Ludack v. State

• Decision Date: 25 April 2012
• Docket Number: No. 49A02–1109–CR–930.,49A02–1109–CR–930.
• Parties: John LUDACK, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

967 N.E.2d 41

John LUDACK, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1109–CR–930.

Court of Appeals of Indiana.

April 25, 2012.

Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

John Ludack was convicted of two counts of class A felony child molesting and adjudicated a habitual offender and sentenced to an aggregate term of one hundred thirty years. On appeal, he argues that his constitutional right against compulsory self-incrimination was violated when the detective who interviewed him testified that Ludack neither admitted nor denied the allegations of child molesting but just asked to stop speaking. Ludack also argues that his sentence is inappropriate in light of the nature of the offenses and his character.

We conclude that defense counsel, by first asking the detective whether Ludack had admitted the allegations of child molestation during the interview, opened the door to the detective's testimony. We also conclude that Ludack fails to carry his burden to persuade us that his sentence is inappropriate. Therefore, we affirm his convictions and sentence.

Facts and Procedural History

In June 2008, Ludack lived in an Indianapolis apartment with his girlfriend T.E. and her children: ten-year-old M.E. and her older brothers, T.V. and A.V. Ludack had been living with them approximately eighteen months. T.E. worked full-time at a pharmacy and attended cosmetology school. While T.E. was working and attending classes, Ludack cared for the children, with whom he had a good relationship.

One day in early June while T.E. was at work, Ludack told M.E. to go into her mother's bedroom. Once there, Ludack told her to take off her clothes. M.E. tried to leave, but Ludack blocked the door. M.E. said that she was going to call her mother, but Ludack had the phone and would not give it to her. M.E. was scared. Ludack finally let M.E. out of the bedroom, but would not let her call her mother.

Ludack then told M.E. to go to her bedroom. He followed her into her room and shut the door behind him. He told her to remove her pants and underwear and get on the bed. She complied and lay on her back. Ludack forcibly held M.E. down as he put his penis in her vagina. M.E. was frightened and in pain. She tried to make him stop and struggled to get up. He violently held down her legs using a great deal of force. Afterward, M.E. continued to feel pain and noticed that she was bleeding a little bit. Ludack told M.E. that if she told anyone that he “would hurt [her] mom or [Ludack and her mom] would be gone for a long time, or he would hurt anyone [that M.E.] told.” Tr. at 30.

During the first two weeks of June, Ludack forced M.E. to have sexual intercourse several times. Once, it occurred in her mother's bedroom. Another time, M.E. fought back and scratched Ludack. Another time, Ludack attempted to force her to have sexual intercourse in the living room, but he was interrupted when T.V. and A.V. knocked on the apartment door and wanted to come in.

On June 15, 2008, Ludack left the apartment and never returned. Sometime after Ludack left, M.E. tearfully explained to T.V., using hand gestures, that Ludack had put his penis in her vagina. She told T.V. not to tell anyone because Ludack had said that he would hurt someone. T.V. did not tell anyone until January 2011, when he broke down and told his father, who immediately called T.E. She in turn immediately called the police. A forensic child interviewer interviewed M.E., and a medical doctor physically examined her. The physical exam did not reveal any physical evidence of the sexual abuse that had occurred two and a half years earlier. Indianapolis police detective Chris Lawrence interviewed Ludack, T.E., T.V., and T.V.'s father.

The State charged Ludack with two counts of class A felony child molesting ¹ and two counts of class C felony child molesting and alleged that he was a habitual offender. The jury found Ludack guilty as charged, and he pleaded guilty to the habitual offender enhancement. The trial court sentenced Ludack to fifty years on each class A felony child molesting conviction and thirty years for the habitual offender enhancement, to be served consecutively, for an aggregate executed sentence of one hundred thirty years. Ludack appeals.

Discussion and Decision

I. Fifth Amendment Violation

At trial, Detective Lawrence testified for the State. On direct examination, the prosecutor asked Detective Lawrence (1) whether he had interviewed Ludack, (2) whether Ludack stated that he was living with T.E. in June 2008, and (3) whether Ludack stated that he provided childcare to T.E.'s children. Detective Lawrence answered all three questions affirmatively. The prosecutor did not ask any other questions about Detective Lawrence's interview with Ludack. On cross-examination, Ludack's attorney asked Detective Lawrence whether Ludack “made any admissions” during the interview, and the detective replied, “He didn't admit to it, no.” Tr. at 122–23. At a sidebar conference, the prosecutor argued to the court that the jury was left with a false impression and that she wanted to further examine the detective to confirm that Ludack had neither admitted nor denied the allegations of sexualabuse. The trial court granted the request, and the prosecutor questioned Detective Lawrence as follows:

Q: When you did you[r] interview with John Ludack, it was a fairly short interview, wasn't it?

A: Yes, it was.

Q: And during that short period of time he gave you a few facts that we've already discussed, is that correct?

A: Yes, he did.

Q: And he neither admitted nor denied committing the offense, didn't he?

A: He didn't deny doing it either; he just asked to stop speaking.

Id. at 124–25 (emphasis added). Ludack did not object, move to strike, or move for mistrial.

Ludack argues that Detective Lawrence's testimony violated his right against compulsory self-incrimination guaranteed in the Fifth Amendment to the United States Constitution, resulting in fundamental error. “In order to constitute fundamental error, an error must be blatant and the potential harm must be so substantial and apparent that to ignore it would clearly constitute a denial of due process.' ” Owens v. State, 937 N.E.2d 880, 885 (Ind.Ct.App.2010) (quoting Hinkle v. State, 569 N.E.2d 349, 350 (Ind.Ct.App.1990), trans. denied (1991)), trans. denied (2011).

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” ² This privilege extends to the states through the Fourteenth Amendment. The scope of the privilege is comprehensive.

The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. [I]t protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.

Application of Gault, 387 U.S. 1, 47–48, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (citation and quotation marks omitted).

Specifically, Ludack argues that his Fifth Amendment right was violated when, during the State's case-in-chief, Detective Lawrence testified that Ludack “didn't deny doing it either; he just asked to stop speaking.” Tr. at 125. In arguing whether this testimony presents a Fifth Amendment violation, the parties disagree on whether the State used Detective Lawrence's testimony as substantive evidence of Ludack's guilt. They also disagree as to whether Detective Lawrence's testimony revealed that Ludack had invoked the right to remain silent or reflected pre-arrest, pre- Miranda silence.³ We need not untangle these disagreements to determine whether fundamental error occurred. Instead, we conclude that because it was defense counsel who first questioned Detective Lawrence as to what Ludack did not say during the interview, no error occurred as a result of the prosecutor's follow-up questions. This conclusion is based on two legal principles.

The first is that a prosecutor may comment upon a defendant's decision to invoke the Fifth Amendment right against self-incrimination where the criminal defendant's own arguments invite such a comment. In United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), defense counsel said in closing argument that the government had not been fair to the defendant (who had not testified) and had unfairly denied the defendant the opportunity to explain his actions. In his rebuttal, the prosecutor stated that the defendant could have taken the stand to explain his side of the story. The defendant argued that the prosecutor's remark violated the Fifth Amendment. In addressing his argument, the Robinson court emphasized that “prosecutorial comment must be examined in context.” Id. at 33, 108 S.Ct. 864. The court concluded that “the prosecutorial comment did not treat the defendant's silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case.” Id. at 32, 108 S.Ct. 864. The court held that in light of defense counsel's comments, the prosecutor's statement did not infringe on the defendant's Fifth Amendment right. Id. at 31, 108 S.Ct. 864. The court explained the basis for its ruling as follows:

The central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence. To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another. The broad dicta in Griffin [ v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)⁴] to the...