Hall v. State

• Decision Date: 03 April 1978
• Docket Number: No. 1-1077A243,1-1077A243
• Citation: 176 Ind.App. 59,374 N.E.2d 62
• Parties: Merle Lee HALL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 62

374 N.E.2d 62

176 Ind.App. 59

Merle Lee HALL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1-1077A243.

Court of Appeals of Indiana, First District.

April 3, 1978.

Mary Ann Gay, Monroe County Public Defender, Bloomington, for appellant.

Theo. L. Sendak, Atty. Gen., Mark Allen Mertz, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Merle Lee Hall (Hall) brings this appeal from his conviction for rape.

The facts of the case show that on December 3, 1976, Hall was charged with rape. On the day of trial, March 31, 1977, Hall moved for a continuance based on the grounds that newly discovered evidence had been brought to his attention on that day and it needed to be investigated. The motion for continuance was overruled by the court, and the cause proceeded to a trial by jury, whereupon the jury returned a verdict of guilty against Hall.

Hall's counsel had received a letter allegedly written by the victim's father and stepmother to the mother of the victim. This alleged that the victim had previously received psychiatric treatment for compulsion to lie and for sexual problems and that she had previously unjustly accused other men, including her own father, of raping her. Additionally, the letter alleged that the victim had threatened, in the words of her stepmother, to "(T)ell everyone that . . . my dad, one of my brothers-in-law, and my brother had all raped her. She said she would make them believe it too."

It was subsequently learned at trial that this letter was at one time in the possession of the chief investigating officer for the State in this cause. This officer, however, judging the letter unimportant in the case at bar, did not turn it over to the prosecutor. As a result, even though Hall filed a timely Notice for Discovery and Inspection specifically requesting the production of exculpatory evidence, the letter was not included in the State's Answers to Discovery or any of the State's Supplementary Discovery Responses.

When the letter was delivered to Hall's counsel on the day of the trial, he moved for a continuance that he might contact and arrange for witnesses, who had knowledge of the facts mentioned in the letter, to testify at the trial. This motion was denied by the court.

In his motion to correct errors, Hall alleged five separate errors. This opinion shall only address the third alleged error, as our disposition makes needless any consideration of the other alleged errors. The issue of error before this court for review is:

DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION FOR A CONTINUANCE, FILED MARCH 31, 1977, THE DAY OF TRIAL?

A correct determination of this issue requires our resolution of several preliminary questions:

(1) Whether any of the evidence contained in the letter in question was admissible under current Indiana law?

(2) Whether any of the evidence contained in the letter was admissible under the Indiana Rape Shield Law, IC 1971, 35-1-32.5-1? (Burns Code Ed.)

(3) Whether the evidence contained in the letter was exculpatory, and, if so, was there a duty on the prosecutor to disclose such evidence to Hall?

(4) Whether Hall's Motion for Continuance was procedurally sound under Indiana Rules of Procedure, Trial Rule 53.4?

(5) Was the denial of the Motion for Continuance a denial of Hall's rights?

(1)

Indiana law would not allow the actual letter into evidence in this case, as it is hearsay. As stated in Wells v. State (1970), 254 Ind. 608, 614, 261 N.E.2d 865, 869, quoting from McCormick, Evidence § 225:

Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.

The Wells court, citing to treatise authorities, also said:

The principal reasons for the exclusion of hearsay evidence are that the out-of-court declarant was not under oath, not subject to confrontation by the trier-of-fact, and most importantly, not subject to cross-examination by the accused.

Ibid.

The information contained in the letter in this case, however, might have assisted the defense by leading to persons who were threatened by the victim and to experts who could perhaps produce testimony of the victim's mental condition pertaining to her propensity to lie. Such evidence, based on actual personal knowledge of the witnesses, would have been admissible at trial for at least impeachment purposes.

As evidenced in the trial record, the victim expressly denied having threatened to accuse persons of raping her, other than her father. She further testified that her father did indeed rape her. Yet the trial court did not grant a continuance on the basis of the letter, which might have led to the procurement of the victim's father as a witness. He, as well as others, should have been allowed to testify to impeach the victim's testimony.

(2)

Next, it is important to consider whether or not the testimony of any witnesses procured as a result of the letter would have been admissible under Indiana's Rape Shield Statute, IC 1971, 35-1-32.5-1. This statute provides:

In a prosecution for the crime of rape (IC 1971, 35-13-4-3) . . . evidence of the victim's past sexual conduct, opinion evidence of the victim's past sexual conduct, and reputation 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 (35-1-32.5-1 35-1-35.5-4).

The statute excludes the admission of opinion, reputation, and specific instance of the victim's past sexual conduct unless the evidence is of past sexual conduct with the defendant or shows that the act upon which the prosecution was founded was committed by someone other than the defendant. The Indiana statute seems to suffer more from underinclusion than from overinclusion, and any testimony other than that dealing with the victim's past sexual conduct should have been allowed. In this case, the essence of evidence suggested by the letter goes directly to the victim's credibility, not her history of sexual conduct. We conclude, therefore, that the witness testimony procured as a result of allegations made in the letter would not have been excluded by Indiana's Rape Shield Statute.

(3)

As to the third consideration, the evidence, or a link to evidence, in the letter in question, whether exculpatory as to the defendant or not, is surely favorable to the defendant. It was stated in Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215, that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of good faith or bad faith of the prosecution."

In the case at bar, however, the prosecutor never received the letter. But, according to United States v. Bryant (1971), 142 U.S.App.D.C. 132, 140, 439 F.2d 642, 650, "(T)he duty of disclosure affects not only the prosecutor, but the government as a whole, including its investigative agencies." It was also stated in Bryant, that:

Such suppression must be regulated if the disclosure requirement is to be a strong safeguard; if only the prosecutor were under the command of Brady, the right to a fair trial would depend on uncertain and uncontrolled decisions of Government investigators.

142 U.S.App.D.C. at 140, 439 F.2d at 650.

Therefore, when the investigative forces of the State discovered the letter in question, it should have been turned over to the prosecutor for a determination of its value. In our opinion, the reasonable, seasoned police officer should have determined that a letter referring to an alleged rape victim's psychiatric treatment for a compulsion to lie and her propensities to accuse other men of raping her would be of importance to the prosecution.

Bryant also held that the government has the burden to show that it has "promulgated, enforced, and attempted in good faith to follow rigorous and systematic procedures...