by shrugging her shoulders or telling the detectives, "I don't know." A.C. was also unable or unwilling to point to her knee, her eyes, or her nose. At one point, A.C. pointed at her finger and called it "her nose." However, A.C. did tell the detectives that she "would have to go home to show them" her moo moo. She also indicated that both the officer and her father had "moo moos." When asked if her "moo moo" was with her now, A.C. responded "yes." When asked if her "moo moo" was on her body, A.C. responded "yes." When the detective pointed to her head and...
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