Lagenour v. State

Decision Date30 May 1978
Docket NumberNo. 277S119,277S119
Citation376 N.E.2d 475,268 Ind. 441
PartiesRoger D. LAGENOUR, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Arthur L. Dillard, Orange County Public Defender, Paoli, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted of the offenses of assault and battery with intent to gratify sexual desires, Ind.Code § 35-1-54-4, and kidnapping, Ind.Code § 35-1-55-1 (Burns 1975) both repealed October 1, 1977.

Appellant presents four issues in this direct appeal: (1) denial of appellant's right to confrontation by the trial court's order precluding him from cross-examining the State's witnesses on the subject of prior sexual activities; (2) failure of the State to disclose, pursuant to an order of the trial court, that appellant made an incriminating statement while in custody; (3) propriety of joinder of the two offenses with which appellant was charged for trial; and (4) overruling of appellant's motion in limine seeking exclusion of evidence of separate crimes allegedly committed by appellant.

On the evening of April 26, 1976, the prosecuting witness, a sixteen year old girl, accompanied two male friends to the Colonial Bar in French Lick; she remained outside in their automobile in a parking lot.

Inside the tavern the two friends met appellant and conversed with him. One of the friends told the other to go out to the car and "check on" the girl, but the latter was in an advanced state of inebriation. Appellant volunteered to go out and "take care of" the girl.

Appellant approached and entered the automobile, telling the prosecuting witness that he was going to pick up Timmy, the intoxicated friend. However, he drove instead to a small country lane where he parked, despite the girl's request that he return her to the parking lot. He removed his pants and the girl's lower garments, despite her resistance. Appellant told the prosecuting witness that he was going to "do it to her." When another car pulled into the lane, however, they both replaced their clothing and appellant returned to the parking lot.

Appellant brought Timmy out of the bar and they found the prosecuting witness sitting in the car crying. Other acquaintances from the bar gathered and one girl told the witness appellant's name.

Someone called the French Lick police, and appellant was apparently arrested at the parking lot, although the record is unclear in this regard.

At trial two young women testified that appellant had also made sexual assaults upon them.

JEH testified that appellant abducted her from a patio at a hotel in French Lick where she was attending a Young Republicans convention in August of 1975. He dragged her into the bushes and raped her at knifepoint.

DW testified that as she gave appellant a ride in December of 1975 he began to disrobe, attempted to remove her shirt, and forced her to drive to the same area to which appellant took the prosecuting witness. She jumped out of her car and ran.

Although appellant was charged with crimes arising from these incidents he was not convicted of either; both prosecutions were dismissed by the prosecutor.

I.

Before trial the State sought and received an order prohibiting appellant from examining the prosecuting witness and the other alleged victims of appellant's sexual assaults as to their prior sexual conduct. The order was based in major part upon the Indiana "Rape Shield Law," Ind.Code §§ 35-1-32.5-1 to 4 (Burns 1977 Supp.) Appellant contested the grant of this order. On appeal he contends that the trial court's order was erroneous for the following reasons: (1) The rape shield law unconstitutionally restricts appellant's cross-examination of the prosecuting witness in violation of the guarantee of the Sixth Amendment and Art. 1, § 13, of the Indiana Constitution, of the right to confront witnesses; (2) The rape shield law does not apply to victims of separate crimes, evidence of which is offered to establish a defendant's identity, nor to the victim of a kidnapping (the prosecuting witness was alleged to be the victim of a kidnapping as well as of the assault and battery with intent to gratify sexual desires).

Appellant relies on Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, and specifically contends that he was precluded from inquiring into facets of the prior sexual conduct of the prosecuting witness which might show bias or motive for falsely accusing appellant. Davis held that the confrontation clause prohibits the state from prosecuting the accused through witnesses whose testimony is sheltered from impeachment by evidentiary privileges, the purpose of which is to further extraneous state interests. The Davis court was not concerned with the exercise of a state's power to define the scope of proper impeachment or cross-examination as we are in this case.

The right to confront witnesses granted by the federal and state constitutional provisions relied upon includes the right of full, adequate and effective cross-examination; it is fundamental and essential to a fair trial. Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Montes v. State (1975), Ind., 332 N.E.2d 786; Whitney v. State (1899), 154 Ind. 573, 57 N.E. 398; Williams v. State (1972), 153 Ind.App. 597, 288 N.E.2d 580. In speaking of this right in Sears v. State (1972), 258 Ind. 561, 282 N.E.2d 807, we said:

"The right to vigorous cross examination is fundamental to our adversary process, and wide latitude is allowed both sides in a dispute to ask pointed and relevant questions on cross examination in an attempt to undermine the opposition's case. Thus, any doubt as to the legitimacy of a question on cross examination should be resolved in favor of the questioner." 258 Ind. at 563, 282 N.E.2d at 808.

We regard the sources of the limitation upon cross-examination here to be the trial court order which was based in part upon the statute and in part upon inherent power, and the statute operating directing and independently thereof.

Appellant is correct in his contention that the rape shield law does not apply to victims of separate crimes nor to the victim of a kidnapping. However, the trial court's order as to them may be sustained as an exercise of inherent discretionary power to exclude and admit evidence and to grant motions in limine. Morris v. State (1976), Ind., 352 N.E.2d 705; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536; Morris v. State (1977), Ind.App., 360 N.E.2d 1027; Burrus v. Silhavy (1973), 155 Ind.App. 558, 293 N.E.2d 794. The exercise of such authority must be in accord with due process and the right of confrontation. Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. The primary issue before us is whether the total limitation prevented appellant from conducting a full and effective cross-examination of the three women, in violation of the constitutions. Appellant has relied upon the general contention throughout that the limitation deprived him of "reasonable latitude in effectively cross-examining the witness . . . in eliciting facts concerning their prior sexual conduct for the purposes of revealing their reputations for veracity, possible biases, prejudices or ulterior motives." There is no suggestion made of the existence of any line of questioning related to any of the witnesses which could have been followed in the absence of the limitation. There is no suggestion made that any of the witnesses might have an attitude or inclination which could be the product of prior sexual conduct. Appellant's contention that he was deprived by the order and statute from effectively cross-examining the three witnesses cannot be sustained. We would not be understood as requiring counsel to make an offer to prove to substantiate a confrontation claim of this sort, as any such requirement would be contrary to present law, Strickland v. State (1977), Ind., 359 N.E.2d 244. What we do require is the showing of an actual impingement upon cross-examination.

II.

Appellant filed a number of discovery motions seeking among other things, disclosure of any confessions or statements made by appellant. The motions recited reliance on Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, but the court treated them as addressed to its inherent power to order discovery in criminal prosecutions. Appellant was entitled to the order requested absent a showing by the prosecution of a paramount interest in non-disclosure. Sexton v. State (1972), 257 Ind. 556, 276 N.E.2d 836. The trial court granted the motion and ordered the prosecutor to produce such statements. The State in response to the order answered that appellant had made no statements, but that he had signed a Miranda rights waiver form which had been "misplaced."

In his motion to correct errors and supporting affidavit appellant alleged that:

(1) after trial appellant's attorney obtained from law enforcement officials a copy of the waiver form and a memorandum, alleged to be in the handwriting of the prosecuting attorney, evidencing a statement made by the appellant on the night of his arrest;

(2) the State had "blatantly disregarded" the trial court's discovery orders, submitted "false and fictitious" responses, and "could not deny knowledge of the . . . statement";

(3) appellant had been denied a fair trial by the omission of the State to disclose the statement.

The memorandum recited that appellant had initially denied any knowledge of the incident but eventually admitted to fondling the prosecuting witness, although he denied removing her from the parking lot.

The prosecuting attorney filed a counter-affidavit averring that the omission to produce the statement and his denial of its existence was inadvertent and was due to mistake, confusion, and failure of memory on...

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