Koo v. State

• Decision Date: 22 September 1994
• Docket Number: No. 45A05-9301-CR-6,45A05-9301-CR-6
• Citation: 640 N.E.2d 95
• Parties: Young Soo KOO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 95

640 N.E.2d 95

Young Soo KOO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A05-9301-CR-6.

Court of Appeals of Indiana,

Fifth District.

Sept. 22, 1994.

Rehearing Denied Dec. 2, 1994.

Transfer Denied Feb. 28, 1995.

Joseph S. Van Bokkelen, Timothy G. Kline, Goodman Ball & Van Bokkelen Professional Corp., Highland, for appellant.

Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

RUCKER, Judge.

Young Soo Koo was convicted of rape as a Class B felony ¹ for which he received a twenty-year sentence. He now appeals raising eight issues for our review which we rephrase as follows:

1. Whether the judge pro tempore improperly presided over the trial of this case;

2. Whether the trial court erred in denying Koo's peremptory challenges of two female venirepersons on the basis of gender;

3. Whether the trial court erred by admitting evidence of Koo's prior, uncharged acts of sexual misconduct;

4. Whether the trial court erred by refusing to allow Koo to introduce testimony of the victim's discussions with her attorney regarding monetary settlement negotiations related to a civil suit as well as the criminal charge against Koo;

5. Whether the trial court erred by refusing to allow Koo to pursue additional discovery concerning whether the victim made allegations of rape against other persons;

6. Whether the trial court erred in denying Koo's motion to correct error based on newly discovered evidence;

7. Whether the trial court erred in denying Koo's motion for an order authorizing post-trial jury contact;

8. Whether Koo's twenty-year sentence was manifestly unreasonable.

We affirm.

The record reveals that the victim had been a patient of Dr. Young Soo Koo for more than eleven years and for several years had suffered from numerous gynecological disorders. On March 30, 1992, the victim visited Koo's office to determine the result of x-rays which had been taken at a hospital the previous day. The victim arrived at the office and walked into the examination room where she disrobed, placed a sheet around her waist and sat on the examining table. Koo entered the room, grabbed the victim's arm and gave her an injection. When the victim asked about the injection, Koo informed her that it was Valium. Koo then instructed the victim to position herself near the end of the table. He taped a corner of the sheet, which covered the victim's waist, to an overhead light. While her feet were placed in stirrups on the table, the victim felt something other than a speculum enter her vagina. She also felt Koo's body pressing back and forth against her, and Koo's hands on both sides of her legs. The victim then lifted the end of the sheet and saw Koo's penis pulling out of her and observed Koo zipping his pants. Koo was charged with rape and after a trial by jury was convicted as charged. This appeal ensued in due course. Additional facts are discussed below where relevant.

I.

Koo challenges the authority of the judge pro tempore to hear his case. First, Koo contends the judge pro tempore was not properly appointed in that his appointment did not specify the duration of his term. Because Koo supports this contention with neither cogent argument nor citation to authority, the issue is waived. Ind.Appellate Rule 8.3(A); State v. Denny (1980), Ind.App., 409 N.E.2d 652. Waiver notwithstanding Koo's argument is unavailing.

Indiana Trial Rule 63(E) states in relevant part A judge who is unable to attend and preside at his court for any cause may appoint in writing a judge pro tempore to conduct the business of this court during his absence. The written appointment shall be entered in the records of the court.

The rule does not require that the written appointment set forth the duration of the judge pro tempore's authority. Because the judge complied with the mandates of the rule, we find no irregularity in the appointment of the judge pro tempore.

Second, Koo complains that at some point during the two-week trial the regular judge returned thereby revoking whatever authority the judge pro tempore initially possessed. As Koo correctly points out a judge pro tempore may not act as a judge of the court in one room while the regular judge exercises jurisdiction in another room. Survance v. State (1984), Ind., 465 N.E.2d 1076.

In Boushehry v. State (1993), Ind.App., 626 N.E.2d 497 (opinion on rehearing), we determined that in order for us to have a valid final judgment to review, a judgment entered prior to July 1, 1993, must have been entered by either the regular judge, a properly appointed special judge, or a properly appointed judge pro tempore. If the judge pro tempore has not been properly appointed or does not have the authority to act because the regular judge is conducting business, then any judgment entered by that purported judge pro tempore cannot be a final judgment on appeal.

Thus, if the record here showed that the judge pro tempore did not have authority to act because the regular judge had returned and was conducting business, we would be compelled to dismiss this appeal. However, contrary to Koo's assertion the record here does not "unequivocally show[ ] that Judge Maroc returned during the time Magistrate Page continued to hear the cause as a Judge pro tempore." Brief of Appellant, pp. 17, 18. Indeed, other than remarks made by the magistrate that the regular judge would be returning and comments made by the magistrate during the course of trial about the necessity of having to look for another courtroom, the record here is silent on whether the regular judge actually returned or if he returned, whether he conducted court business. We find no error on this issue. ²

II.

Koo mounts a multi-prong attack challenging the trial court's denial of his peremptory challenges of two female venirepersons. His claim of error arises from the following facts. During jury selection the State alleged that Koo had demonstrated a pattern of gender-based peremptory challenges in striking six of eight prospective female jurors. At the time the State raised its challenge, Koo had moved to strike two female jurors, after having struck four women and then accepting two women on the panel. The trial court found gender-based discrimination and seated the two female jurors over Koo's objections.

First, Koo argues that gender-based peremptory challenges are not prohibited under Batson. ³ This claim of error must fail because since this case was briefed, the Supreme Court extended Batson to gender-based peremptory challenges. In J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89, the Court held that intentional discrimination on the basis of gender during jury selection violates the equal protection clause contained in the Fourteenth Amendment to the United States Constitution. The issue is now settled.

Koo also counters that even if gender-based peremptory challenges are prohibited, the court erred in finding that a prima facie case of gender discrimination had been made because he did not challenge all female venirepersons. See e.g., Sutton v. State (1990), Ind.App., 562 N.E.2d 1310, cert. denied, 502 U.S. 987, 112 S.Ct. 598, 116 L.Ed.2d 621 (use of peremptory challenges to exclude African Americans from a jury does not, by itself, raise an inference of purposeful discrimination). We decline to address this issue. Once the challenged party has offered a gender or race neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot. Currin v. State (Ind.App., 1994), 638 N.E.2d 1319, 1323 citing Hernandez v. New York (1991), 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395.

Koo next complains that the reasons he gave for challenging the female jurors were gender neutral. Specifically, counsel for Koo explained that he struck juror Taylor because she was young and attractive, he sensed electricity between her and the male prosecutor and because she visited a female doctor after leaving a male physician. Counsel indicated that he felt juror Taylor had a rapport with the prosecutor that he could not establish because he was older than the juror. Counsel further explained that he struck juror Taylor because she had taken Valium and Codeine without ill effects. According to Koo the question of drugs, especially Codeine and Valium, would surface as significant issues during the course of trial. Also, counsel maintained that based upon his twenty-five years in practice, he did not think it prudent to have young, attractive females on the jury. Concerning juror Usborne, counsel for Koo maintained that he struck her because she had never had children. Counsel indicated that he did not like "spinsters" and based on his experience "if you have a doubt on a juror, strike it rather than regret it later on." Record at 774.

As in race, a neutral explanation is one based on something other than the sex of the juror. See Minniefield v. State (1989), Ind., 539 N.E.2d 464, reh'g denied. Neutral means neutral with regard to the struck juror's group identity. Id. The focus of inquiry is the facial validity of the challenged party's explanation. Unless a discriminatory intent is inherent in the challenged party's explanation, the reason offered will be deemed neutral. Currin, at 1323 citing Hernandez, 500 U.S. at 358-60, 111 S.Ct. at 1866. However, the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact which is accorded great deference on appeal. Taylor v. State (1993), Ind.App., 615 N.E.2d 907. Atkins v. State (1990) Ind.App., 561 N.E.2d 797, 800, trans. denied.

In this case, contrary to Koo's assertion, his explanations for challenging both prospective female jurors were not facially neutral. Rather, the explanations were a mixture of neutral...