Haycraft v. State
| Decision Date | 28 December 2001 |
| Docket Number | No. 31A01-0103-CR-101.,31A01-0103-CR-101. |
| Citation | 760 N.E.2d 203 |
| Parties | Farrell HAYCRAFT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Matthew Jon McGovern, Louisville, KY, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Farrell Haycraft ("Haycraft") appeals his convictions and 190 year sentence for four counts of child molesting1 as Class A felonies, one count of child molesting2 as a Class C felony, two counts of obscenity before a minor,3 Class D felonies, and one count of contributing to the delinquency of a minor4 as a Class A misdemeanor. We affirm his convictions and remand with instructions to revise his sentence to 150 years.
Haycraft raises five issues for our review, which we restate as follows:
I. whether the prosecutor committed misconduct;
II. whether the trial court properly admitted the testimony of a child witness;
III. whether the trial court properly admitted the testimony of an investigating officer;
IV. whether Haycraft received ineffective assistance of counsel; and
V. whether his 190 year sentence is manifestly unreasonable.
The relevant facts most favorable to the convictions reveal that during the summer of 2000, twelve-year-old A.M. and his eight-year-old brother, W.M., stayed with Haycraft, their forty-nine year-old grandfather, for extended periods of time. Haycraft lived with his life partner, Bob Sutton ("Sutton"), in Harrison County, Indiana. During the course of the summer, Haycraft inserted his penis and finger in A.M.'s anus, performed oral sex on A.M. and required A.M. to perform oral sex on him, furnished A.M. with alcoholic beverages and allowed A.M. to drive his truck, showed A.M. pornographic movies, and engaged in oral sex with Sutton in front of A.M. and W.M., who was often present during the abuse.
A.M.'s grandmother, Haycraft's ex-wife, suspected that Haycraft was abusing A.M. and reported her suspicions to her daughter, A.M.'s mother. A.M.'s mother contacted Detective Charley Scarber ("Scarber") of the Indiana State Police, and the State filed charges against Haycraft on August 25, 2000. On August 28, 2000, Scarber interviewed Haycraft and obtained a taped confession from him. On January 19, 2001, a jury found Haycraft guilty as charged, and the trial court subsequently sentenced him to 190 years' imprisonment.
Haycraft argues that the State violated his Fifth Amendment right against self-incrimination. In her closing argument, the prosecutor stated:
You've got [W.M.], and [A.M.], and more importantly, if you don't believe these two children because somehow they're less credible, then we have him (indicating). He tells you—He tells you that they did that as well in his confession.....—So, if you don't believe [A.M.], then do you believe [A.M.] and [W.M.]? And if you don't believe them, how about him (indicating)? He told you it happened at least three times in his confession. So, you've got three people, nothing to controvert, no evidence to controvert those three people.
Generally, when a prosecutor makes a statement that the jury could reasonably interpret as an invitation to draw an adverse inference from the defendant's silence, the defendant's Fifth Amendment privilege against compulsory self-incrimination is violated. Taylor v. State, 677 N.E.2d 56, 60 (Ind.Ct.App.1997), trans. denied. If in its totality, however, the prosecutor's comment addresses evidence other than the defendant's failure to testify, we will not reverse. See id. "When the challenged language is not a direct comment on the defendant's failure to testify, we must decide whether the comment amounts to a summary of the evidence, rather than an attempt to comment on the defendant's silence." Id. Further, we have held that comments referring to the uncontradicted nature of the State's case do not violate defendants' Fifth Amendment rights. Id. However, the State may not "comment on the uncontradicted nature of [its] case .... where the defendant alone could have contradicted the government's case ...." Rowley v. State, 259 Ind. 209, 213, 285 N.E.2d 646, 648 (1972).5
Haycraft erroneously argues that only his testimony that he gave a false confession could have contradicted his confession. Our focus is not on whether Haycraft alone could have contradicted his confession, but whether he alone could have contradicted the government's case. See id. The facts indicate that both W.M. and Sutton were often present during the abuse, thereby making it possible for someone other than Haycraft to have contradicted the State's case. Finally, since the comment does not directly refer to Haycraft's failure to testify, we must determine whether it amounts to a summary of the evidence or an impermissible reference to Haycraft's silence. In its totality, the prosecutor referred to A.M.'s and W.M.'s testimony and to Haycraft's taped confession, which the State admitted into evidence. Thus, the comment summarized the evidence as a whole and did not constitute misconduct.
Haycraft argues that the State failed to establish that W.M. was competent to testify against him. However, Haycraft failed to object to W.M.'s competency after the State called W.M. to testify.6 "`Timely objection should be made to any improprieties that may occur during the course of a trial so that the trial judge may be informed and may take effective action to remedy the error or grievance complained of.'" Kochersperger v. State, 725 N.E.2d 918, 922 (Ind.Ct.App.2000) (citations omitted). "A defendant's failure to object to a child's testimony acts as a waiver of any question of the competency of the child as a witness." Id. Thus, Haycraft's failure to offer a timely objection waives our review of this issue.
Waiver notwithstanding, the trial court has the discretion to determine if a child witness is competent based on the judge's observation of the child's demeanor and responses to questions posed by counsel and the court. Newsome v. State, 686 N.E.2d 868, 873 (Ind.Ct.App. 1997). We require trial courts to establish that child witnesses are competent to testify by demonstrating that they (1) understand the difference between telling a lie and telling the truth, (2) know they are under a compulsion to tell the truth, and (3) know what a true statement actually is. Id.
Haycraft argues that the State did not establish that W.M. knew the difference between the truth and a lie because he was only able to articulate an example of the truth. However, this colloquy between the prosecutor and W.M. indicates otherwise:
While Haycraft correctly asserts that it is insufficient for W.M. to indicate that he would be punished for telling a lie, such information is valuable in determining whether a child understood the difference between the truth and a lie. See id. As such, this dialog reveals that W.M. understood the difference between the truth and a lie, that he knew that he was compelled to tell the truth, and that he knew what a true statement actually was.
Haycraft contends that the trial court abused its discretion in permitting Scarber to testify because he was not qualified as an expert witness under Indiana Evidence Rule 702; because the State did not establish that the "grooming" technique was a reliable scientific theory under Indiana Evidence Rule 702; because Scarber testified to a legal conclusion in contravention of Indiana Evidence Rule 704; and because Scarber's profile testimony violated Indiana Evidence Rule 403. Despite Haycraft's numerous objections to relevancy under Indiana Evidence Rule 402, lay witness opinion testimony under Indiana Evidence Rule 701, and the foundational requirements of expert witness testimony under Indiana Evidence Rules 702 and 703, the trial court admitted Scarber to testify as a lay witness under Indiana Evidence Rule 701.
"We review issues concerning the admissibility of evidence for an abuse of discretion." O'Neal v. State, 716 N.E.2d 82, 88 (Ind.Ct.App.1999), trans. denied (2000). We will only reverse if the error is inconsistent with substantial justice. Id. at 89.
Haycraft argues that the trial court abused its discretion in allowing Scarber to offer expert testimony as to the "grooming" techniques of child molesters. Scarber testified that in his experience child molesters groom their victims to prepare them for sex by gradually introducing them to sexually explicit materials and sexual contact before actually engaging in sex with them.
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