Pierce v. State, 54S01-9511-CR-01319

Citation677 N.E.2d 39
Case DateFebruary 28, 1997
CourtSupreme Court of Indiana

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677 N.E.2d 39
James A. PIERCE, Appellant (Defendant below)
STATE of Indiana, Appellee (Plaintiff below).
No. 54S01-9511-CR-01319.
Supreme Court of Indiana.
Feb. 28, 1997.

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Sidney J. Tongret, Public Defender's Office, Montgomery County, Crawfordsville, for Appellant.

Pamela Carter, Attorney General of Indiana, and Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee.


BOEHM, Justice.

A jury convicted defendant James A. Pierce of criminal confinement 1 and child molesting, 2 both class C felonies. The trial court sentenced Pierce to the maximum term of eight years for each offense enhanced by twelve years on each for being a habitual offender, 3 served consecutively, for an executed term of forty years. In this appeal, Pierce challenges the admissibility of testimony of witnesses reporting the child victim's statements and also the admissibility of a videotape of an interview with the victim. Pierce asserts that the procedures governing the admission of out-of-court statements by "protected persons" were not followed in this case and that his right under the Indiana Constitution to confront his accuser was violated. We find no reversible error but accept the invitation to give guidance to trial courts as to procedures to be followed under IND.CODE § 35-37-4-6.

Pierce contended below, and the State conceded, that it was error to impose consecutive habitual offender enhancements. The Court of Appeals affirmed the convictions but remanded for a sentencing order reducing Pierce's sentence to twenty-eight years. Pierce v. State, 653 N.E.2d 1072 (Ind.Ct.App.1995) (mem.). We granted transfer and now affirm the convictions.

Factual & Procedural History

On the morning of November 18, 1993, three-year-old K.D. and her mother went to the Wal-Mart store in Crawfordsville to shop for Christmas presents. Upon arriving at the store K.D. separated from her mother to look at toys. While stocking shelves in the store that morning, Wal-Mart employee Cynthia Robinson had a two to five minute conversation with K.D. about toys, among other things, and then K.D. "ran off." A few minutes later, Robinson saw defendant Pierce walk up to K.D. and say "come on, come on." As the two walked off holding hands, Robinson assumed that Pierce was K.D.'s father. At approximately 10 a.m. another Wal-Mart employee pricing toys, Teresa Latrell, saw Pierce leave the same aisle with K.D. in a hurried fashion and walk towards the hardware department. A few minutes later Robinson heard the mother calling K.D.'s name and told her that K.D. had just left the toy department with her father. The mother responded that K.D.'s father was not at the store and she, Robinson, Latrell, and another employee immediately began a search for K.D.

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After about fifteen minutes, Wal-Mart employees decided to call a "Code Adam," an emergency procedure requiring that the store's doors be locked until a missing child is found. In accordance with the Code Adam, all employees were given a description of K.D. and a more thorough search for her ensued. While the search was in progress, Michael Zimmerman, a Wal-Mart auto mechanic, saw Pierce drive up near the auto repair garage in the rear of the store and get out of his car with K.D., whom Zimmerman recognized from the Code Adam description. Auto service manager Kevin Jarvis, who opened the auto shop door to let Pierce and K.D. back into the store, observed that K.D.'s face "was tear stained like she had been crying." While Jarvis was attending to K.D., Pierce left the store through the rear door, drove around to the front of the store, parked, and went to the courtesy desk.

Meanwhile Margaret Bonebrake, a merchandise assistant in the auto department, brought K.D. from the auto department to the front of the store where K.D.'s mother was waiting. As they walked together, Bonebrake asked K.D. how she got outside and K.D. stated that "the man took her." Bonebrake also observed that K.D. appeared upset and might have been crying. After K.D. was reunited with her mother at the service desk, K.D., her mother and Robinson went into a private office in the front of the store. Robinson testified that when the three were together the mother "asked [K.D.] where she was at and she said a man took her outside." At some unspecified point after K.D. returned to the store, K.D. told her mother that a man "took her out into his car ... undid her belt and checked to see if she was wet." It is unclear from the record whether K.D. and her mother were ever alone in the private office that morning and, if so, whether they discussed anything during that time.

When the Code Adam procedure was implemented, Officer Sam Dickerson, Sergeant Ron Newlin, and Sheriff Dennis Rice of the Montgomery County Sheriff's Department were dispatched to Wal-Mart to investigate K.D.'s disappearance. Dickerson was the first officer to speak with K.D. and her mother, both of whom were still waiting in the private office when he arrived. 4 Dickerson observed that K.D. was crying and appeared "pretty excited." Dickerson began questioning the mother first, but K.D. interrupted them and told Dickerson that "she met a man in the store, the man took her out to his car and while inside the car the man asked her if she liked toys...." Dickerson further testified to K.D.'s account: "[A]t that point he [Pierce] told her he was going to check and see if her pants were wet, he unbuckled her pants and inserted his hand." In describing the incident to Dickerson, K.D. made gestures with her hand outside her clothes in a downward motion to the front part of her lower torso. Sheriff Rice arrived on the scene a few minutes later. Rice also interviewed K.D. and her mother in a conference room in the back of the store. Rice noticed that K.D. appeared "somewhat scared" and "very excited." K.D. told Rice that a man undid her belt and "checked to see if I peed my pants." In describing the incident to Rice, K.D. unfastened her belt and stuck her hand inside her pants.

At approximately the same time K.D. and her mother were being interviewed by Rice and Dickerson, Sergeant Newlin interviewed Pierce at the courtesy desk. Pierce told Newlin that K.D. had followed Pierce to his car and that he took her back to the store by driving her to the auto service department. Pierce agreed to go with the officers to the local sheriff's department to answer more questions about the incident. During the ride to the police department Pierce volunteered the same story to Officer Dickerson.

Pursuant to Sheriff Rice's recommendation, the mother took K.D. to a doctor for a physical examination. The exam revealed no injuries to K.D. After the doctor's visit, the mother took K.D. to the police department for a videotaped interview with Rice. The interview began shortly after 2:30 p.m. that same day with the mother present. On November

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29, 1993 Pierce was charged with confinement and child molesting. After release on bail, Pierce disappeared for six weeks and was the subject of an extensive manhunt that garnered national television publicity. On January 3, 1994 Pierce turned himself in to authorities. On September 2, 1994 a jury convicted Pierce on both counts. The trial court, after considering aggravating and mitigating circumstances, found that Pierce was a habitual offender and sentenced him to the maximum term for both offenses. Pierce appealed. We have jurisdiction under Indiana Appellate Rule 11(B)(3).

Issues Presented

Pierce presents a number of questions for decision that we consolidate and restate as follows:

I. Did K.D.'s statements at Wal-Mart to her mother and the police officers and the videotaped interview exhibit sufficient indications of reliability so as to satisfy the "protected person" statute, IND.CODE 35-37-4-6?

II. Was K.D. "available for cross-examination" at the combined competency and admissibility hearing as required by the protected person statute?

III. Even if the trial court's rulings complied with the protected person statute, was Pierce deprived of his right under the Indiana Constitution to meet witnesses face to face?

This case raises issues under IND.CODE § 35-37-4-6, which permits admission of out-of-court statements of "protected persons" under certain conditions. The trial court relied on this statute to admit the only direct evidence that a molestation occurred--first, K.D.'s statements at Wal-Mart to her mother and the police officers relating what Pierce had allegedly done to K.D. and, second, the videotaped interview with K.D. later that day. Put concisely, Pierce claims the statute was not followed and, even if it was, Pierce contends the statute is inconsistent with the Indiana Confrontation Clause. 5

I. Statements Admitted Under the Protected Person Statute

Pierce challenges the trial court's decision to admit statements K.D. made at Wal-Mart to her mother, Officer Dickerson and Sheriff Rice. Pierce also contests the admissibility of the videotaped interview with K.D. If admitted and credited, this evidence shows that Pierce took K.D. to his car, unbuckled her belt, and put his hand down her pants. The testimony and videotape are hearsay, and therefore generally inadmissible, because the disputed statements were all made outside the courtroom and were offered to prove that Pierce molested K.D. The trial court relied on the "protected person" statute to admit each of these pieces of evidence.

A. Requirements for admissibility under the protected person statute.

The Legislature has created special procedures for introducing evidence that is "not otherwise admissible" in cases involving crimes against children and the mentally disabled. See IND.CODE § 35-37-4-6 (1993 & Supp.1994). 6 To admit evidence under the "protected person" statute, the court must make a number of findings in hearings conducted outside the jury's presence. The statement or videotape must be made...

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