Kindred v. State

• Decision Date: 12 September 2012
• Docket Number: No. 28A01–1202–PC–50.,28A01–1202–PC–50.
• Parties: Jerry L. KINDRED, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

973 N.E.2d 1245

Jerry L. KINDRED, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 28A01–1202–PC–50.

Court of Appeals of Indiana.

Sept. 12, 2012.

F. Thomas Schornhorst, Oxford, MS, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

This case involves an allegation of sexual molestation for which there was no evidence other than a child's testimony. In 2010, Jerry L. Kindred was convicted of one count of Class A felony child molesting. He was sentenced to thirty-five years in prison, with five years suspended to probation. Kindred filed an appeal but later sought a stay of that appeal to pursue post-conviction relief, alleging ineffective assistance of counsel. Kindred now appeals the denial of his request for post-conviction relief and reinstates his direct appeal utilizing the Davis–Hatton procedure.¹

Kindred raises several direct appeal and post-conviction claims, one of which we find dispositive of his appeal. Accordingly, we address only that issue, which is: did the admission of certain evidence, including hearsay and vouching testimony, deny Kindred a fair trial and therefore constitute fundamental error? We reverse and remand.

Facts and Procedural History

Kindred met Barbara Grissom in 2001. Barbara is the biological grandmother and adoptive mother of A.G. Barbara's ex-husband, David, was A.G.'s step-grandfather and is her adoptive father. Barbara and David were divorced in 2002, and Kindred and Barbara began living together shortly thereafter. Barbara and David later attempted to reconcile, which ended badly, and A.G. struggled with this. As a result, the relationship between Barbara and her family was strained. Kindred's relationship with Barbara's family was similarly rocky.

After Barbara and David's divorce, A.G. lived primarily with David, but she had weekly visits with Barbara. In the summer of 2008, nine-year-old A.G. spent six consecutive weeks with Barbara. During that time, A.G. shared a bed with Barbara and sixty-four-year-old Kindred because she was scared to sleep alone. Barbara would sleep in the middle of the bed, with A.G. on one side and Kindred on the other. Barbara often woke up around 3:30 in the morning to prepare for her shift at a local restaurant that began at 4:30. Before getting ready, Barbara would wrap A.G. in blankets and put a blanket in between the still-sleeping A.G. and Kindred to keep A.G. from rolling in her sleep. Once Barbara was dressed, she would wake A.G. and drive her to the babysitter's house before going to work.

In late June, when the visit ended, A.G.'s biological mother, Christy, picked A.G. up from Barbara and Kindred's house. While Christy and A.G. were in the car, A.G. asked Christy if Barbara would live with David again if Barbara had nowhere else to live. Christy asked A.G. why she had asked such a question. A.G. told Christy that when she and Kindred were alone in bed together, Kindred put his hands down her panties. Christy told David that A.G. had been molested. They contacted law enforcement and said that A.G. had accused Kindred of touching her.

Don Fish, a caseworker for Greene County Child Protective Services (CPS), and Julie Martin, a sex-crimes investigator employed by the Greene County Prosecutor's Office, conducted forensic interviews of A.G. A.G. told Fish and Martin that Kindred had put his finger in her vagina more than once.² Fish and Martin also interviewed Kindred, who admitted that he slept in the same bed as A.G., sometimes without Barbara. However, he denied ever touching A.G. in a sexual manner, although Fish and Martin testified at trial that he nodded his head affirmatively while making this verbal denial. Kindred's interview was recorded on audio. In January 2009, the State charged Kindred with two counts of Class A felony child molesting. Count I alleged that Kindred molested A.G. in May 2008. Count II alleged that Kindred molested A.G. in June 2008.

Before trial, the State sought to preclude Kindred's planned impeachment of A.G. with a past false accusation of molestation. Specifically, Kindred sought to introduce evidence that, when A.G. was three or four years old, she accused one of Christy's boyfriends of putting his finger in her vagina. In a pretrial deposition, A.G. denied making the accusation. Christy and Barbara, however, testified that A.G. made the allegation and later recanted it. The trial court ruled that there was sufficient evidence of a demonstratively false accusation under State v. Walton and allowed the impeachment.³

Kindred was represented at trial by Ronald Chapman (“trial counsel”). The State's first witness was Martin, the prosecutor's sex-crimes investigator. Martin described her role in determining whether charges were filed when a sex crime was alleged:

Q Suppose you have an incident where the victim has accused someone of molesting [him or her], do you always file charges automatically?

A No.

Q Why not?

A We need some kind of [corroboration,] either DNA evidence, medical evidence [,] or possibly a confession by the suspect.

Q Are there times when you don't file charges?

A Yes.

Q Do you often have times when people are upset with you for those decisions probably don't you [sic]?

A Extremely upset, I have been told I am not doing my job—

Tr. p. 350. At that point, trial counsel objected on relevancy grounds. Id. at 351. The objection was overruled. The State circled back to the issue:

Q So on a daily basis you require some evidence other than child molest victim's accusations before filing charges?

A Yes.

Id.

Martin went on to testify that in this case, she decided to file charges after speaking with A.G. on three occasions. Id. at 356. When asked what she had learned over the course of her investigation, Martin replied, “We learned that [A.G.] had been molested by ... Jerry Kindred.” Id. at 358. Martin said that “A.G. told us that Jerry Kindred had put his finger in her vagina on more than one occasion.” Id. at 363. Martin also testified that no medical examination of A.G. was conducted because “A.G. said that the last time it had happened was a couple of weeks prior to her telling[,] which was on June 21,” and because the alleged molestation had occurred approximately two weeks earlier, “they wouldn't find anything anyway[,] the vagina heals very quickly.” Id. at 365. Martin also testified about her interview with Kindred. Martin said that Kindred denied the allegations but “[corroborated] everything [A.G.] had told us other than the touching.” Id. at 381.

When asked specifically about A.G., Martin testified that A.G.'s “story has been consistent with the allegations every time that I have talked to her.” Id. at 382. She also described A.G.'s demeanor as “never chang[ing] from the first time I talked to her,” and said that “[A.G.] has never been emotional with me, she [is] just matter-of-fact and to the point.” Id. at 356.

When A.G. took the stand, the prosecutor asked, “Why are you here?” A.G. responded: “Because Jerry Kindred sexually abused me.” Id. at 402. When the prosecutor remarked that A.G. had used “a pretty big word for a fifth grader,” A.G. replied, “Well I know it is not specific to say just abuse, or know [sic] that he sexually abused me so I put that word there.” Id. A.G. denied that anyone had told her to use the terms “sexual abuse.” Id.

A.G. said that when she stayed with Barbara, Jerry touched her vagina, “sometimes rough and sometimes gentle.” Id. at 415. When asked how long Kindred would “keep his finger in there,” A.G. responded, “I don't know, 15 or 10 minutes maybe.” Id. at 418. A.G. testified that she did not call for Barbara because she was too scared and because she “[thought] there was a gun in the room.” ⁴Id. When the prosecutor asked A.G. what led her to tell Christy about the molestation, A.G. responded:

A Well I kind of had to, I was making plans to see if [Barbara] would live with [David] after it happened, I can't remember, but I think [Barbara], I might have asked her and she might have said yes and when I asked [Christy] if she would think [David] would and she asked why and I had to tell her.

Q Why did you think this had anything to do [with] where [Barbara] was going to live?

A Well I thought she would be upset with him, with Jerry[,] after she found out what happened.

Id. at 420.

CPS caseworker Fish also testified about the investigation. Fish elaborated on Martin's response about seeking medical treatment for A.G.: “I attended a training session ... and during that training [it was] explained to us that most evidence is gone within 72 hours, [so] there is no need to do the examination.” Id. at 433–34. Fish also relayed A.G.'s statement—initially made to Christy, who told David, who reported it to Fish—that “she had been touched.” Id. at 438–39. Similarly, Fish testified that Christy had informed him that A.G. “had indicated that she had been touched.” Id. at 439. Fish also testified about A.G.'s demeanor, describing A.G. as “matter-of-fact.” Id. at 440, 449. He also said that A.G.'s demeanor before and after talking to the investigators was the same. When asked by the State if A.G. had indicated specifically that Kindred touched her on June 21, 2008, Fish said, “She indicated that she had been in Worthington, had been in a bed with Jerry Kindred and that he had reached over and had placed his finger inside her vagina.” Id. at 448.

The State then sought to introduce into evidence the audio recording of Kindred's interview with Fish and Martin. Without objection from Kindred's trial counsel, the entire forty-minute recording was admitted into evidence and played for the jury. Id. at 460. An un-redacted thirty-one-page transcript of the recording was also given to each juror. No limiting instruction was given to the jury regarding the recording. During the interview, Fish made many...