Casada v. State

• Decision Date: 28 September 1989
• Docket Number: No. 47A01-8903-CR-96,47A01-8903-CR-96
• Parties: Lawrence Dale CASADA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 189

544 N.E.2d 189

Lawrence Dale CASADA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 47A01-8903-CR-96.

Court of Appeals of Indiana First District.

Sept. 28, 1989.

Nick J. Herthel, Bedford, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Lawrence Dale Casada appeals his conviction of two (2) counts of Attempted Child Molesting, a class C felony. ¹ We reverse and remand.

FACTS

Casada was the step-father of E.T. E.T. lived with her own father, her step-mother and her siblings, but visited her mother and Casada for two (2) weeks every summer. E.T. alleged that, while she was visiting her mother, Casada came into E.T.'s bedroom one evening on or about August 10, 1987. E.T. alleged that Casada got into bed with her, pulled up her nightgown and pulled down her panties. He then placed his penis in the area of her vagina and anus and wiggled back and forth, according to E.T.

The following day E.T. called her step-mother to take her home. The day following E.T.'s return home, she reported her allegations to her step-mother. Her step-mother informed her father and they took E.T. to the hospital emergency room where E.T. related her story to a nurse and a physician. On August 12, 1987, E.T. repeated her story to a police detective who took her complaint.

Although he had not been arrested or charged with Attempted Child Molestation, Casada signed a writing on October 2, 1987, which stated that he had requested to take a polygraph examination and was stipulating his agreement to the admissibility of the results. The prosecuting attorney also signed the stipulation agreement. Casada had no attorney at that time. The agreement included a statement that Casada acknowledged he fully understood the results of the polygraph examination could not be introduced at trial in the absence of his stipulation agreement. The stipulation agreement also included Casada's waiver of his fifth amendment right to remain silent to questions asked of him during the polygraph examination. After the prosecuting attorney and Casada signed the stipulation agreement, the polygraph examiner orally advised Casada of his Miranda rights, see Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, including Casada's right to talk to a lawyer for advice before being asked any questions and to have his attorney with him during the questioning. ² The polygraph examiner then reviewed the stipulation of admissibility with Casada, signed the agreement himself and administered the examination. On October 13, 1987, Casada was charged with Attempted Child Molesting and Child Molesting. The polygraph results were admitted by the State at jury trial over Casada's motion to suppress evidence, motion in limine, and trial objections.

Among other witnesses, the State called E.T. to testify during the State's case at Casada's trial. However, E.T. became so distraught on the witness stand that she was unable to answer even the State's first question. The State asked for a recess. During the recess a 6' X 4' chalkboard was repositioned so that E.T. and Casada could not see each other but the judge and the jury could see both E.T. and Casada. Photographs of the repositioned chalkboard were taken from several angles. The court returned to the record and described the repositioning of the chalkboard. The court stated that E.T. had become so distraught that the repositioning of the chalkboard had been necessary to enable E.T. to testify on direct examination. No further findings

of the necessity of the repositioning to enable E.T. to testify were made on the record. E.T. was able to testify following the repositioning. The chalkboard was removed during cross-examination and redirect examination. The jury convicted Casada of two (2) counts of Attempted Child Molesting and the court entered judgment against Casada.

ISSUES

Casada raises five issues on appeal. Because we find the first issue dispositive, we address only that issue and Casada's third issue, which is likely to arise upon retrial of the case.

1. Did the placement of a chalkboard between Casada and E.T. during direct examination of E.T. by the State deny Casada his constitutional rights to confront the witness against him and to be confronted by that witness?

2. Did the court correctly admit the results of Casada's polygraph examination where their admissibility was stipulated to by the State and Casada, pro se, before Casada was advised of his constitutional right to counsel and before he waived his right to counsel?

DISCUSSION AND DECISION

Issue One

I.

Casada argues that his constitutional right to be confronted by a witness against him and to confront a witness against him was violated when the trial court ordered placement of a 6' X 4' chalkboard between Casada and E.T. During direct examination of E.T., Casada could not see E.T. and E.T. could not see Casada because of the placement of the chalkboard.

The sixth amendment of the United States Constitution guarantees an accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The sixth amendment's confrontation clause was made applicable to the states through the fourteenth amendment of the United States Constitution. Pointer v. Texas (1965), 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923, 926; Franklin v. Duckworth (N.D.Ind.1982), 530 F.Supp. 1315, 1319. In addition, Ind. Const. of 1851, art. I Sec. 13 states that, "In all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face ..." Until recently both Indiana courts and federal courts held that the essential purpose of an accused's constitutional right to confrontation was to give an accused the opportunity to cross-examine the witnesses against him. In Iseton v. State (1984), Ind.App., 472 N.E.2d 643, we held that the purposes of the confrontation clauses of the federal and state constitutions are to insure reliability by means of the oath, to expose the witness to the probe of cross-examination, and to permit the trier of fact to weigh the demeanor of the witness. Id. at 648. Although the Indiana Constitution specifically provides criminal defendants with the right to confront their accusers face-to-face, the Indiana Supreme Court stated in Miller v. State (1987), Ind., 517 N.E.2d 64, 69, that cross-examination is the primary interest secured by the confrontation clause of Ind. Const. of 1851, art. I Sec. 13. The United States Supreme Court held that the sixth amendment had similar purposes in California v. Green (1970), 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497. The Court reaffirmed these purposes as recently as Lee v. Illinois (1986), 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526.

However, recently the United States Supreme Court clarified that the confrontation clause of the sixth amendment provides two types of protections for a criminal defendant. In Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53, a plurality of the Court held that the confrontation clause provides a criminal defendant both the right to physically face one who testifies against him, and the right to confront that witness and conduct cross-examination. Finally, in Coy v. Iowa (1988), --- U.S. ----, ----, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857, 864-65, a majority of the Court determined that an accused has the right to be confronted face-to-face by a witness giving testimony against him. Writing for a majority of the court, Justice Scalia wrote that:

"The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it ...

"It is always more difficult to tell a lie about a person to his face than behind his back.... The confrontation clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus, the right to face-to-face confrontation serves much the same purpose as a less explicit component of the confrontation clause that we have more frequent occasion to discuss--the right to cross-examine the accuser; both ensur[e] the integrity of the fact-finding process."

--- U.S. at ----, 108 S.Ct. at 2802, 101 L.Ed.2d at 866 (citations omitted).

Coy involved an Iowa statute which permitted child witnesses to testify from behind a screen. The Court, holding that the Iowa statute unconstitutionally violated a defendant's right to confront his accusers, stated:

"The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing the appellant as they gave their testimony, and the record indicates that it was successful in this objective. It is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter."

Id.

In Miller v. State (1987), Ind., 517 N.E.2d 64, 71, the Court held that the confrontation clause in Ind. Const. art. I Sec. 13 requires face to face confrontation and in Miller v. State (1988), Ind., 531 N.E.2d 466, the Court recognized the Coy holding that the sixth amendment also requires face-to-face confrontation. The Court discussed Ind.Code Sec. 35-37-4-6, which allows a videotaped statement of a child under age 10 to be substituted for the victim's testimony at trial. Relying on Coy and the documented history of Ind.Code Sec. 35-37-4-6(c)(1), Miller held that Ind.Code Sec. 35-37-4-6 requires a child victim to physically confront an accused at some time. Miller, 531 N.E.2d at 470. The statute requires a pre-trial hearing to determine the admissibility of a child victim's out-of-court statement or video tape, which hearing must be adversarial in nature with physical confrontation between accused and victim. The purpose of the hearing "is to give...