Lagenour v. State, No. 277S119

Docket NºNo. 277S119
Citation376 N.E.2d 475, 268 Ind. 441
Case DateMay 30, 1978
CourtSupreme Court of Indiana

Page 475

376 N.E.2d 475
268 Ind. 441
Roger D. LAGENOUR, Appellant,
v.
STATE of Indiana, Appellee.
No. 277S119.
Supreme Court of Indiana.
May 30, 1978.

[268 Ind. 442]

Page 477

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with intent to gratify sexual desires, Ind.Code § 35-1-54-4, and kidnapping, Ind.Code § 35-1-55-1 (Burns 1975) both repealed October 1, 1977.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 [268 Ind. 443] 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

Page 478

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.

[268 Ind. 444] 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 [268 Ind. 445] 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

Page 479

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;...

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106 practice notes
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...concerning the admission of this statement have been waived. Smith v. State, (1983) Ind., 443 N.E.2d 1187, 1190; Lagenour v. State, (1978) 268 Ind. 441, 376 N.E.2d 475; Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d Defendants claim the trial court erred in not granting them a change of ......
  • Kobashigawa v. Silva, No. SCWC–30639.
    • United States
    • Supreme Court of Hawai'i
    • April 26, 2013
    ...P.2d 804, 826 (1983) (citing Twyford v. Weber, 220 N.W.2d 919 (Iowa 1974); Akins v. State, 429 N.E.2d 232 (Ind.1981); Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475 (1978); Tom H. Davis, Motions in Limine, 15 Clev.-Marshall L.Rev. 255 (1966)). Even earlier, in an opinion issued when the mo......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...be a proper objection made at the time evidence is offered in order to preserve the error for appeal. Lagenour v. State (1978), Ind., 376 N.E.2d 475; Carpenter v. State (1978), Ind.App., 378 N.E.2d ISSUE TWO: Motion to withdraw appearance. The Defendant next states that the trial court erre......
  • State v. Coleman, No. 90-728
    • United States
    • Supreme Court of Nebraska
    • January 10, 1992
    ...prevent prejudicial evidence from reaching the jury. Cf. State v. Bennett, R.I. , 405 A.2d 1181 (1979). As explained in Lagenour v. State, 268 Ind. 441, 450, 376 N.E.2d 475, 481 (1978): "[I]t is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of......
  • Request a trial to view additional results
105 cases
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...concerning the admission of this statement have been waived. Smith v. State, (1983) Ind., 443 N.E.2d 1187, 1190; Lagenour v. State, (1978) 268 Ind. 441, 376 N.E.2d 475; Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d Defendants claim the trial court erred in not granting them a change of ......
  • Kobashigawa v. Silva, No. SCWC–30639.
    • United States
    • Supreme Court of Hawai'i
    • April 26, 2013
    ...P.2d 804, 826 (1983) (citing Twyford v. Weber, 220 N.W.2d 919 (Iowa 1974); Akins v. State, 429 N.E.2d 232 (Ind.1981); Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475 (1978); Tom H. Davis, Motions in Limine, 15 Clev.-Marshall L.Rev. 255 (1966)). Even earlier, in an opinion issued when the mo......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...be a proper objection made at the time evidence is offered in order to preserve the error for appeal. Lagenour v. State (1978), Ind., 376 N.E.2d 475; Carpenter v. State (1978), Ind.App., 378 N.E.2d ISSUE TWO: Motion to withdraw appearance. The Defendant next states that the trial court erre......
  • State v. Coleman, No. 90-728
    • United States
    • Supreme Court of Nebraska
    • January 10, 1992
    ...prevent prejudicial evidence from reaching the jury. Cf. State v. Bennett, R.I. , 405 A.2d 1181 (1979). As explained in Lagenour v. State, 268 Ind. 441, 450, 376 N.E.2d 475, 481 (1978): "[I]t is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of......
  • Request a trial to view additional results

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