McCoy v. State

• Decision Date: 25 June 1991
• Docket Number: No. 48A04-8907-CR-00312,48A04-8907-CR-00312
• Citation: 574 N.E.2d 304
• Parties: Lawrence J. McCOY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1
• Court: Indiana Appellate Court

Page 304

574 N.E.2d 304

Lawrence J. McCOY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A04-8907-CR-00312. ¹

Court of Appeals of Indiana Fifth District.

June 25, 1991.

William D. McCarty, Anderson, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

A jury convicted Lawrence J. McCoy (McCoy) of two counts of child molesting (Class D and Class C felonies) ² for which he received consecutive sentences of two and six years, respectively.

McCoy raises nine issues on appeal, which we combine and recast as follows:

(1) whether McCoy was denied a fair trial due to the prosecutor's questions and closing comments concerning McCoy's "resist[ance]" to taking a sterility test, as well as other statements made during closing argument;

(2) whether sufficient evidence supported the jury's decision; and

(3) whether the sentences were manifestly unjust.

We affirm.

The facts read most favorably to the state reveal that in November, 1988, 15 year-old WDW was found naked, hiding in the closet of a bedroom in a trailer home in Louisiana which she shared with McCoy. WDW told a Louisiana policeman that she and McCoy, a 41 year-old married man, had been sexually intimate for approximately a year in Indiana and also during the few days they were in Louisiana. WDW reported that she had left Indiana with McCoy of her own accord. McCoy also admitted to Louisiana police that he had had a sexual relationship with WDW for about one year.

After she returned to Indiana, WDW told Officer Koons, a police officer specializing in child abuse cases, that she and McCoy first had a sexual encounter in November of 1987 at which time they touched each other "everywhere" while undressed, but did not have sexual intercourse. She was 14 years old at the time. WDW disclosed that approximately two weeks later, she had intercourse with McCoy and their sexual activity continued for a year. The next day, WDW retracted her statement.

The amended information, Count I, charged that "[a]t various times from on or about the 14th day of November, 1987, to on or about the 20th day of November, 1988, in Madison County, State of Indiana, the Defendant, ..., who was at least sixteen (16) years of age, did perform and submit to fondling and touching with [WDW], a child who was a[t] least twelve (12) years of age but under sixteen (16) years of age, ..., with the intent of arousing [his] sexual desires...." Count II charged that during this same period McCoy "did perform sexual intercourse with [WDW]."

I.

The first issue stems from the trial court's denial of the State's motion to compel McCoy to take a sterility test. The Friday before trial, the State so moved in order to corroborate the victim's retracted statement that, despite having sex with McCoy for over a year, she was not afraid of becoming pregnant by McCoy because he was "impotent" and could not father children. The court denied the State's motion on fourth amendment grounds.

At trial, defense counsel raised the issue of McCoy's sterility by asking McCoy's wife whether she had been pregnant by McCoy. She confirmed that two pregnancies had ended in miscarriages. McCoy testified in his own defense, and on cross-examination, the following exchange occurred:

Q. It is a fact, Mr. McCoy, that the State has sought to have you medically examined to determine whether or not you're sterile?

A. I've heard that....

(Objection by defense counsel and ensuing discussion)

....

Q. Is it also a fact that you, through your attorney, resisted that examination?

A. Yes, sir.

Record at 726-27.

The trial court erred in permitting the prosecutor to pursue this line of questioning. Although a trial judge has wide discretion to determine the "scope and extent of cross-examination," Jaske v. State (1990), Ind.App., 553 N.E.2d 181, 186, trans. den.; Johnson v. State (1988), Ind., 518 N.E.2d 1073, the prosecution cannot introduce evidence of a defendant's exercise of his constitutional rights in order to impeach the defendant or invite the jury to infer the defendant's guilt from the exercise of those rights. See, e.g., Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) (impeachment by using defendant's post-Miranda silence unfair); Sulie v. Duckworth, 864 F.2d 1348, 1356 (7th Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 93, 107 L.Ed.2d 58 (1989) (use at trial of post-Miranda request for counsel violated due process); but see Cook v. State (1989), Ind., 544 N.E.2d 1359, 1363 (comment on exercise of fifth amendment impermissible, comment on request for counsel permissible); Dack v. State (1985), Ind.App., 479 N.E.2d 96, 97, reh. den., trans. den., (direct or indirect comment "on the accused's exercise of his rights" not permitted). ³

Having determined the trial court erred in permitting the foregoing line of questioning, we turn to whether the error was harmless. "Improper questioning ... may be deemed harmless error ... if the court, after assessing the record as a whole to determine the probable impact of the improper evidence on the jury, concludes beyond a reasonable doubt that the error did not influence the verdict." Heyward v. State (1988), Ind.App., 524 N.E.2d 15, 19. Among the factors to be addressed in this analysis are:

1) the use to which the prosecution puts the [assertion of a constitutional right]; 2) who elected to pursue the line of questioning; 3) the quantum of other evidence of guilt; 4) the intensity and frequency of the reference; and 5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

Henson v. State (1987), Ind., 514 N.E.2d 1064, 1067.

We conclude that neither the prosecutor's questions, ⁴ nor his comments in closing (which were not objected to), improperly influenced the jury's verdict as to Count II involving sexual intercourse. We hasten to add, however, that we do not condone the prosecutor's conduct in this regard. ⁵

Like the prosecutor in Henson, who questioned a police officer about the defendant's "refus[al] to be interrogated," the prosecutor here used the questions to McCoy and comments in summation "to suggest that if defendant was innocent, he would not have refused" to take the test. Id. But the connection between a request to take a sterility test and guilt of child molesting is tenuous at best. See Pointon v. State (1980), 274 Ind. 44, 55, 408 N.E.2d 1255, 1262 ("the mere fact that a place has been searched is not evidence at trial since it does not tend to prove or disprove a material fact"). This was a collateral issue on Count II (the intercourse charge) and not relevant at all to Count I (the touching and fondling charge). The less material the issue, the less likely it taints a jury's decision. See, e.g., Cook v. State (1989), Ind., 544 N.E.2d 1359, 1362 (while tangible evidence was admitted erroneously, the error was harmless; since testimony was more damaging than the tangible evidence, the evidence was "essentially immaterial to the issue of Cook's guilt" and "probably peripheral to the jury's judgment").

In addition, the defense, not the prosecution, first introduced evidence of McCoy's sterility by asking his wife whether she had ever been pregnant by McCoy. Nor did the prosecutor repeatedly bring up McCoy's failure to take the sterility test. He asked only one question regarding McCoy's "resist[ance]" to the test, and mentioned the issue in closing once.

Moreover, the amount of evidence supporting defendant's guilt excluding the prosecutor's questions and comment, as discussed in the following section, demonstrates that the jury could not have been influenced by the impermissible tactics. In sum, because we are convinced that the prosecutor's questions and comment regarding the sterility test, while constitutional error, did not effect the jury's verdict, we find them harmless error.

McCoy further contends that comments made by the prosecutor during closing argument represent prosecutorial misconduct. See Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. McCoy, however, failed to object to any portion of the State's closing argument and now argues that this Court should nonetheless review the claim under the fundamental error rule. Jester v. State (1990), Ind., 551 N.E.2d 840, 843 (defense counsel's failure to object during closing argument results in waiver, but issue can be reviewed if it constitutes fundamental error). McCoy alleges that the prosecutor: misstated facts; called McCoy not credible because, as the defendant, he "ha[d] a reason to fabricate"; misstated the law; inflamed the jury by inferring that the case involved parental rights; and invited the jury to consider the fact that McCoy did not submit to a physical examination or produce evidence of his sterility.

The Maldonado test is a two-step inquiry. First, McCoy must show improprieties under case law or canons of conduct; McCoy must then prove prejudice, or "grave peril." 265 Ind. at 498-99, 355 N.E.2d at 848. A prosecutor's comments can be prejudicial if they have an impact "on the jury's ability to judge the evidence fairly." Gasaway v. State (1989), Ind.App., 547 N.E.2d 898, 902, reh. den., trans. den.

However, this Court can only examine the alleged misconduct under the fundamental error standard since the error was not preserved at trial. Thus, McCoy must demonstrate that this "grave peril" denied him due process. Ward v. State (1988), Ind., 519 N.E.2d 561. "Only when the record reveals clearly blatant violations of basic and elementary principles, and the harm or potential for harm could not be denied, will this Court review an issue not properly raised and preserved." Northern v. State (1986), Ind., 489 N.E.2d 520, 521.

There is a fine line between vigorous advocacy in closing argument and impermissible conduct. We will address...