Pennycuff v. State
| Decision Date | 18 April 2001 |
| Docket Number | No. 49S02-0104-CR-213.,49S02-0104-CR-213. |
| Citation | 745 N.E.2d 804 |
| Parties | Terry PENNYCUFF, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Jodi Kathryn Stein, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
A jury found appellant Terry Pennycuff guilty on two counts of incest, three counts of child molesting, and one count of sexual misconduct with a minor for carrying on a sexual relationship with his teenage daughter over a three-year period. The Court of Appeals ordered a new trial, holding that Pennycuff's lawyer was ineffective for failing to object to evidence that violated Pennycuff's rights under Doyle v. Ohio.1 Pennycuff v. State, 727 N.E.2d 723 (Ind.Ct. App.2000).
We conclude that the caselaw points to a different outcome.
The State's first witness at trial was Pennycuff's daughter, T.P. (R. at 225.) T.P. described in detail numerous sexual advances by, and contacts with, her father. (R. at 227-38, 244-54, 257-58.) Among other things, T.P. accused her father of videotaping and photographing her in the nude on two separate occasions. (R. at 233-34, 246.) She testified that her father gave her money after some of their sexual encounters. (R. at 228, 234, 244.) She also said that some of these incidents occurred at home while her brother was in another room, (R. at 245), although no one besides herself actually witnessed any of the occurrences.
T.P. testified that Pennycuff had written words and initials on certain pages of a calendar to memorialize some of these incidents. (R. at 250-51, 253-54.) For example, she testified that early on Christmas morning in 1995, she had intercourse with her father before they woke her brother and sister, and that Pennycuff entered an "I" in the calendar to document the occurrence. (R. at 252-53.)
T.P. explained that she kept silent about her father's misconduct because he told her she could be jailed for prostitution, and that he would kill them both if she spoke. (R. at 248-49.) She eventually disclosed what had been going on because her father, by then divorced from T.P.'s mother, described his new girlfriend's daughter as "cute." (R. at 260.) T.P. became concerned for the safety of that child and of her own eight-year-old sister. (Id.) T.P. testified that she got along well with this new girlfriend. (R. at 256.) Regarding her relationship with her father, T.P. testified:
Q. [T.P.], how do you feel about your dad right now?
A. Because I want him to pay for what he did to me. I want him to stop lying. I wish he'd tell the truth.
(R. at 263.)
On cross-examination, the defense methodically sought to undermine T.P.'s credibility by delving into T.P.'s relationship with each of her parents. T.P.'s father first had inappropriate sexual contact with her in May 1993. (R. at 226.) When her parents separated in October 1994, however, T.P. elected to stay with her father (although her brother and sister lived with their mother) because she and her mother did not get along and even physically fought at times. (R. at 270, 280.) Appellant Pennycuff got custody of T.P. and her brother in April 1995, but T.P. moved back in with her mother during the summer of 1995 to avoid further molestation by her father. (R. at 283.) However, T.P., who admitted to being "rebellious," (R. at 270), again quarreled with her mother, (R. at 284-85), and moved back in with her father in the fall of 1995, (R. at 286). Subsequently, T.P.'s relationship with her mother improved, although T.P. still did not confide in her mother about the molestation for another month or two. (R. at 296-97.)
After establishing this sequence of events, defense counsel asked T.P., "During this period of time—you—you have always kind of just vacillated between your mother and father, whichever—depending upon whichever person kind of treated you the best; is that right?" (R. at 299-300.) T.P. replied, "Yes." (R. at 300.) Defense counsel went on to establish that four months after T.P.'s accusations, T.P. paged her father because she and her mother were fighting. (Id.) T.P. asked her father to come over to her mother's house where T.P. was staying, which he did. She asked her father to take her home with him, but he declined because he was under a no contact order. (R. at 301-02.)
The defense also attacked T.P.'s claim that her father paid her for sex by eliciting admissions that T.P. helped with housework, (R. at 308), and that he had given her money at times before the molestation began, (R. at 307).
The State's next witness was T.P.'s brother, who is a year and a half younger than she. (R. at 225, 323.) He testified that Pennycuff sometimes went into another room with T.P., and ordered the boy to stay in the living room. (R. at 326-27.) He also testified that, although he had no knowledge of any sexual relationship between Pennycuff and T.P., Pennycuff had sometimes given T.P. money. (R. at 327.)
On cross-examination, the defense sought to elicit testimony from the brother that T.P. disliked their father's new fiancée, Jane, and had threatened to ruin the planned wedding. (R. at 331.) The boy acknowledged that T.P. had expressed dislike for Jane, but he denied having heard T.P. make any such threat. (Id.)
The State next called Marion County Sheriff's Department Detective Sergeant Carmie Godan. (R. at 333.) Detective Godan testified about T.P.'s demeanor when she gave her initial statement. (R. at 336.) Detective Godan described T.P. as confused and embarrassed, and said that T.P. blamed herself for the relationship. (Id.) Godan also testified that, during a search of Pennycuff's apartment, police found the calendar that T.P. described. (R. at 340.)
On cross-examination, Godan conceded that during their search the police found no videotape or photographs showing T.P. nude. (R. at 355-56.) Defense counsel also established that Pennycuff had no advance warning of the search. (R. at 358.)
The State then called T.P.'s mother, who testified that the night T.P. disclosed what Pennycuff had done, T.P. was upset and afraid of going to jail. (R. at 390.) She said Pennycuff had given T.P. money at times and that, when asked, he said he had paid T.P. for helping with various household chores. (R. at 391-92.)
On cross-examination, T.P.'s mother admitted that before T.P. accused Pennycuff of sexual misconduct, the mother herself had twice broached the subject of molestation. (R. at 397-98.) The first time was during custody negotiations, when the mother asked T.P. if her father had ever touched her and T.P. responded that the mother was crazy for asking such a question. (Id.) Then, about a year before her divorce, the mother asked T.P. in the presence of a therapist whether there had been any molestation, and T.P. said no. (R. at 398.)
The State's final witness was a psychiatric social worker, (R. at 405), who testified about T.P.'s demeanor during their meetings, (R. at 407), and said that children who are sexually abused by a family member rarely come forward immediately, (R. at 408).
When the State rested, then, the testimony of T.P. stood as the centerpiece of its case. Pennycuff's counsel managed to plant the seeds for a defense focused on T.P.'s credibility.
To do this, the defense presented two witnesses: Pennycuff and his second wife Jane (whom he married the same day that he was later served with the search warrant based upon T.P.'s accusations). (R. at 417-18.) Jane testified that she and Pennycuff had accelerated their wedding date, and married in Louisville rather than locally, because of T.P.'s threats to ruin the wedding. (R. at 418-19.) She also testified about the lock box in which the calendar was found:
Q. And the lock box. Did [Detective Godan] ask [Pennycuff] for the keys to this box?
A. I don't know if it was her, but one of the detectives ask him for the key.
A. He told them he had nothing to hide. That they could search his apartment all they wanted to, that he had nothing to hide.
(R. at 421-22.)
On cross-examination, Jane admitted that she got along well with T.P. and that T.P. had never directly told Jane that she disliked Jane or opposed her marriage to Pennycuff. (R. at 427.)
Pennycuff then testified, to refute his daughter's allegations. (R. at 438.) He began by saying he had never been arrested prior to these events, and had always maintained employment and supported his family. (R. at 440.) He testified he had paid his daughter for helping around the house, but never had a sexual relationship with her or paid her for sex. (R. at 444.) Credibility and cooperation were part of Pennycuff's theme on direct examination:
Q. The night that the detectives came into your home and executed a search warrant, that same day did Detective Godan take a statement from you?2
A. Yes, she did.
Q. Did she ask you about any of these allegations that you've heard about at the trial here?
A. Yes, she did. She sat at the table and did a—a little cassette tape.
Q. And what did—
A. And see if I was going to do one. And I was having a sugar attack.3 I—I was in and out, kind of, you know, shaky and dizzy. I had some stuff. I don't remember it happening. Q. All right. But you did cooperate and you did give a statement; is that correct?
A. No, I told her I had nothing to hide in my apartment.
Q. And you—and you told her—and you answered every question she asked you; is that correct?
A. Yes, I did.
Q. What did—what did you tell her that day...
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