Modesitt v. State

• Decision Date: 26 September 1991
• Docket Number: No. 11S04-9109-CR-755,11S04-9109-CR-755
• Citation: 578 N.E.2d 649
• Parties: Jimmy MODESITT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 649

578 N.E.2d 649

Jimmy MODESITT, Appellant, v. STATE of Indiana, Appellee.

No. 11S04-9109-CR-755.

Supreme Court of Indiana.

Sept. 26, 1991.

David O. Thomas, Public Defender, Brazil, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

KRAHULIK, Justice.

Defendant-Appellant Modesitt seeks transfer from the Court of Appeals' memorandum decision affirming his convictions by jury in the Clay Superior Court on three felony counts of child molesting and one felony count of criminal deviate conduct. 565 N.E.2d 1178. The thrust of Modesitt's petition to transfer is that the Court of Appeals' memorandum decision contravenes ruling precedent of this Court as expressed in Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, and its progeny or, in the alternative, that such memorandum decision followed ruling precedent as set forth in Patterson and the subsequent cases but the rule enunciated in Patterson is in need of modification. We accept transfer for both reasons and, in so doing, vacate the memorandum decision of the Court of Appeals, reverse Modesitt's convictions, and remand this case for a new trial.

The facts necessary for our discussion of the Patterson issues are that Modesitt was charged with three counts of child molesting and one count of criminal deviate conduct for allegedly having molested the 11-year-old daughter of his live-in girlfriend while the three of them lived in a mobile home trailer in Brazil, Indiana. At trial the prosecutor called, as his first three witnesses, the victim's mother, a welfare caseworker, and a psychologist, respectively. All three witnesses were permitted to testify, over objection, as to what the victim had told each of them concerning what Modesitt had done to her.

The mother testified that the victim first told her of the molestations after the two of them had separated from Modesitt. The mother was permitted to testify in detail concerning the victim's description of several varied and distinct instances of molestation involving breasts, vagina and penis that occurred over a two-year period immediately prior to the separation.

The second witness, a welfare caseworker, testified over objection as to what the victim had told her that Modesitt had done. The descriptions the victim gave to her both overlapped and varied in specific detail from what the victim had told her mother.

The third witness, a psychologist, testified in a videotaped deposition as to what the victim had related to her concerning these same, and additional, instances of sexual molestation. Also, the State was permitted to introduce a letter signed by the psychologist which repeated the victim's recounting of the instances of sexual molestation.

Only after the testimony of these three witnesses was completed was the victim called to testify. A review of her evidence corroborates a majority of the acts of molestation previously testified to, but does not corroborate each of the alleged acts. Additionally, the victim was not specifically asked whether she made the statements referenced by the three previous witnesses or whether those statements were, in fact, true.

I. Was the Patterson Rule Abused?

Modesitt argues that the prosecutor fundamentally abused the Patterson rule, violated his presumption of innocence, and impermissibly prejudiced the jury by repeating the victim's charges with numerous hearsay statements made through the mother, the caseworker, and the psychologist, when the victim was available to and did testify after these three witness, but did not corroborate all of the hearsay statements. Furthermore, Modesitt argues that the State failed to lay the necessary Patterson foundation by neglecting to ask the victim whether she remembered making the declarations to the three Patterson witnesses. We agree.

In 1975 this Court, in the much-applauded and equally criticized opinion of Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, held that prior out-of-court statements, not under oath, were admissible as substantive evidence if the declarant was present and available for cross examination at the time of the admission of such statements. The reasoning utilized by the Court for the admission of such statements was that the truthfulness of the out-of-court assertions rested on the credibility of persons present and subject to cross examination concerning such statements. Within three years of rendering the Patterson opinion, this Court, in Samuels v. State (1978), 267 Ind. 676, 372 N.E.2d 1186, stated that "the rule drawn from Patterson may well be in need of reconsideration. To the extent that it has, on some occasions, been used to support the admission of out-of-court statements as a mere substitute for available in-court testimony, it has been misapplied." 372 N.E.2d 1186. Further, in Stone v. State (1978), 268 Ind. 672, 377 N.E.2d 1372, this Court quoted the Samuels language as condemning unjustifiable extensions of the Patterson rule and warned that "the use of prior statements of a trial witness by the proponent of the witness in lieu of available and direct testimony of such witness will not longer be sanctioned." 377 N.E.2d at 1375. Four years later in Lewis v. State (1982), Ind., 440 N.E.2d 1125, this Court was called upon to answer whether it was permissible to allow Patterson statements to be introduced by three witnesses who were called after the declarant-victim had already testified and been cross examined about the subject matter of these statements. We held, in affirming the convictions, that "the key question in determining whether or not an abuse of the Patterson rule has occurred is whether the State has submitted evidence as to the relevant factual events in the case by directly examining (and thereby making him available for cross examination) the witness-declarant about those facts." 440 N.E.2d at 1130. We further held that there was no improper application of the Patterson rule where the declarant of the prior statements

had already withstood both direct and cross examination. The content of her prior statements, admitted through the three witnesses' recitations of her statements, related to those same facts to which she herself had already testified and about which she was or could have been cross examined. Thus, the Patterson rule was not used to admit substantive evidence in lieu of available and direct testimony of [the] witness' (emphasis added.) Stone, supra, 268 Ind. at 678, 377 N.E.2d at 1375. There was no violation of the hearsay rule.

Id. (Emphasis supplied)

As can be seen from the above cases, the rationale for the Patterson rule is that truthfulness is safeguarded by having the declarant available for cross examination as to the out-of-court statements. Here, by putting into evidence the victim's out-of-court charges against Modesitt by three separate and repetitive witnesses prior to calling the victim herself, the prosecutor effectively precluded Modesitt from effective cross examination of these charges. The jury first heard and was allowed to consider, as substantive evidence, the victim's statements made to her mother many months prior to trial. At this point, Modesitt had not yet had an opportunity to cross examine the victim herself concerning these charges and, obviously, he could not cross examine the mother concerning the truthfulness of the charges which had been leveled by her daughter. This lack of ability to cross examine the veracity of the statements continued through the repetitive testimony of the welfare caseworker and the psychologist. Prior to putting the victim on the stand, the victim's veracity had been, in essence, vouchsafed by permitting the three witnesses to repeat the accusations of the victim. We believe that immediate cross examination is the most effective, and that delayed cross examination is the least effective. Here, three witnesses told the victim's story before the victim herself testified. We hold, as did the Court of Appeals in Stone v. State (1989), Ind.App. 536 N.E.2d 534, that we could not say that the drumbeat repetition of the victim's original story prior to calling the victim to testify did not unduly prejudice the jury which convicted Modesitt.

Additionally, Modesitt claims that the hearsay statements testified to by the three witnesses were erroneously admitted because of a lack of corroboration and foundation by the victim. Modesitt argues that some of the testimony elicited through the three witnesses was not corroborated by the declarant as required by several Court of Appeals and Supreme Court cases. Additionally, Modesitt argues that a proper foundation for the admission of the statements was not laid as required by Lambert v. State (1989), Ind., 534 N.E.2d 235, because the victim was not asked whether she remembered making the hearsay statements to the three witnesses or whether such statements were, in fact, true. We do not decide these two questions because we have determined that the drumbeat repetition of the Patterson statements prior to calling the victim herself precluded direct, immediate cross examination of the statements and constitutes error requiring reversal.

II. Should Patterson Be Overruled?

Modesitt argues that the rule, as first announced in Patterson, and as interpreted by the courts thereafter, should be overruled. We agree.

The objective motivating the adoption of the Patterson rule remains valid. The Court's intention in Patterson was to create a rule that would allow the trier of fact to be introduced to relevant evidence that retained the necessary indicia of reliability. In 1975, when Patterson was decided, the majority of jurisdictions in the United States adhered to the orthodox view regarding admission of prior statements. This position prohibited admission of prior statements of any nature for any purpose other than impeachment. Indiana was one of the first...