Miller v. State

• Decision Date: 07 December 1988
• Docket Number: No. 44S03-8812-CR-957,44S03-8812-CR-957
• Citation: 531 N.E.2d 466
• Parties: Richard D. MILLER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 466

531 N.E.2d 466

Richard D. MILLER, Appellant, v. STATE of Indiana, Appellee.

No. 44S03-8812-CR-957.

Supreme Court of Indiana.

Dec. 7, 1988.

Swanson & Campbell, Kimmerly A. Klee, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This case is before us on a petition to transfer. The Court of Appeals affirmed the trial court in an unpublished opinion. Appellant was convicted, in trial before the court, of child molesting, a class B felony, and received a fifteen year sentence. He now directly appeals his conviction.

There are essentially two issues presented for review: (1) whether the out-of-court statements of the victim should have been admitted into evidence; and (2) whether the evidence was sufficient to support the conviction.

The female victim in this case, L., was three and one-half years old at the time of the alleged molestation. Appellant and his wife were her regular baby-sitters and L.'s mother dropped her off at appellant's home around 3:00 p.m. on the afternoon of July 17, 1985. Appellant, who is afflicted with multiple sclerosis, was the only person present in the home at that time. Testimony established that appellant and L. were alone in the house between 45 minutes and 1 hour. When L.'s mother picked her up around midnight, L. was in her pajamas and playing in the living room where appellant was present. She did not seem upset at that time. Later at her home, around 3:00 a.m., L.'s mother heard her crying and upon taking her to the bathroom discovered blood on her underwear. L. refused to let her mother examine her and eventually went back to sleep.

The child was first questioned about the source of her injury the next morning around 11:00 a.m. by her father. He, having returned home from work, asked her if someone had hurt her and she replied that she did not know. She then went out to play in the yard.

L. was questioned a second time a short while later when her father joined her in the yard. He asked her again if anyone had hurt her, and on this second occasion she answered, "Richard". She pointed to her vaginal area to indicate where she was hurt.

During the afternoon of the same day she was examined by a doctor. The following day another examined her. Both discovered two tears in her vaginal area, one at the nine o'clock position and one at the three o'clock position, one was one half and the other three fourths of a centimeter in length. There was no bruising of the external labia. Extreme pain would have been experienced at the time of this injury. One testified that the lacerations were consistent with sexual intercourse while the other testified that the injuries could have been incurred in a variety of ways.

The third questioning of L. took place later that same afternoon at the sheriff's department, at about 5:00 p.m. After seeing the doctor, L. had been taken by her parents to the welfare department where they met with a worker. The parents, joined by the welfare worker, then took L. to the sheriff's department where they met with a female deputy. L. was interrogated by the deputy in the presence of her parents. When asked how she had been hurt and who had done it, she responded by asking her own questions on other subjects which apparently interested her. This third period of questioning produced no incriminating evidence.

The fourth questioning of L. took place about 6:45 p.m., that same afternoon at the same stationhouse. Dissatisfied with L.'s responses, her parents and the deputy then decided to try to interrogate L. in the absence of her parents in an attempt to overcome what was perceived by them to be a reluctance of the girl to talk about her experience. L. was then left alone in the room with the deputy sheriff and the welfare worker. She was further interrogated using anatomically correct dolls. Both reported that L. was difficult to interview but after much hedging she stated that she had been hurt and pointed to her vaginal area and stated "Richard" had hurt her. She also stated that he had used his "potty" thing, referring to the penis. This fourth session was tape recorded, and a transcript of it admitted as evidence at trial on the question of guilt or innocence over a hearsay and confrontation objection by the defense. Such ruling forms the basis for appellant's main appellate contention.

L. was present in the court house at the time of trial, but did not testify. She was however, questioned by the trial court for the purpose of determining her competency to testify. This took place outside the presence of appellant, by stipulation of the parties. Defense counsel was permitted the opportunity to question L., but declined, as all agreed from her responses to the judge's questions that she was incompetent. The court determined that she was not capable of understanding the nature and obligation of an oath and declared her to be incompetent and unavailable to testify. After this determination, appellant was given the opportunity to hear a tape recording of the court's questioning.

I.

Appellant stands convicted of child molesting, a class B felony, a crime defined in I.C. 35-42-4-3(a), charging him with having performed sexual intercourse with L., a female child, who was then under twelve, namely three years of age. The conclusion that an act of sexual intercourse took place with the child, and the identification of appellant as the person who committed that act, rests upon the inferences stemming from evidence of appellant's lone access to her for an hour, of the vaginal injuries suffered by the girl and discovered eleven hours after that access when, two hours after being put to bed by her mother, she began crying hysterically, and of the testimony of the examining physicians, coupled with the challenged statement which the girl gave to the police interrogators. The stationhouse statement is crucial evidence of guilt because it directly identifies the act as penetration by the penis, and appellant as the actor.

I.C. 34-1-14-5, governing the competence of witnesses in criminal cases through its incorporation by I.C. 35-37-4-1, provides:

"The following persons shall not be competent witnesses:

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... Children under ten years of age, unless it appears that they understand the nature and obligation of an oath".

Applying the procedures for protecting children during testimony, provided for by I.C. 35-37-4-8, the trial judge, as aforesaid, questioned the child L. outside the presence of the defendant. She was by then four years old. The court determined that she could not understand the nature and obligation of an oath, and thus could not be a competent witness in the trial of appellant. The correctness of this ruling is not in question in this appeal.

The trial court did however, over objection, go on to admit L.'s stationhouse statement incriminating appellant. The statement was sponsored by the police interrogator. This ruling was made pursuant to the authority of I.C. 35-37-4-6, governing the admission of out of court statements of children under ten years of age alleged to be the victims of sexual attack. There was no discrete hearing for this purpose attended by L., after notice to appellant of his right to be present as contemplated by I.C. 35-37-4-6(c)(1). The ruling of the court was apparently based upon the evidence presented at the hearing to determine competence and at the bench trial. The court relied upon the stationhouse statement of L. in determining guilt.

The recently enacted statute, I.C. 35-37-4-6, provides that, if certain criteria are met, statements or videotapes made by child sex crime victims are admissible into evidence when the child victim does not testify at trial. The child making the statement or videotape must be under the age of ten. L. was three. The statement must concern an act which is a material element of the crime committed against the child. L.'s statements here concerned the use of appellant's penis to penetrate L.'s vagina and went directly to the material elements of the crime. The statements of the child victim must be otherwise inadmissible. L.'s statements were clearly inadmissible hearsay, as L. was unavailable for cross examination at trial and the statements do not fit into any of the recognized exceptions to the hearsay rule. The statute further provides that if the child victim is unavailable, the statement is only admissible if there is corroborative evidence of the act committed. Vaginal abrasions discovered by two physicians are corroborative of the premise that vaginal penetration occurred.

This case is clearly of the type contemplated by the legislature in enacting this protective statute. I.C. 35-37-4-6 survived a constitutional challenge in Miller v. State (1987), Ind., 517 N.E.2d 64. What is now challenged is that statute as applied in this instance.

In Miller, supra, this court took a close look at both the constitutionality of I.C. 35-37-4-6 and the proceedings attendant upon assertion of the statute as a basis for admission of certain statements or videotapes. Chief Justice Shepard noted the following:

"Although state statutes vary greatly, nearly all explicitly require that the defendant have an opportunity for cross-examination, either at trial or when the statement is made. Some states allow investigating officers or therapists to videotape a statement without the defendant present but permit admission of such statements only if the victim is available for cross-examination at trial.

The documented history of the Indiana statute, although lean, indicates that the legislature intended that the hearing on the admissibility of the child victim's statement be adversarial in nature with full confrontation between defendant and victim. The legislature intended that the child testify during this hearing even if the child will be unavailable for trial.

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We agree with the...