Miller v. State
| Decision Date | 23 October 1986 |
| Docket Number | No. 1-1285A327,1-1285A327 |
| Citation | 498 N.E.2d 1008 |
| Parties | Annabel MILLER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, Margaret S. Hills, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant, Annabel Miller (Annabel), was charged in the Pike Circuit Court with an eleven-count Information as follows: Count I, child molesting, a Class B felony, by aiding Michael Miller, Sr., to perform the act of sexual intercourse with A.M., age 4; Count II, child molesting, a Class B felony, by aiding Michael Miller, Sr., to perform an act of sexual intercourse with A.M., age 5; Count III, child molesting, a Class B felony, by aiding Berry Altmeyer to perform an act of sexual intercourse with A.M., age 5; Count IV, child molesting, a Class B felony, by aiding Ralph A. Miller to perform an act of sexual intercourse with A.M., age 5; Count V, incest, a Class D felony, by aiding Michael Miller, Sr., to engage in sexual intercourse with A.M., his stepdaughter; Count VI, incest, a Class D felony, by aiding Ralph A. Miller to perform an act of sexual intercourse with A.M., his step-grandchild; Count VII, incest, a Class D felony, by aiding Michael Miller, Sr., to engage in sexual intercourse with A.M., his stepchild; Count VIII, confinement, a Class C felony, by confining A.M., age 4, her grandchild; Count IX, confinement, a Class C felony, by confining A.M., her grandchild; Count X, battery, a Class D felony, by striking the hand of A.M. with a knife; and Count XI, battery, a Class D felony, by touching A.M.'s finger with a burning cigarette. Annabel was convicted by the Pike Circuit Court in a trial without a jury in Count I of the lesser included offense of attempted child molesting; in Count III, guilty of the lesser included offense of attempted child molesting; in Counts VIII and IX, guilty as charged; Counts V, VI and VII were dismissed before trial, and she was acquitted on Counts IV, X and XI. She was sentenced to 10 years, four suspended on each of Counts I and III; she was sentenced to 5 years on each of Counts VIII and IX. All sentences were ordered to be served concurrently. From these sentences she appeals.
A.M. was born on April 15, 1975. Her natural mother is Kathleen Strain. Her father is Michael Miller, Sr., who is in his thirties. Her grandparents are Ralph Miller and Annabel Miller, who are in their sixties. Berry Altmeyer who is about thirty-seven, is the son-in-law of Annabel. 1 These people all lived with each other at one time or another, and together with other children of the group. Annabel had physical custody of A.M. Michael, Ralph and Berry were all charged in separate informations with molesting A.M. by having sexual intercourse with her over a period of three or four years. The essence of all of the charges against Annabel is that she aided those defendants to commit their offenses. The State claims that all four adults participated in sex acts, in groups and in pairs, or singularly, which included the above charged molestations.
Other facts will be developed as relevant to the issues.
Annabel presents four issues for review as follows:
I. Whether the trial court erred in admitting the video taped statement of the victim into evidence.
II. Whether the trial court erred in excluding from evidence the medical report of Dr. Calderazzo, based upon the Rape Shield Statute.
III. Whether the trial court erred in finding Annabel Miller guilty because there was insufficient evidence to support the verdict.
IV. Whether the trial court erred in finding Annabel Miller guilty because the evidence failed to establish venue and the specific dates of the offenses charged.
DISCUSSION AND DECISION
Annabel was formally charged on May 25, 1984, after which the initial hearing was conducted on June 4, 1984. On November 9, 1984, the State filed a petition under IND. CODE 35-37-4-6 to admit into evidence the video taped statements of A.M., which were material. The State alleged that A.M. was 9 years-old, and that A.M.'s participation in the trial would be traumatic for her.
IND. CODE 35-37-4-6, as enacted in 1984, provides as follows:
"Admissibility of statement of a child of ten or under in certain criminal actions.--
(1) Child molesting (IC 35-42-4-3).
(2) Battery upon a child (IC 35-42-2-1(2)(B)).
(3) Kidnapping (IC 35-42-3-2).
(4) Confinement (IC 35-42-3-3).
(1) Is made by a child who was under ten (10) years of age at the time of the statement;
(2) Concerns an act that is a material element of an offense listed in subsection (a) that was allegedly committed against the child; and
(3) Is not otherwise admissible in evidence under statute or court rule; is admissible in evidence in a criminal action for an offense listed in subsection (a) if the requirements of subsection (c) are met.
(c) A statement described in subsection (b) is admissible in evidence in a criminal action listed in subsection (a) if, after notice to the defendant of a hearing and of his right to be present:
(1) The court finds, in a hearing:
(A) Conducted outside the presence of the jury; and
(B) Attended by the child;
that the time, content, and circumstances of the statement provide sufficient indications of reliability; and
(2) The child:
(A) Testifies at the trial; or
(B) Is found by the court to be unavailable as a witness because:
(i) A psychiatrist has certified that the child's participation in the trial would be a traumatic experience for the child;
(ii) A physician has certified that the child cannot participate in the trial for medical reasons; or
(iii) The court has determined that the child is incapable of understanding the nature and obligation of an oath.
(d) If a child is unavailable to testify at the trial for a reason listed in subsection (c)(2)(B), a statement may be admitted in evidence under this section only if there is corroborative evidence of the act that was allegedly committed against the child.
(e) A statement may not be admitted in evidence under this section unless the prosecuting attorney informs the defendant and the defendant's attorney of:
(1) His intention to introduce the statement in evidence; and
(2) The content of the statement;
within a time that will give the defendant a fair opportunity to prepare a response to the statement before the trial. [P.L. 180-1984, Sec. 1.] "
The record shows that a jury had not been waived at the time the petition was filed. The petition was set for hearing on December 5, 1984, and notice of that hearing was given to counsel for Annabel. Thereafter, on November 26, 1984, the State, by a child welfare caseworker and a police officer, interrogated A.M. on video tape. No notice of that taping session was given to either Annabel or her attorney, nor were they present. That tape is the one in issue here. It was the principal subject of the December 5 hearing and was later admitted into evidence at the trial. It is the sole evidence that linked Annabel to any of the acts of child abuse. No transcript of the tape is in the record, but we have viewed it. The tape shows the following.
A.M. testified in somewhat narrative form that Annabel, on numerous occasions, took her to the bedroom of Annabel's home where A.M. lived, pulled down her panties, told Michael and Ralph to pull down their pants, held A.M., pulled her legs apart, and the men, alternatively, got on top of her. A.M. could see their bare sexual organs, but it was not clear if they penetrated her. At such times, Annabel put vaseline on A.M.'s private parts. Annabel, on one occasion, tried to put a baby bottle in her vaginal tract, and once brought a dog to have sex with A.M., which act failed. The dog licked the other participants between their legs in her presence. A.M. escaped Annabel on one occasion. Annabel once burned A.M. with a cigarette, and on another occasion rapped her finger with a knife, telling A.M. not to tell of the activities. These acts commenced near A.M.'s fifth birthday and continued over a course of time.
A.M. was present at the December 5 hearing but remained outside the court room. The testimony reflected that A.M. was under the age of ten years. A psychiatrist testified that an appearance at trial would be a traumatic experience for the child. The evidence corroborating the acts of molestation given at that hearing was other prior similar statements and a history contained in a psychiatric report which was elicited from A.M. These included statements and histories by other female children in the family that had been molested.
The psychiatrist testified that A.M. was capable of understanding the oath. The trial court interrogated A.M. on the record on the matter of telling the truth. A.M. knew right from wrong, and knew it was wrong to lie. She knew she could get into trouble for lying. She also understood the nature of the proceeding. No questions were asked of A.M., nor was any request made to the court for permission to ask A.M. any questions by Annabel's attorney. The court found that A.M. was unavailable as a witness in the trial because such participation would be a traumatic experience for the child. The court found that the prior statements provided a sufficient indication of reliability and ordered the November 26, 1984, statement admitted into evidence.
Annabel attacks the admissibility of the video tape on four grounds. We will treat them in order.
A. Constitutionality. Annabel argues that the admission of the video tape in lieu of A.M.'s actual testimony at trial deprived her of fundamental rights under the sixth amendment to the Constitution of the United States...
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