McCarthy v. State
| Decision Date | 30 March 2000 |
| Docket Number | No. 37A04-9903-CR-108.,37A04-9903-CR-108. |
| Citation | 726 N.E.2d 789 |
| Parties | Timothy McCARTHY, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Marce Gonzalez, Jr., Merrillville, Indiana, Larry W. Rogers, Valparaiso, Indiana, Attorneys for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Timothy McCarthy was found guilty by a jury of one count of sexual misconduct with a minor as a Class B felony and one count of sexual misconduct with a minor as a Class C felony. The trial court ordered an enhanced sentence of thirteen years for the Class B felony and an enhanced sentence of five years for the Class C felony, which sentences were ordered to be served consecutively. McCarthy appeals his convictions and resulting sentence. We reverse.
McCarthy raises five issues for our review, of which we find the following dispositive: positive; whether the trial court properly limited McCarthy's cross-examination of an alleged victim's mother and excluded evidence that she had filed a notice of tort claim against the school corporation which employed McCarthy and possibly intended to file a lawsuit against McCarthy personally.
The facts most favorable to the verdict reveal that in the fall of 1997, McCarthy was a music teacher and band director at Kankakee Valley High School. On November 4, 1997, McCarthy told his fifteen year old student assistant, M.T., that he needed to speak with her and arranged to meet her in the faculty bathroom. Once in the bathroom, McCarthy locked the door, kissed M.T., exposed and touched her breasts, exposed himself, and attempted to make her touch his penis. M.T. refused and McCarthy unlocked the door and let her out of the bathroom.
Also on November 4, 1997, McCarthy and a fifteen year old student, K.G., engaged in a game of "strip perdiddle" while McCarthy drove K.G. home. "Perdiddle" is usually played by spotting cars with one headlight out. Because it was daylight, however, they played "perdiddle" with white mailboxes instead of headlights: the first person to spot a white mailbox and say "perdiddle" told the other player to remove a specific article of clothing. When both McCarthy and K.G. were naked, McCarthy had K.G. stroke his penis, he touched her breasts and penetrated her vagina with his finger, and he attempted intercourse but was unable to complete the act.
McCarthy was charged with two counts of sexual misconduct with a minor by information filed November 14, 1997. A jury trial was held in June of 1998, which ended in a mistrial due to the jury's inability to reach a unanimous verdict. A new trial was scheduled for November of 1998.
At the November re-trial, a jury found McCarthy guilty of both counts of sexual misconduct with a minor. McCarthy was subsequently sentenced to an enhanced sentence of thirteen years for the Class B felony and five years for the Class C felony, which sentences were ordered to be served consecutively. Additional facts will be provided as necessary.
McCarthy contends that the trial court erred in limiting his cross-examination of M.T.'s mother regarding the fact that she had filed a notice of tort claim against the school corporation for McCarthy's alleged actions and possibly intended to file a lawsuit against McCarthy personally and therefore had a potential financial interest in the outcome of this case.
Haeger v. State, 181 Ind.App. 5, 390 N.E.2d 239, 241 (1979) (quoting Springer v. United States, 388 A.2d 846, 856 (D.C. 1978)).
At trial, M.T.'s mother, Jodi Cooper, testified. McCarthy's counsel sought to inquire on cross-examination into the fact that Cooper had filed a notice of tort claim against the school corporation and possibly intended to file a lawsuit against McCarthy personally based upon the same alleged actions for which McCarthy was on trial. Counsel asked Cooper, "how much money are you going to make, or do you seek to get because of [this]?" R. 1403. The State objected, and the trial court sustained the objection. Counsel then made an offer to prove, during which he stated that "if this witness were allowed to answer this question, she would indicated [sic] that a Notice of Tort Claim has been filed against the Kankakee Valley School Corporation seeking damages from the school corporation and perhaps Mr. McCarthy personally...." R. 1403. The trial court stated that it would only reconsider its ruling if McCarthy "can show a substantial deviation from her prior testimony that might have been shaded because she's trying to aide [sic] her lawsuit...." R. 1404. The trial court also stated:
[w]hat has happened subsequent, as you well know, either you meet the statutory guidelines for a tort claim against an administrative agency or you lose it.... [W]hether or not she sues or whether or not she's filed a complaint is not an issue at this point.... Because it's the same as raising your constitutional right to remain silent. You can't use someone's raising their legal — having done something to protect their legal rights against them. It seems to be the same analogy.
McCarthy contends that the trial court erred in limiting his cross-examination of Ms. Cooper regarding her financial interest in the outcome of this criminal prosecution. "Any fact tending to impair the credibility of a witness by showing his interest is a material matter regarding which cross-examination is a right and not a mere privilege, and a denial of cross-examination upon such a material matter is reversible error." Acker v. State, 239 Ind. 466, 158 N.E.2d 790, 791 (1959). However, an actual infringement of cross-examination must be shown and the defendant must also show how the forbidden subject related to the credibility of the witness. Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475, 479 (1978). A witness' credibility may be affected by financial considerations and thus, such considerations may be a proper subject for cross-examination. Domangue v. State, 654 N.E.2d 1, 3 (Ind.Ct.App.1995). "If a witness in a criminal trial has a financial motive for testifying in a certain fashion, the jury should hear about those matters as they are relevant evidence of credibility." Id.
In Kleinrichert v. State, 530 N.E.2d 321 (Ind.Ct.App.1988), trans. denied, this court reversed the defendant's conviction for possession of cocaine and held that the jury was "not able to properly perform its fact finding function because relevant evidence was excluded by the trial court." Id. at 323. The "relevant evidence" was evidence that the defendant had filed a tort claim notice against the county sheriff's department for false arrest and his stated intention to sue Detective Kitch personally. The trial court excluded all evidence of pending or contemplated lawsuits and evidence of animosity between the defendant and Kitch. This court held that such evidence may have demonstrated bias, prejudice, and interest in the outcome of the case on the part of Kitch and may have affected the jury's evaluation of Kitch's credibility. This was especially important because there was a conflict in the...
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McCarthy v. State
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