Hunter v. State, 1--976A168

• Decision Date: 03 March 1977
• Docket Number: No. 1--976A168,1--976A168
• Citation: 172 Ind.App. 397,360 N.E.2d 588
• Parties: Frederick HUNTER and Anna Hunter, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 588

360 N.E.2d 588

172 Ind.App. 397

Frederick HUNTER and Anna Hunter, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--976A168.

Court of Appeals of Indiana, First District.

March 3, 1977.

Rehearing Denied April 7, 1977.

Transfer Denied June 10, 1977.

John D. Clouse, Evansville, for appellants.

Theodore L. Sendak, Atty. Gen., David T. O'Malia, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendants-appellants, Frederick and Anna Hunter, bring this appeal following their conviction on three counts of Cruelty to a Child. ¹

The facts most favorable to the judgment indicate that a four count information was filed against both Frederick and Anna Hunter. The first three counts alleged acts of cruelty to a child. The fourth count alleged conspiracy to commit a felony. The trial to a jury resulted in a conviction on the three counts of cruelty to a child. The court granted the defendants' motion for judgment on the evidence as to the conspiracy count.

The evidence at trial indicates the child, David Lee Hunter, was the adopted son of the defendants. The Hunters asserted that the five year old boy suffered from epilepsy and the seizures resulted in falls causing bruises to David's body. The medical testimony revealed no indications of epilepsy in the boy.

In April of 1974, the initial complaint of child abuse was registered against the Hunters. The matter was investigated by officer Jane Dassel of the Evansville Police Department. Dassel observed and photographed numerous bruises on the boy's body. David told Dassel that his father had spanked him with a belt for being 'mean'. Officer Dassel referred the case to the Welfare Department.

Shortly thereafter a neighbor began baby-sitting for David. The neighbor and another friend testified that David always had new bruises on his body and never experienced any seizures in their presence.

A second complaint was lodged with the police in August of 1974. This incident was investigated and neighbors recounted several incidents of child abuse. Among the incidents were kicking, throwing hot water in the boy's face, whipping with a frying pan and leaving the boy on the porch all night.

In September, David started school and his teachers quickly noticed excessive absences. When he returned he would be bruised on the face and would be wearing a long-sleeved turtleneck sweater despite the extremely hot weather. The teachers continued to observe bruises on David and after two months informed the police who again investigated.

Following an examination and photos, David was turned over to the Welfare Department and he was taken into emergency custody.

At trial Anna's natural son by a prior marriage (Frederick Sr.'s adopted son) testified that he had beaten David and that he was responsible for David's bruises. Testimony was given by a neighbor which clearly impeached the testimony of Frederick Hunter, Jr.

The jury found the Hunters guilty on three counts of cruelty to a child and they were sentenced to one to five years imprisonment on each count.

The Hunters present for our review 16 alleged errors:

(1) Must the State submit written voir dire questions in compliance with a court order?

(2) Is IC 1971, 34--14--1--4 (Burns Code Ed.) unconstitutionally vague?

(3) Were the defendants placed in jeopardy twice for the same acts?

(4) Were admissions of Anna Hunter erroneously allowed into evidence?

(5) May a seven year old testify? And if so, is there a parent-child privilege?

(6) Must the parents waive the physician-patient privilege before the physician can testify?

(7) Should the State's witness have been allowed to relate information obtained from a minor child?

(8) Was a witness' statement, which is false on its face, prejudicial when admitted into evidence?

(9) Was evidence of admissions by deputy prosecutors wrongfully excluded from evidence?

(10) Was exclusion of testimony refuting the charges reversible error?

(11) Should testimony have been allowed which would bolster the credibility of a defense witness?

(12) Did the court err in allowing impeachment of a defense witness and subsequently admonishing the jury?

(13) Was prejudicial hearsay allowed into evidence?

(14) Were the trial courts admonitions to the jury reversible error?

(15) Were any of five alleged errors in instructing the jury prejudicial?

(16) Was the verdict supported by insufficient evidence in light of judicial confessions by third parties?

I.

The Hunters' first allegation of error charges that they were denied equal protection of the law when the State was permitted to conduct oral voir dire. The court had issued an order which required submission of written questions 24 hours prior to trial. The State failed to comply with this order but was permitted to conduct oral voir dire after the court had completed its questioning. The defendants complied with the order.

In Indiana, the trial court is granted wide discretion in conducting voir dire examinations. Tewell v. State (1976), Ind., 339 N.E.2d 792; White v. State (1975), Ind., 330 N.E.2d 84. This court will not review the discretion of the trial court in conducting voir dire absent a clear showing of abuse of discretion. Roby v. State (1938), 215 Ind. 55, 17 N.E.2d 800.

In the case at bar we find no abuse of the trial court's discretion. The order of the court specifically stated that the parties would have an opportunity to supplement the court's examination. The parties were not required to submit questions to the court. The parties could do so if they wished, and thus preserve a greater portion of their allotted oral voir dire time.

The recent case of Cissna v. State (1976), Ind.App., 352 N.E.2d 793 (transfer denied December, 1976) succinctly stated the law in regard to voir dire and judicial discretion:

'The purpose of voir dire is to determine whether a prospective juror is able to deliberate fairly on the issue of guilt, Lamb v. State (1976), Ind., 348 N.E.2d 1, and a trial judge has wide discretion in conducting voir dire. White v. State (1975), Ind., 330 N.E.2d 84. When an act has been committed to the trial court's discretion, it will be reversed only upon a showing of a manifest abuse of such discretion and a denial to the complaining party of a fair trial. Muehlman v. Keilman (1971), 257 Ind. 100, 272 N.E.2d 591.'

In the case at bar we find no abuse of discretion. The defendant has been unable to demonstrate how he was prejudiced or denied a fair trial by the voir dire procedure. Absent a showing of prejudice, this court will not reverse a discretionary decision of the trial court. Cissna, supra.

II.

The Hunters' second allegation of error contends that the child abuse statute under which they were convicted is unconstitutionally vague. When the constitutionality of a statute is challenged, this court will apply the standard of review stated by the recent Indiana Supreme Court case of Sidle v. Majors (1976), Ind., 341 N.E.2d 763, where it is stated:

'Therefore, every statute stands before us clothed with the presumption of constitutionality, and such presumption continues until clearly overcome by a showing to the contrary.

'In the deliberative process, the burden is upon the challenger to overcome such presumption, and all doubts are resolved against his charge.'

When the basis of the constitutional challenge is vagueness of the statute we must apply the test of specificity provided by Platt v. State (1976), Ind.App., 341 N.E.2d 219:

'A statute will not be found unconstitutionally vague if individuals of ordinary intelligence would comprehend it to adequately inform them of the conduct to be proscribed. Sumpter v. State (1974), 261 Ind. 471, 306 N.E.2d 95; Stanley v. State (1969), 252 Ind. 37, 245 N.E.2d 149.'

In light of the above we feel that the defendants have not met their burden of demonstrating that individuals of ordinary intelligence could not ascertain the proscribed conduct from a reading of the pertinent portions of the questioned statute:

'Cruelty to a child shall consist in any of the following acts: (a) inflicting unnecessarily severe corporal punishment upon a child; (b) inflicting upon a child unnecessary suffering or pain, either mental or physical; (c) habitually tormenting, vexing or afflicting a child; (d) any wilful act or omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child; (e) or exposing a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of such child.'

IC 1971, 35--14--1--2 (Burns Code Ed.).

We believe that the above quoted statute contains sufficient specificity for men of ordinary intelligence to be able to determine the proscribed conduct. A fact question will be presented as to whether or not any particular conduct will be in violation of the statute. In the case at bar the jury found that the conduct was unnecessarily severe and harmful to the child. Men of ordinary intelligence and experience are capable of judging if hitting a child with a frying pan is 'unnecessarily severe corporal punishment.' Likewise, violence sufficient to produce severe bruises is enough to allow an ordinary man to test the 'unnecessary' nature of the punishment inflicted. The statute need only inform the individual of the generally proscribed conduct, it need not list with itemized exactitude each item of conduct prohibited.

In light of the above standards and discussion, we hold IC 1971, 35--14--1--2 to have sufficient specificity to withstand a constitutional challenge.

III.

Hunters' third allegation of error charges that jeopardy attached when they were brought before a juvenile referee and David was removed from their custody. It is the Hunters' contention that the subsequent trial, for cruelty to a child, twice placed them in jeopardy for the same acts and thus...