Lawrence v. State
| Decision Date | 26 November 1980 |
| Docket Number | No. 280S55,280S55 |
| Citation | 274 Ind. 468,412 N.E.2d 236 |
| Parties | Daniel LAWRENCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of armed rape after trial by jury and was sentenced to thirty (30) years imprisonment. This direct appeal presents the following issues:
(1) Whether or not the trial court erred in sustaining the State's objection to a question asked of the victim at a deposition.
(2) Whether or not the trial court erred in admitting into evidence a photograph of the defendant, which was taken by the police following his arrest on another charge.
On July 23, 1979 the defendant deposed the prosecutrix. She was asked if she recalled making a statement to the physician who examined her at the hospital that the alleged rape was her first sexual intercourse experience. The State objected and the prosecutrix refused to answer. The basis of the objection was that the question was precluded by Indiana's rape shield statute, Ind. Code § 35-1-32.5-1, et seq. (Burns 1979).
Defendant filed a certificate of refusal to answer with the trial court on August 10, 1979. The record indicates numerous proceedings occurred between August 10, 1979 and the date of trial, September 17, 1979.
On September 17, 1979 just prior to reading its preliminary instructions to the jury, the trial court published the victim's deposition and sustained the State's objection to the certified question.
The notary before whom the deposition was taken certified the question and the refusal to answer to the court " * * * for such action as this Court may deem proper.", which certification was filed with the court, presumably by Defendant's counsel on August 10, 1979. However the court took no action thereon until September 17, 1979, the day of trial, at which time it sustained the State's objection to the question.
Defendant now seeks a new trial premised upon the proposition that the rape shield statute is applicable only to render certain evidence inadmissible in the presence of the jury and that by its invocation and application to the deposition, his discovery rights were thwarted. He also contends that the question was relevant to potential defenses and that it was necessary for him to make an informed decision as to whether to proceed under Ind.Code § 35-1-32.5-3 but that, without an answer to the question, he could not make the required offer to prove. We perceive this also to be a discovery procedure problem.
We find it unnecessary to consider whether or not the court erred in determining, as it did, that the witness was warranted in refusing to answer the question. The matter could have been litigated in advance of trial by adjourning the deposition until the defendant could seek an order of the court requiring the witness to answer. In the same proceeding, the State could have sought a protective order, all as provided by our Rules of Trial Procedure relating to discovery. The defendant sought no such order. The mere filing of the Notary's certification did not perform that function, and there was nothing to apprize the trial court that the defendant desired a ruling regarded as being material to his discovery. In the context of the certification, the court properly ruled that the question was proscribed at trial. In the context of discovery rights, the question was moot, as discovery had been completed and the trial had commenced.
Even if we were to regard the certification of the question to fill the station of a motion to order the witness to answer, by proceeding to trial without obtaining a ruling thereon, the defendant waived any error that might have resulted. Chustak v. Northern Indiana Public Service Company, (1972) 259 Ind. 390, 394, 288 N.E.2d 149, 152 (). See Misenheimer v. State, (1978) 268 Ind. 274, 288-89, 374 N.E.2d 523, 527 (); Jaudon v. State, (1970) 255 Ind. 114, 116, 262 N.E.2d 851, 852 (); Reed v. State, (1895) 141 Ind. 116, 119, 40 N.E. 525 (). See also Cody v. State, (1973) 259 Ind. 570, 575, 290 N.E.2d 38, 41, cert. denied, (1974) 416 U.S. 960, 94 S.Ct. 1978, 40 L.Ed.2d 311 (); Rudy v. State, (1976) 168 Ind.App. 73, 81, 341 N.E.2d 516, 520 (same). Cf. Williams v. Travelers Insurance Company, (1975) 49 Cal.App.3d 805, 810, 123 Cal.Rptr. 83, 85 (); Chaison v. LeBlanc, (1978) La.App., 363 So.2d 87, 90 (); Baylor University Medical Center v. Travelers Insurance Company, (1979) Tex.Civ.App., 587 S.W.2d 501, 506 (); Atwood v. Kerr, (1978) 136 Vt. 515, 516, 394 A.2d 1132, 1133 (same); Ind.R.Tr.P. 32(D).
The trial court admitted into evidence, without objection, a single photographic print showing both the front and profile views of the defendant. A police officer testified that this...
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