Harrington v. State
| Decision Date | 03 October 2001 |
| Docket Number | No. 10A01-0106-CR-222.,10A01-0106-CR-222. |
| Citation | 755 N.E.2d 1176 |
| Parties | Duane K. HARRINGTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Duane K. Harrington appeals his conviction after jury trial of child molesting, a Class C Felony. We affirm.
Harrington raises three issues for our review:
1) Whether the trial court erred in allowing the State to strike a prospective juror who was African-American;
2) Whether the trial court abused its discretion in determining that the victim, a five year old child, was competent to testify at trial; and
3) Whether the trial court abused its discretion in not excluding from evidence statements and a hand-written letter by Harrington.
Harrington lived for a time with Tracy Shepherd and her son, T.S.; in addition, the pair had a son together during their cohabitation. After Harrington and Shepherd separated, Harrington continued to have alternate weekend visitation with the two boys. Then T.S. reported to his mother that Harrington fondled him during a visitation. Shepherd notified the police of T.S.'s allegations. The child was interviewed, and Harrington met with police investigators regarding the charges. On August 31, 1999, Harrington submitted to a polygraph examination, the results of which were inconclusive. Harrington then acknowledged to police officers that he fondled T.S., and he wrote a letter of apology to the child.
Harrington was arrested and charged with child molesting on September 17, 1999. Prior to the trial, Harrington filed a motion to suppress his statement to police as well as his hand-written apology letter to T.S. The trial court denied the motion to suppress. After a jury trial, Harrington was convicted as charged and sentenced to four years to be executed in the Department of Correction. Harrington then brought this appeal.
The equal protection clause contained in the Fourteenth Amendment to the United States Constitution prohibits the prosecution's use of peremptory challenges in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 83 (1986). This court will not set aside a trial court's finding regarding whether a prosecutor had discriminatory intent in striking a juror unless the finding is clearly erroneous. McCants v. State, 686 N.E.2d 1281, 1284 (Ind.1997). The trial court's decision on the ultimate question of discriminatory intent represents a finding of fact which is accorded great deference on appeal, because the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge. Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997).
Harrington argues that he was denied a fair trial because the trial court allowed the State to use a peremptory challenge to strike potential juror Polela, who is African American as is Harrington. To raise a prima facie equal protection clause claim, a defendant must establish that: (1) the juror is a member of a cognizable racial group; (2) the prosecutor has exercised peremptory challenges to remove that group's members from the jury; and (3) the facts and circumstances of this case raise an inference that the exclusion was based on race. Wright, 690 N.E.2d at 1104. Once a defendant makes the requisite prima facie showing, the burden shifts to the prosecutor to provide a race-neutral explanation for the peremptory strike. Id. If the explanation, on its face, is based on something other than race, the explanation will be deemed race neutral. McCants, 686 N.E.2d at 1284. The trial court must then decide whether the defendant has shown that the state committed purposeful race discrimination in the process of jury selection. Id. The prosecution's explanation is not required to rise to the level of a challenge for cause. Barnett v. State, 637 N.E.2d 826, 830 (Ind.Ct.App.1994).
During jury selection, Harrington objected to Polela's being stricken. The trial court then asked the State to provide a race-neutral explanation for the strike. The State responded that Polela expressed concern because he is a teacher, and his absence would disrupt his students' learning. It also struck Polela because he has previously taught special needs students, and as the State anticipated the defense would raise the issue of Harrington's comprehension level or learning ability during trial, the prosecutor was concerned Polela would be unduly sympathetic to a learning-disabled defendant. The State also noted it had not struck two other African American jurors who remained on the panel. Finally, the prosecutor noted Polela is a science teacher, and "they like things to add up, and I don't like those kinds of jurors and routinely strike science teachers." Transcript at 67. After the State gave these reasons for the strike, the trial court determined these reasons to be race-neutral; thus, the strike was permitted, and Polela was excused from the panel.
Harrington argues the trial court committed clear error because the State's race-neutral reasons were not plausible. He notes the State did not ever directly question Polela to further probe his statements. He notes several potential jurors expressed concerns about being away from their homes and/or jobs for two days, and the State did not pursue this issue in any questioning of Polela. He also notes that while five panel members indicated familiarity with persons who had learning disabilities, only three of the five were struck by either party; thus, the State did not make any attempt to strike a juror who gave a response similar to Polela's. Harrington additionally argued that other Indiana cases on race-based peremptory challenges all dealt with more substantial race-neutral explanations besides simply "not liking science teachers," for example. Instead, Harrington argues, the reasons given by the State were actually to conceal its racially based strike.
We do not find clear error in the trial court's decision to allow the strike. Even after Polela was struck, two African American jurors remained on the panel. While we question whether the State's concern over Polela's potential sympathy with learning-disabled individuals alone would justify a strike in the face of a Batson challenge, the State's reasons, when considered cumulatively and in conjunction with the actual circumstances surrounding this strike, simply do not add up to purposeful race discrimination. Affording the trial court's decision the required degree of deference, we find the trial court did not err in allowing the strike.
"Every person is competent to be a witness except as otherwise provided in [the Indiana Evidence] rules or by act of the Indiana General Assembly." Ind. Evidence Rule 601. Rule 601's failure to presumptively exclude children does not prohibit special inquiry into their competency prior to testifying when the issue is raised by a defendant. Burrell v. State, 701 N.E.2d 582, 585 (Ind.Ct.App. 1998). A determination as to a witness's competency lies within the sound discretion of the trial court and is reviewable only for a manifest abuse of that discretion. It is within the sound discretion of the trial court to determine whether a child is competent to testify based upon the judge's observation of the child's demeanor and responses to questions posed to her by counsel and the court, and a trial court's determination that a child is competent will only be reversed for an abuse of discretion. Newsome v. State, 686 N.E.2d 868, 873 (Ind.Ct. App. 1997).
Harrington argues the trial court did not hear enough persuasive evidence to determine five-year-old T.S. competent to testify. He notes that during the competency hearing, T.S. was not able to inform the trial court where he lived. He also notes that T.S. told the trial court he attended the second grade; this is not accurate, as T.S. was only five at the time of trial. T.S. also testified during the trial that Harrington touched his private parts twice; however, the child had never mentioned more than one incident prior to trial. T.S. testified during trial that he had visitation with Harrington three times, when actually T.S. and his brother saw Harrington every other weekend for approximately six months. Finally, during trial, T.S. was not able to testify as to what he was wearing during the incident, in what room in Harrington's house it happened, or whether anyone else was present at the time. Thus, Harrington argues, T.S. was not a competent witness.
The enactment of Indiana Evidence Rule 601 did not affect previous Indiana decisions regarding the competence of children to testify, and a trial court is still required to determine whether the child (1) understands the difference between telling a lie and telling the truth, (2) knows she is under a compulsion to tell the truth, and (3) knows what a true statement actually is. Newsome, 686 N.E.2d at 872. In the case of a small child, the term "truth" may have many connotations, including simply what parents or other persons in authority may say. One proper technique for determining that a prospective child witness understands the meaning of truth is to ask the child to give an example of someone telling a lie. Russell v. State, 540 N.E.2d 1222, 1224-25 (Ind. 1989).
The record shows that the prosecutor reminded T.S. he had promised to tell the truth, and that meant he had to tell the truth. T.S. responded affirmatively to these statements. The prosecutor questioned T.S. about his general understanding...
To continue reading
Request your trial
-
Boney v. State
...had been killed by her grand-nephew, reasoning that witness might have been equally biased against both parties); Harrington v. State, 755 N.E.2d 1176, 1180 (Ind.Ct.App.2001) (finding no clear error where the State struck an African American teacher from the panel because the prosecutor did......
-
Richard v. State
...(2) knows he or she is under a compulsion to tell the truth, and (3) knows what a true statement actually is. Harrington v. State, 755 N.E.2d 1176, 1180 (Ind.Ct.App.2001) (citing Newsome, 686 N.E.2d at However, establishing a child's competency to testify at trial utilizing those three fact......
-
Oo AKA v. State
...child witness understands the meaning of truth is to ask the child to give an example of someone telling a lie.” Harrington v. State, 755 N.E .2d 1176, 1181 (Ind.Ct.App.2001). “The determination as to a witness's competency lies within the sound discretion of the trial court and is reviewab......
-
McDonald v. State
...and a trial court's determination that a child is competent will only be reversed for an abuse of discretion.” Harrington v. State, 755 N.E.2d 1176, 1181 (Ind.Ct.App.2001). “Errors in the admission or exclusion of evidence are to be disregarded as harmless error unless they affect the subst......