Forrester v. State

Decision Date07 October 1982
Docket NumberNo. 580S146,580S146
Citation440 N.E.2d 475
PartiesDonald FORRESTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

David M. Adams, Castor, Richards, Adams & Boje, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted after trial by jury of Rape, Ind.Code Sec. 35-42-4-1 (Burns 1979), Criminal Deviate Conduct, Ind.Code Sec. 35-42-4-2 (Burns 1979), and Criminal Confinement, Ind.Code Sec. 35-42-3-3 (Burns 1979) and sentenced to ninety-five (95) years imprisonment. This direct appeal presents the following issues:

(1) Whether the trial court erred in giving certain preliminary instructions.

(2) Whether the trial court erred in allowing the testimony of certain witnesses.

(3) Whether the trial court erred in allowing the testimony of the prosecutrix.

(4) Whether the trial court erred in allowing the testimony of the accomplice.

(5) Whether the trial court erred in admitting Defendant's pre-trial statements into evidence.

(6) Whether the trial court erred in refusing to suppress certain items of evidence.

(7) Whether the trial court erred in admitting certain exhibits into evidence.

(8) Whether the trial court erred in failing to admonish the jury to disregard witness' references to a jacket which was not admitted into evidence.

(9) Whether the trial court commented upon Defendant's failure to testify.

(10) Whether the evidence is sufficient to support the convictions of Rape and Criminal Deviate Conduct as Class A felonies.

(11) Whether the trial court erred in not giving instructions upon Battery as a lesser included offense.

(12) Whether the trial court erred in including certain items of data in the pre-sentence investigation report.

(13) Whether the trial court erred in conducting the sentencing.

(14) Whether the trial court erred in imposing an enhanced sentence and in making the sentences run consecutively.

The evidence most favorable to the State reveals that at about 3:15 a.m. on April 1, 1979 the prosecutrix drove out of the parking lot at Castleton Square shopping mall in Indianapolis, after having been to a restaurant with some acquaintances. Another vehicle followed her down 82nd Street and then north on Allisonville Road.

About a block from her home she stopped her car, and the pursing vehicle, a Chevrolet Camaro, also stopped. Defendant approached the prosecutrix's car, stated that she knew him and showed her a driver's license. She returned the license and he said, "I knew what I was going to do," whereupon she looked up and saw that he was holding a "little automatic pistol." Defendant then removed the keys from the ignition and ordered her back to his automobile. An accomplice then drove Defendant's automobile while Defendant, in the backseat, forced the prosecutrix to perform fellatio upon him. He also raped her twice. She told him that she was having her menstrual period and refused to cooperate with his orders, but he threatened her life, and she submitted. The accomplice drove to a secluded area, and as Defendant reached into his jacket, the prosecutrix, thinking he was reaching for the gun and fearing for her life, opened the passenger door and jumped from the moving vehicle. She ran to some nearby houses to seek help and to summon the police.

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ISSUE I

Defendant contends that the trial court erred in giving preliminary instructions numbered 8 and 12. He has failed, however, to set forth the "verbatim objections" made at trial as required by Ind.R.App.P. 8.3(A)(7). We, therefore decline to treat the issues other than to state that we have reviewed the instructions, the objections and the authority cited and have considered his arguments. We find the assignments of error to be without merit.

ISSUE II

Defendant next contends that the trial court erred in allowing the testimony of several witnesses.

At trial over two separate objections, the physician, who examined the prosecutrix at a hospital after the attack, testified about the condition of her external genitalia and tests he performed. He also stated that her hymen had been recently torn. Defendant argues that this testimony allowed the jury to infer that the prosecutrix was a virgin at the time of the attack. He asserts that this is evidence of the victim's past sexual conduct inadmissible under the Rape Shield Statute, Ind.Code Sec. 35-1-32.5-1 (Burns 1979):

"In a prosecution for a sex crime as defined in IC 35-42-4 evidence of the victim's past sexual conduct, opinion evidence of the victim's past sexual conduct may not be admitted, nor may reference be made thereto in the presence of the jury, except as provided in this chapter."

Defendant's position is not well taken. It is the victim, not the accused, that the statute was designed to shield. Sections (2) and (3) of the statute provide exceptions, in the event the Defendant, under prescribed circumstances, proposes evidence proscribed by Section 1. Conspicuous by its absence is a corresponding requirement applicable to the State. The exceptions, it will be observed, are to permit evidence of past sexual activity supportive of a defense, i.e. it grants relief, under appropriate circumstances, to the party affected. There was no need for relief provisions for the State, because the proscription, obviously was not intended to apply to it. It might, arguably, be otherwise under the revised rape shield statute, effective September 1, 1982 (I.C. 35-37-4-4); however the revision is designed to shield witnesses as well as victims.

Obviously, testimony that a prosecutrix had had no prior sexual experience would be inadmissible because irrelevant to the crime charged. However, where, as here, the testimony was of a physical finding that corroborated the evidence that intercourse had occurred, it is immaterial that it, coincidentally, revealed a prior existing condition that might have been prejudicial to the defendant. On balance, the relevance greatly outweighed the tendency for undue prejudice.

At trial a police officer testified concerning the tire prints which were found at the scene:

"Q. When those individuals, especially when Officer Tom Davidson arrived at the scene, had those prints changed since the first time you observed them?

"WILMER E. GOERING, II: Your Honor, I'll object to that and ask leave to ask a preliminary question.

"THE COURT: You may ask a preliminary question.

"Q. From the time you arrived on the scene until uh, Inspector David-, Investigator Davidson arrived, were you there constantly?

"A. No sir.

"WILMER E. GOERING, II: Your Honor, I would therefore object that it's beyond the ability of the witness to answer that question since he wasn't on the scene.

"THE COURT: The way the question was answered he may ask, answer it. The way the question was asked, it's a proper question, he may answer."

"A. The tire tracks had not changed from the first time I had saw them until after Investigator Davidson arrived upon the scene." R. at 366-67.

We agree with the trial court's ruling. The question did not ask the witness to draw a conclusion as to whether or not the tire prints had changed. Rather, it asked if the witness observed any change in the prints between the time he first observed them and the time Officer Davidson arrived. His answer was that the prints had not changed, that is, that they appeared the same to him when Officer Davidson arrived as they had appeared to him earlier.

Also at trial Defendant objected to the testimony of a police officer who compared a plaster cast of a tire print taken from the scene with a tire removed from Defendant's automobile. Defendant contends that the witness was not qualified to give his opinion:

"Forrester questions Oliver's training and expertise with regard to giving a comparison opinion on a tire print. No specific information was elicited from him as to any training that he had in this area. Nor was any standard set forth for making such a comparison. Appellant's Brief at 29.

The record does not bear him out. The officer testified:

"A. I'm assigned to the State Police Laboratory located in the first floor of the State Office Building in Indianapolis and I work in the trace evidence section and trace evidence deals with things like uh, latent fingerprints, arson examinations, physical comparisons and, uh, I also do hair and fiber examinations.

"Q. Have you had any special training or schooling in your profession for the State Police?

"A. Yes I'm a graduate of Anderson College, bachelor of arts degree in Mathematics, I attended Indiana State Police Recruit School, I've attended courses at the F.B.I. Academy, also been to McCrone Research Institute in Chicago dealing with courses in misroscopy and I've also done training in the laboratory itself." R. at 476-77.

The determination of whether a witness is qualified to testify as an expert lies in the sound discretion of the trial court. Niehaus v. State, (1977) 265 Ind. 655, 662, 359 N.E.2d 513, 516, cert. denied, (1977) 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188. We find no abuse of discretion.

At trial the State called a witness, a cocktail waitress, to connect Defendant and the accomplice to the area of the shopping mall, where the prosecutrix had gone on the night of the crime. On cross-examination the witness stated that a friend of the accomplice had told her that the two men were together and then that she had seen them together in the club where she worked:

"Q. So because, what makes you say they were together?

"A. Well...

"Q. On that occasion?

"A. Because uh, our manager, our disc jockey, our doorman, and Pam saw them leave together." R. at 494.

Defendant asked that the answer be stricken as nonresponsive and as containing hearsay "not anticipated in my question." We do not understand this objection. Counsel asked a question and the...

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