Kochersperger v. State

• Decision Date: 24 March 2000
• Docket Number: No. 10A01-9902-CR-53.,10A01-9902-CR-53.
• Citation: 725 N.E.2d 918
• Parties: Michael Lee KOCHERSPERGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

725 N.E.2d 918

Michael Lee KOCHERSPERGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 10A01-9902-CR-53.

Court of Appeals of Indiana.

March 24, 2000.

Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge.

Case Summary

Appellant-defendant Michael Lee Kochersperger ("Kochersperger") appeals from his convictions for one count of child molesting/deviate sexual conduct,¹ a Class B felony, and one count of child molesting/fondling,² a Class C felony.

We affirm in part and remand in part for further proceedings.

Issues

Kochersperger presents the following issues for our review:

(1) whether the trial court erred when it determined that the seven-year-old victim was competent to testify at trial;

(2) whether the trial court erred when it denied his motion to suppress evidence obtained through a polygraph examination and post-testing interrogation; and

(3) whether his convictions for child molesting/deviate sexual conduct and child molesting/fondling are barred by the constitutional protections against double jeopardy.

Facts and Procedural History

Kochersperger lived with his wife, Rebecca Kochersperger ("Rebecca"), and their two daughters, T.K. and A.K.,³ in Jeffersonville, Indiana. Kochersperger stayed at home with T.K. and A.K. during the day while Rebecca worked. In early 1996, Kochersperger made T.K. touch his penis with her hand while they were in an upstairs room; during this same incident he also made T.K. lick and suck his penis. T.K. subsequently told her mother that she had a "secret" Kochersperger would not allow her to reveal. When T.K. ultimately disclosed the secret to her mother, Rebecca notified Child Protective Services ("CPS").

On March 24, 1997, a CPS caseworker interviewed T.K. regarding the incident. Finding T.K.'s statement to be credible, the caseworker forwarded the information on to Detective Charles Thompson ("Detective Thompson") of the Jeffersonville Police Department. Following a brief telephone conversation, Kochersperger agreed to meet with Detective Thompson at his office on April 11, 1997. During their meeting, Detective Thompson did not place Kochersperger under arrest. However, he did review with Kochersperger an advice of rights form containing Miranda⁴ warnings and including an advisement of his right to counsel. Kochersperger read and signed the advice of rights form. The meeting culminated in Kochersperger signing an agreement with the prosecutor to undergo a polygraph examination; the agreement stipulated that the results of the examination would be admissible in any subsequent trial. A test date was set for May 6, 1997, and Kochersperger appeared to take the polygraph examination as agreed.

Officer Gary Hall ("Officer Hall"), a polygraph operator with the Clarksville Police Department, conducted the examination. Immediately prior to administering the examination, Officer Hall asked Kochersperger whether he recalled reading and signing the stipulation on April 11, 1997; Kochersperger responded that he did. Nevertheless, Officer Hall reviewed the document with Kochersperger, along with a certificate of understanding regarding polygraph examinations, which Kochersperger also signed.

Thereafter, Officer Hall conducted three separate polygraph examinations and concluded that Kochersperger had been untruthful during all three of them. When Officer Hall confronted Kochersperger with the results during a post-testing interrogation, Kochersperger admitted that T.K. had touched his penis and that his penis had been in her mouth.⁵

The State charged Kochersperger in relevant part as follows:⁶

COUNT I

Between January 1996 and June 30, 1996, [Kochersperger] did submit to deviate sexual conduct by having [T.K.], a child under fourteen (14) years of age, place her mouth on his penis....

COUNT III

Between January 1996 and June 30, 1996, [Kochersperger] did submit to any fondling or touching by [T.K.], a child under fourteen (14) years of age, with intent to arouse or to satisfy the sexual desires of either [T.K.] or [Kochersperger].

Prior to trial, Kochersperger moved to suppress the evidence obtained through his polygraph examination and post-testing interrogation; the trial court denied his motion. A jury trial was conducted on December 15 and 16, 1998, after which the jury found Kochersperger guilty on Counts I and III. The trial court "merged" Kochersperger's conviction under Count III with his conviction under Count I and imposed an enhanced sentence of fifteen years on Count I only, with five years thereof suspended.

Discussion and Decision

I. Competency of T.K. to Testify at Trial

Kochersperger first asserts that the trial court should not have permitted T.K., who was seven years old at the time of trial, to testify. He specifically challenges T.K.'s competency to testify and argues that her responses to questions posed during a previous competency hearing did not provide the trial court with sufficient basis to infer that she "understood the differences between telling a lie and telling the truth or knew she was under a compulsion to tell the truth."

Kochersperger has waived consideration of this issue on appeal because he offered no objection to the trial court's ruling at the conclusion of the competency hearing and likewise failed to offer any objection when T.K. was called as a witness at trial. "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." Jackson v. State, 485 N.E.2d 144, 145 (Ind.Ct.App.1985) (quoting Morgan v. State, 243 Ind. 315, 320-21, 185 N.E.2d 15, 17-18 (1962)), trans. denied. 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. Jackson, 485 N.E.2d at 145 (child molesting case).

II. Admissibility of Polygraph Examination and Post-testing Interrogation

Kochersperger next challenges the trial court's denial of his motion to suppress evidence obtained through the polygraph examination and post-testing interrogation. In particular, he makes two contentions: (1) that his Sixth Amendment right to counsel was violated because he was not represented at the time the examination was administered and the interrogation was conducted; and (2) that his decision to sign the polygraph stipulation was based on misrepresentations and improper inducement by police.

A. Right to Counsel

It is well settled in Indiana that absent a proper waiver or stipulation by the defendant and prosecuting attorney, the results of a polygraph examination are not competent evidence and are inadmissible in a criminal prosecution. Casada v. State, 544 N.E.2d 189, 198 (Ind.Ct.App. 1989). In Owens v. State, 176 Ind.App. 1, 3-4, 373 N.E.2d 913, 915 (1978), this court first adopted from the Arizona Supreme Court four prerequisites that must be met before the results of a polygraph examination can be admitted into evidence. See Arizona v. Valdez, 91 Ariz. 274, 371 P.2d 894, 900 (1962)

; see also Pavone v. State, 273 Ind. 162, 402 N.E.2d 976 (1980) (approving Owens decision). The first prerequisite, and the only one at issue here,⁷ is "that the [prosecuting] attorney, defendant and his counsel ... all sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's opinion thereon on behalf of either defendant or the state." See Owens, 176 Ind.App. at 3,

373 N.E.2d at 915 (quoting Valdez, 371 P.2d at 900) (emphasis added).

Kochersperger makes much of the fact that his stipulation was not signed by defense counsel because he had no representation at that time and argues that the first prerequisite set forth in Owens was therefore not met. However, Kochersperger was fully advised of his right to counsel prior to executing the stipulation on April 11, 1997, and waived such right by signing the advice of rights form provided by Detective Thompson. Kochersperger chose to sign the stipulation without counsel and does not contend on appeal that his waiver of the right to counsel was involuntarily or unknowingly made. See Taylor v. State, 409 N.E.2d 1246, 1249 (Ind.Ct.App. 1980)

(holding that defendant's lack of counsel prior to polygraph examination did not vitiate the effect of the stipulation; defendant was advised of right to counsel, chose to proceed without counsel, and did not contend that waiver of his right to counsel was involuntarily or unknowingly made). Thus, he cannot now complain that his right to have counsel present when he signed the stipulation was impinged upon, nor can he challenge the validity of the stipulation for lack of defense counsel's signature. See id. (holding that although an accused has a right to advice and assistance of counsel, he also has right to forego such representation); see also Owens, 176 Ind.App. at 3,

373 N.E.2d at 915 n. 2 (noting that "defendant's counsel would be required to sign the stipulation only when a defendant's right to counsel has already attached and where the defendant has not waived such right to counsel").⁸

Kochersperger further contends that his right to counsel under the Sixth Amendment was violated when the polygraph examination and post-testing interrogation were conducted without the presence of defense counsel. Specifically, he urges that such examinations and interrogations are "critical stages" of a criminal proceeding that necessarily trigger a defendant's Sixth Amendment right to counsel.

The Sixth Amendment provides that an accused has a right to counsel "at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate...