McCarthy v. State

Decision Date28 June 2001
Docket NumberNo. 37S04-0006-CR-359.,37S04-0006-CR-359.
PartiesTimothy McCARTHY, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Supreme Court

Marce Gonzalez, Jr., Merrillville, IN, Larry W. Rogers, Valparaiso, IN, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. On Petition to Transfer

RUCKER, Justice.

Case Summary

A jury convicted Timothy McCarthy 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. On initial review McCarthy raised several issues. Finding one issue dispositive, the Court of Appeals reversed the convictions and remanded the cause for a new trial. More specifically, the Court of Appeals determined that the trial court erred in limiting McCarthy's right to cross-examine a witness on the question of bias and that the error was per se reversible. McCarthy v. State, 726 N.E.2d 789 (Ind.Ct.App.2000). We agree the trial court erred. However, we conclude the error was harmless. We grant transfer on this point and also address the remaining issues which we restate as follows: (1) did the trial court erroneously admit evidence of McCarthy's prior bad acts; (2) did the trial court err in denying McCarthy's motion for a change of venue; (3) was the evidence sufficient to support the convictions; and (4) did the trial court err in imposing enhanced and consecutive sentences. We affirm the trial court.

Facts

The facts most favorable to the verdict show that in the fall of 1997, McCarthy was employed as a music teacher and band director at Kankakee Valley High School. K.G. and M.T. attended the school as fifteen-year-old sophomore students. Both participated in the school band and served as McCarthy's student assistants. On November 4, 1997, McCarthy told M.T. that he needed to speak with her and arranged for her to meet him in the faculty bathroom. Once inside, McCarthy locked the door, kissed M.T., exposed and touched her breasts, exposed himself, and encouraged M.T. to touch his penis. M.T. refused, and the encounter ended when McCarthy unlocked the door and M.T. left the bathroom.

Later that same day, traveling isolated roads, McCarthy drove K.G. home from school. While en route they played a game the parties referred to either as "perdiddle" or "strip perdiddle," which required participants to remove articles of clothing. After both McCarthy and K.G. were nude, McCarthy pulled to the side of the road where K.G. stroked his penis, and he touched her breasts and placed his finger in her vagina. McCarthy also attempted to engage K.G. in sexual intercourse but was not successful. When a car approached, both scrambled to get dressed. McCarthy then proceeded to take K.G. home.

That evening K.G. and M.T. talked with each other over the telephone and discussed the day's events. A couple of days later, the two students confronted McCarthy and told him they regretted what they had done and that it never should have happened. McCarthy became angry and told the students not to pretend they were victims and that they had voluntarily engaged in the encounters. Shortly thereafter, the students reported McCarthy's conduct to school officials.

On November 14, 1997, McCarthy was charged with two counts of sexual misconduct with a minor: Count I as a Class B felony concerning his conduct with K.G. and Count II as a Class C felony concerning his conduct with M.T. A trial conducted in June 1998 ended in a hung jury, and the trial court declared a mistrial. The second trial began in November 1998. In its case-in-chief upon retrial, the State called M.T.'s mother to the stand. On cross-examination, the following exchange occurred:

Q. Mrs. Cooper, you have a lot of animosity towards Mr. McCarthy, and rightfully so. Right?

A. For him molesting my daughter? Yes, I do.

Q. Uh, how much money are you going to make, or do you seek to get because of that?

R. at 1402-03. At this juncture, the State objected, and the trial court sustained the objection. Outside the presence of the jury, McCarthy made the following offer of proof:

Your Honor, I believe if this witness were allowed to [ ] answer this question, she would indicate[ ] 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, and I believe that that goes to the bias and/or prejudice of the witness, and is an appropriate subject for cross-examination.

R. at 1403. The trial court reaffirmed its ruling, prohibited McCarthy from pursuing this line of inquiry, and admonished the jury to disregard counsel's question. Ultimately the jury returned a verdict of guilty as charged. The trial court sentenced McCarthy to enhanced and consecutive terms of thirteen years for the Class B felony and five years for the Class C felony. On direct appeal, the Court of Appeals concluded that the trial court erred in denying McCarthy the opportunity to cross-examine Mrs. Cooper on the question of her potential bias due to her financial interest in the outcome of this case. Applying a per se error standard, the Court of Appeals reversed the conviction and remanded the cause for a new trial. The State seeks transfer. We affirm the trial court's judgment.

Discussion
I.

The right to cross-examine witnesses is guaranteed by the Sixth Amendment to the United States Constitution as well as Article 1, Section 13 of the Indiana Constitution. It is "one of the fundamental rights of our criminal justice system." Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992). It is true "this right is subject to reasonable limitations placed at the discretion of the trial judge." McQuay v. State, 566 N.E.2d 542, 543 (Ind.1991). However, the trial court's exercise of discretion in determining the permissible scope of cross-examination to test the credibility of a witness must be consistent with due process. Timberlake v. State, 690 N.E.2d 243, 255 (Ind.1997). If a witness in a criminal trial has a financial motive for testifying in a certain fashion, then the jury should hear about those matters because they are relevant to the question of the witness' credibility. Domangue v. State, 654 N.E.2d 1, 3 (Ind.Ct.App.1995); see also Bryant v. State, 233 Ind. 274, 118 N.E.2d 894, 896 (1954)

(declaring that cross-examination of a witness who is motivated by financial concerns is properly considered as it affects the credibility of that witness' testimony). In this case, denying McCarthy the opportunity to cross-examine Mrs. Cooper about an event that the jury may have determined furnished her with a motive for favoring the prosecution violated the Confrontation Clause and thus was error. The question however is whether the error automatically requires reversal.

There is authority for the proposition that a court of review has at its disposal two alternative courses of action when evaluating claims concerning the denial of the right to cross-examine witnesses. According to Haeger v. State, 181 Ind.App. 5, 390 N.E.2d 239 (1979), where the trial court permits "some" cross-examination on the question of witness bias, a court of review should evaluate the error "by the application of the harmless constitutional error test." Haeger, 390 N.E.2d at 241. On the other hand, where the record reflects a "curtailment" of cross-examination on the question of witness bias, then a court of review should assess such error by a "per se error standard." Id. (quoting Springer v. United States, 388 A.2d 846, 856 (D.C.1978)); accord Tucker v. State, 728 N.E.2d 261, 262 (Ind.Ct.App. 2000), trans. denied; Kleinrichert v. State, 530 N.E.2d 321, 322 (Ind.Ct.App. 1988); Higginbotham v. State, 427 N.E.2d 896, 901 (Ind.Ct.App.1981),overruled on other grounds by Micinski v. State, 487 N.E.2d 150 (Ind.1986)

; Pfefferkorn v. State, 413 N.E.2d 1088, 1090 (Ind.Ct.App.1980). In sum, under Haeger and its progeny, where a defendant has been denied any opportunity to cross-examine a witness on the question of bias, then the error is reversible per se. It is this authority upon which McCarthy relied in advancing his argument that because the trial court's ruling resulted in a curtailment of his right to cross-examine Mrs. Cooper, his conviction must be reversed. Since Haeger, the United States Supreme Court has addressed the question of the appropriate standard for reviewing a defendant's claim alleging the denial of his Sixth Amendment right to cross-examine witnesses:

[T]he constitutionally improper denial of the defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman [Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ] harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)1 (ruling that the trial court violated defendant's rights secured by the Confrontation Clause by prohibiting all inquiry into the possibility that a prosecution witness would be biased as a result of the State's dismissal of his pending public drunkenness charge). In two fairly recent decisions, this Court has followed Chapman and Van Arsdall. See Smith v. State, 721 N.E.2d 213, 219 (Ind.1999)

("[V]iolations of the right to cross-examine are subject to harmless-error analysis."); Standifer v. State, 718 N.E.2d 1107, 1110 (Ind.1999) (ruling that even though the defendant was denied the opportunity to fully cross-examine two State's witnesses concerning their bias in favor of the State, "his convictions will not be reversed if the State can demonstrate beyond a reasonable doubt that the...

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