Coleman v. State

• Decision Date: 29 November 1989
• Docket Number: No. 79S00-8702-CR-267,79S00-8702-CR-267
• Citation: 546 N.E.2d 827
• Parties: Lennard COLEMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 827

546 N.E.2d 827

Lennard COLEMAN, Appellant, v. STATE of Indiana, Appellee.

No. 79S00-8702-CR-267.

Supreme Court of Indiana.

Nov. 29, 1989.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jane A. Morrison, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in a conviction of appellant of the crime of Attempted Rape, for which he received a sentence of twelve (12) years.

The facts are: On the day of April 30 and continuing into the early morning hours of May 1, 1986, several people attended a party at the apartment of John Walker in Lafayette, Indiana. During the party, alcoholic beverages were consumed. The victim in this case testified that she consumed several wine coolers but did not become intoxicated.

During the course of the party, several persons entered the bedroom of Mary Scott to play a Pac-Man video game. Due to the limited size of the bedroom, the parties playing the machine sat on the bed. The victim in this case was among those playing the Pac-Man game. At approximately 1:00 a.m., the victim found herself alone in the bedroom with appellant. When the others had left the room, appellant closed and locked the door, which he could reach from his seated position on the bed.

The victim stated that he then began placing his hands all over her body, that he pushed her tank top up around her neck and fondled her breasts, that he also ran his hands down inside her pants, that he rubbed her pubic area, and that he inserted his fingers into her vagina. She stated that during this entire attack she was attempting to fight him off, was trying to restrain his hands, and was screaming for help. She testified that as she was screaming appellant grabbed her by the throat and placed one hand over her mouth and nose. Later examination disclosed that she was bruised about the neck from the choking.

Mary Scott heard the victim screaming and went to the bedroom door but found it locked. However, she knew the door could be "popped" open with a screwdriver. She obtained a screwdriver and opened the door. When she entered, appellant was on top of the victim, was holding her down on the bed, and was holding her arms. As soon as Scott entered the room, appellant jumped up and left. The victim, who was in an hysterical state, was taken to another room. Appellant entered and tried to apologize to the victim. However, she started screaming, and he left.

In the meantime, police had been called. When they arrived on the scene, witnesses pointed out appellant, and he was taken into custody. His original arrest was for public intoxication. After arriving at the police station, although he was obviously intoxicated, he was questioned by police and gave a statement which was reduced to writing. However, in his statement he denied attacking the victim.

Appellant claims the trial court violated his right to confront witnesses by permitting the admission of a deposition taken by the State of the complaining witness. Following the episode leading to this prosecution but prior to trial, the victim, on a voluntary basis, entered River Wood Center in Prescott, Wisconsin for treatment of her drug dependency. The admission was for a 21-day period which ran beyond the trial date for this case.

The State petitioned to take the deposition of the victim, which petition was granted. Defense counsel petitioned for public funds to furnish air transportation to Prescott, Wisconsin and the incidental expenses he would incur in attending the deposition. This too was allowed by the trial court, and counsel for defense in fact did attend the taking of the deposition. At that time, there was no mention made of appellant attending the deposition, although he was free on bond at the time. There is no showing in this record that he did not have the ability to get to Wisconsin if he wished to attend the deposition.

At the opening of the deposition, the prosecuting attorney stated, "We're going to start by saying that this is a deposition taken at my request at a time and place agreed to by the parties." The presence of appellant's counsel was noted and there was no objection to proceeding in appellant's absence. The deposition disclosed the facts as above recited.

Appellant now contends there is no showing that the victim could not have been produced to testify directly at the trial. To the contrary, the entire proceeding was commenced on just such a representation to the trial court, who so found. Appellant also takes the position that there is no showing that there was any need for the victim to be at the clinic for treatment, and appellant hypothesizes that the victim's parents placed her there merely to keep her from testifying. There is absolutely no evidence in this record, however, to support such a presumption.

At the beginning of the deposition, the victim testified that she had been there less than two weeks and that her date of discharge was August 21. The date of the deposition was August 7. The date of trial was August 12. The verdict of the jury was August 14. The victim also testified that she knew that River Wood Center was for the treatment of chemically dependent people and alcoholics and stated that she was there because of "drug problems."

To support his theory that the victim's stay at the clinic was merely a pretext to avoid testifying at trial, he points to cross-examination during the deposition in which the victim was reluctant to say that she had a "problem" with drugs. In reading the entire deposition, it becomes apparent that the victim wanted to say that while she did not believe she had a drug problem, her parents did, and thus she was committed.

We see no justification for appellant's claim that the victim's admission into the treatment program was merely a pretext. In order for a deposition to be used in lieu of in-court testimony, its proponent must show that the witness is unavailable, and the testimony must show adequate indicia of reliability. Gillie v. State (1987), Ind., 512 N.E.2d 145. Lack of the victim's availability was clearly established both in the trial court at the time of the motion to take the deposition and at the outset of the deposition itself. There is nothing in either the deposition or the trial record which would call into question the reliability of the deposition.

Appellant cites the case of Coy v. Iowa (1988), 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 for the proposition that a defendant must not be deprived of his right to face a witness. In the Coy case, a screen had been placed to shield the witness from the view of the defendant. Justice Scalia, writing for the Supreme Court, found that this violated the confrontation clause of the Sixth Amendment. However, in the Coy case, the witness was in court and readily available, and the issue was whether she could be shielded from the view of the accused over his objection.

We have an entirely different situation in the case at bar. The trial court had evidence before it to justify a ruling that the witness would be unavailable for trial and that her evidence should be presented by deposition. Consequently, he so ruled. Appellant's counsel made no objection and asked the court for an order to pay his expenses to attend the deposition. However, no mention was made of appellant attending such deposition. In fact, appellant was out on bond at the time and presumably could have attended had he so desired.

Appellant takes the position in his brief that he was deprived of his right to attend. There is nothing in this record to justify such a conclusion. Appellant also argues that by failing to object, his trial counsel was ineffective. However, under the circumstances it might well be that counsel felt appellant was better off having the victim's testimony submitted by deposition rather than by her live testimony in the courtroom. Moreover, it is obvious that, at that juncture, in order to obtain her presence in the courtroom he would have had to obtain a continuance; yet he might have felt that tactically, he would be better off to go to trial at that time. An appellate court will not second-guess an attorney on tactical decisions. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

We would point out further that even if the testimony of the victim is not considered, we still have the testimony of Mary Scott who "popped" open the locked bedroom door to find appellant on top of a screaming, struggling victim. Scott's testimony alone is enough to support the verdict of the jury. We see no reversible error in the taking or use of the victim's deposition.

Appellant contends the trial court erred in admitting the statement he gave immediately after he was arrested. He claims that he was too intoxicated to freely and knowingly give his consent to the taking of such a statement. There is no question from the evidence in this record that appellant was intoxicated at the time he gave his statement. However, intoxication alone is not enough to demonstrate inability to form intent or give consent. It is only one factor which may be considered in determining the subject's ability to give a statement which is voluntary. Burdine v. State (1987), Ind., 515 N.E.2d 1085.

An examination of appellant's statement gives every indication that he was intoxicated but not so intoxicated that he was unable to respond to such questions as his name, his social security number, his home address, and so forth. It also is abundantly clear that he understood why he was in the police station and what he was accused of doing. The irony of appellant's argument that he was so intoxicated that he did not know what he was doing is that he was not so intoxicated as to admit any guilt. He skillfully parried every question asked of him by the police officers in attendance. Never once did he waver from his...