Kelly v. State, 582S199

• Decision Date: 29 August 1983
• Docket Number: No. 582S199,582S199
• Citation: 452 N.E.2d 907
• Parties: James L. KELLY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 907

452 N.E.2d 907

James L. KELLY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 582S199.

Supreme Court of Indiana.

Aug. 29, 1983.

Marcus C. Emery, Steers, Sullivan, McNamar & Rogers, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, James L. Kelly, was convicted by a jury in a consolidated trial of two counts of child molesting, one Class A felony and one Class C felony, Ind.Code Sec. 35-42-4-3 (Burns 1979 Repl.), two counts of incest, Class D felonies, Ind.Code Sec. 35-46-1-3(a) (Burns 1979 Repl.), and two counts of being an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1979 Repl.). On one cause number, defendant was sentenced to concurrent terms of fifty and four years plus an additional consecutive term of thirty years. On the second cause number, he was sentenced to concurrent terms of eight and four years plus an additional consecutive term of thirty years. The latter thirty year term was subsequently vacated by the trial court in its ruling on defendant's belated motion to correct errors. Defendant now raises the following five issues for our review:

1. Whether the trial court erred in granting the state's motion in limine based upon the rape shield statute;

2. Whether defendant was denied effective assistance of counsel;

3. Whether the evidence was sufficient to sustain the verdicts;

4. Whether the trial court erred in failing to set forth reasons for imposing maximum sentences; and

5. Whether the trial court erred in sentencing defendant on the habitual offender count.

A brief summary of the facts from the record most favorable to the state shows that on December 28, 1979, defendant and his fifteen year old daughter were returning from a shopping trip when defendant pulled his van off of the road and said to his daughter, "Can I eat you?" The daughter said "No" and started to cry. Defendant did not assault his daughter at that time but talked to her and then drove her back to his girlfriend's house. Later that day defendant drove his daughter to her mom's home, but on the way there pulled the van off of the road. His daughter asked what he was doing and he said, "You're going to hate me for this." His daughter saw he had a pocket knife approximately five inches long and she started to cry. Defendant said, "You don't want me to force you" and she said "no." She went to the back of the van and defendant had intercourse and oral sex with her against her will. Defendant had previously sexually molested her since she was in the sixth grade.

The second incident occurred on the morning of January 4, 1980, when defendant entered the bedroom of another daughter. The girl testified that she woke up between 5:30 and 7:30 a.m. and saw defendant kneeling by her bed with only a tee shirt on. He asked if he could scratch her back. She replied that he could if he did not go farther. He started to rub her back and then forced her to roll over onto her back and raped her. Defendant had previously sexually molested this daughter starting when she was in the third or fourth grade.

I.

Defendant first contends that the trial court erred in granting the state's motion in limine which requested the court to prohibit any mention of, or references to, the victims' past sexual conduct in accordance with the rape shield statute, Ind.Code Sec. 35-1-32.5-1 (Burns 1979 Repl.). He argues that he has professed his innocence on all the charges and that the victims and their mother pressed charges against him because he had threatened actions against them for delinquency and neglect. He asserts that his daughters were using drugs and alcohol, running away from home, were sexually promiscuous and lived in a deplorable environment. His tendered exhibit No. 2 was a letter from one daughter describing the living conditions in her mother's home and the use of alcohol and sexual promiscuity of both daughters. He argues that this letter would have supported his allegation that the victims only testified out of fear that he would report them to juvenile authorities for their conduct and living conditions. He argues that since his defense was based upon the bias and ulterior motives of the witnesses, he needed to have the right to the full confrontation and cross-examination of them.

This Court has clearly held that Indiana's Rape Shield Statute does not violate a defendant's Sixth Amendment right to confront witnesses absent a showing of actual impingement on cross-examination. Moore v. State, (1979) 271 Ind. 464, 393 N.E.2d 175; Lagenour v. State, (1978) 268 Ind. 441, 376 N.E.2d 475; Roberts v. State, (1978) 268 Ind. 127, 373 N.E.2d 1103. In this case, defendant was allowed to question the witnesses regarding acts of delinquency other than sexual conduct, such as alcohol abuse, drug abuse, and running away from home. He also presented evidence concerning the living conditions and conduct of the girls. It is clear that defendant was not prohibited from impeaching the credibility of the witnesses by means other than their prior sexual conduct.

The purpose of the Rape Shield Statute is to "shield victims of sex crimes from a general inquiry into a history of their sexual conduct" and to keep these victims from feeling that they are on trial. West's Ann.Ind.Code Sec. 35-1-32.5-1 (1978) (Commentary, p. 708); Lewis v. State, (1983) Ind., 451 N.E.2d 50; Moore v. State, 271 Ind. at 468, 393 N.E.2d at 178. That purpose has been served in this case and the trial court properly invoked the Rape Shield Statute.

II.

Defendant next alleges that he was denied effective assistance of counsel due to several acts and failures to act by his counsel which allegedly reduced his trial to a mockery of justice. ¹ He points out that when he appeared for trial on January 5, 1981, his counsel had failed to subpoena certain witnesses and this resulted in a continuance. Later, when the trial was convened on January 19, his counsel spent only fifteen minutes, during the trial, interviewing the witnesses who were present. Some of defendant's witnesses who were present were not called to testify and some witnesses were not subpoenaed. One witness was not well-prepared and could not recall some important events. Defendant also alleges his counsel failed to obtain available evidence critical to the habitual offender proceedings, failed to adequately consult with him, failed to request psychiatric examination of the victims, failed to adequately cross-examine one of the victims, and failed to subpoena other critical records regarding counseling the victims had received. He finally alleges that his counsel referred to him in front of the jury as an alcoholic and a poor parent.

Regarding competency of counsel, it has been more than frequently stated by this Court that there is a presumption that counsel is competent and that strong and convincing evidence is required to rebut the presumption. Lindley v. State, (1981) Ind. 426 N.E.2d 398; Rinard v. State, (1979) 271 Ind. 588, 394 N.E.2d 160; Jones v. State, (1978) 270 Ind. 141, 387 N.E.2d 440. Incompetency of counsel revolves around the particular facts of each case; the standard of review on this issue is the mockery of justice test as modified by the adequate legal representation standard. Crisp v. State, (1979) 271 Ind. 534, 394 N.E.2d 115; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984. This Court will not speculate as to what may have been the most advantageous strategy in a particular case. Isolated poor strategy, bad tactics, or even inexperience do not necessarily amount to ineffective counsel. Hollon v. State, (1980) Ind., 398 N.E.2d 1273; Smith v. State, (1979) Ind., 396 N.E.2d 898.

First, we note that the record shows that defendant had consulted with his counsel and informed him of his witnesses and how those witnesses would be able to assist in the defense. Most of these witnesses were character witnesses and the choice of witnesses for trial is a matter of trial strategy. Several character witnesses did testify for defendant and he has not shown how the failure to call additional character witnesses or to subpoena other witnesses would have prejudiced him. He has also not shown that the continuance at the start of the trial prejudiced him in any way. In fact, the record shows that the continuance was granted because the state's attorney was ill while defendant's attorney was ready to proceed at that time.

Defendant also alleges that his counsel was ineffective because he did not interview the defense witnesses before the trial but waited until trial to confer with them. It is clear that failure to conduct discovery is a tactical matter and does not necessarily establish ineffective representation. Rodgers v. State, (1981) Ind., 415 N.E.2d 57; Leaver v. State, (1981) Ind., 414 N.E.2d 959. Furthermore, defendant had informed counsel of his witnesses and of how they would be of aid, and counsel had been provided with the state's discovery, so it would not have been necessary for him to interview all of the witnesses before trial. The faulty memory of one witness cannot be attributed to incompetency of counsel as an attorney cannot suggest answers to a witness in preparing for trial.

Another complaint by defendant is that his counsel failed to request a psychiatric examination of the victims. This Court has held that a defendant has no right, in a sex offense case, to subject the victim to a psychiatric examination. Page v. State, (1980) Ind., 410 N.E.2d 1304. Defendant also argues that his counsel should have subpoenaed certain records of the Midtown Mental Center where his daughters had gone for counseling. These records would not likely have been discoverable due to the doctor-patient privilege and there can be no ineffective assistance from a failure to do futile acts.

Other allegations of incompetence involve matters of...