Sanchez v. State

Decision Date13 December 1996
Docket NumberNo. 50S03-9508-CR-00928,50S03-9508-CR-00928
Citation675 N.E.2d 306
PartiesRaul SANCHEZ, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Terry E. Johnston, Seven Napoleon, Valparaiso, for Appellant.

Pamela Carter, Attorney General, Meredith J. Mann, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Justice.

Defendant Raul Sanchez appeals his conviction for child molestation, a Class C felony. The Court of Appeals determined that there was sufficient evidence to support the conviction. Nevertheless, the Court reversed the conviction because it concluded that the trial court's failure to instruct the jury on the probative value of evidence relating to a polygraph examination was reversible error. Sanchez v. State, 650 N.E.2d 734 (Ind.Ct.App.1995). We grant transfer to examine this issue.

After her parents' divorce, seven-year-old A.W. visited her mother's home on weekends. A.W.'s mother, M.W., lived with the defendant. During each of approximately five visits that A.W. made to the residence shared by M.W. and Sanchez, Sanchez molested A.W. Sanchez would direct A.W. to lie on a couch, and then he would place his hand down the front of A.W.'s pants, inside of her underwear. These incidents occurred while M.W. was in another room or in the shower. A.W. told her mother about the incidents, but to no avail. A.W. eventually told her father. He contacted authorities. The defendant was prosecuted and convicted of child molestation.

DISCUSSION

The State contends that the Court of Appeals erred when it reversed Sanchez's conviction and ordered a new trial based upon the trial court's failure to instruct the jury regarding polygraph evidence. As part of its case, the State offered the results of a polygraph examination taken by Sanchez. Prior to trial, Sanchez had agreed to take the polygraph exam and had executed a stipulation agreeing to permit introduction of the polygraph results at trial. The trial court admitted evidence regarding this polygraph exam.

There are four prerequisites which must be met before the trial court may admit polygraph test results: 1) that the prosecutor, defendant, and defense counsel all sign a written stipulation providing for the defendant's submission to the examination and for the subsequent admission at trial of the results; 2) that notwithstanding the stipulation, the admissibility of the test results is at the trial court's discretion regarding the examiner's qualifications and the test conditions; 3) that the opposing party shall have the right to cross-examine the polygraph examiner if his graphs and opinion are offered in evidence; and 4) that the jury be instructed that, at most, the examiner's testimony tends only to show whether the defendant was being truthful at the time of the examination, and that it is for the jury to determine the weight and effect to be given such testimony. Davidson v. State, 558 N.E.2d 1077, 1085 (Ind.1990). Sanchez did agree to the admissibility of the polygraph evidence before trial by signing a stipulation, and the Court of Appeals correctly concluded that the stipulation was valid. Sanchez, 650 N.E.2d at 736. Therefore, the first requirement was satisfied. Also, we agree with the Court of Appeals' conclusions that requirements two and three were met. Sanchez, 650 N.E.2d at 736. Thus, we focus solely on the question of the jury instruction of requirement four.

Prerequisite four requires the jury to be instructed that, "at most, the polygraph examiner's testimony tends only to show whether the defendant was being truthful at the time of the examination, and that it is for the jury to determine the weight and effect to be given such testimony." Davidson v. State, 558 N.E.2d at 1085. Previously, we have stated:

[I]f [evidence of a polygraph exam] is admitted the trial judge should instruct the jury that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant [was or] was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.

Hare v. State, 467 N.E.2d 7, 16 (Ind.1984) (citing Owens v. State, 176 Ind.App. 1, 373 N.E.2d 913 (1978); Arizona v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962)).

Sanchez did not tender an instruction limiting the jury's use of polygraph evidence as anticipated by Hare, nor did he object to the trial court's failure to give such an instruction. Generally, a defendant who fails to object to the court's final instructions and fails to tender a competing set of instructions at trial waives a claim of error on appeal, unless the error identified rises to the level of fundamental error. Burton v. State, 526 N.E.2d 1163, 1165 (Ind.1988). Sanchez argues that, despite his failure to tender an instruction on the subject, and his failure to object to the absence of the instruction at trial, he has not waived the issue. He contends that his claim of error is not waived because the trial court committed fundamental error in failing to give a Hare-type instruction to the jury.

In effect, the Court of Appeals agreed with Sanchez's argument when it determined that "[b]ecause the admission of polygraph evidence is generally disfavored, the failure to give a limiting instruction as to the use of the evidence cannot be harmless." Sanchez, 650 N.E.2d at 736. As a result of its conclusion that the absence of a Hare-type instruction cannot be harmless, the court reversed Sanchez's conviction and ordered a new trial.

The Court of Appeals has misconstrued our ruling in Hare. In Hare, we reviewed a case in which, like here, polygraph evidence was admitted as a result of a valid stipulation, but without the proper limiting instruction. The defendant in Hare tendered a final instruction designed to limit the jury's application of the polygraph examiner's testimony. The trial court, however, refused the tendered instruction. This Court determined that the trial court should have given the defendant's tendered instruction. Nevertheless, we held that "errors in the giving and refusing of instructions are harmless where a conviction is clearly sustained by all of the other evidence presented before the jury." Hare, 467 N.E.2d at 16. Because the Hare conviction was supported by sufficient evidence of the defendant's guilt, this Court found that the error in failing to give the tendered instruction was harmless. Id. In light of Hare, the Court of Appeals' generalized statement, that "the failure to give a limiting instruction as to the use of [polygraph] evidence cannot be harmless[,]" goes too far.

We agree with Judge Staton's dissent that Sanchez waived his claim of error by not objecting to the jury instruction or tendering his own instruction at trial. As Judge Staton notes: "An error in instructing the jury will not circumvent our procedural rules [and amount to fundamental error] unless the error is blatant, and the potential for harm is substantial and appears clearly on the face of the record." Sanchez, 650 N.E.2d at 737 (Staton, J., dissenting) (citing Blackmon v. State, 455 N.E.2d 586, 590 (Ind.1983)). The trial court gave a preliminary and a final instruction to the jury identifying their exclusive role in determining the weight and credibility of the evidence, including evidence from any and all witnesses. Also, the record provides sufficient evidence upon which the jury could base its judgment. The victim testified clearly and unequivocally that Sanchez touched her genital area, and this testimony was consistent with prior statements she had made to her father. The potential for harm in this case is not so substantial as to justify an override of our procedural rule requiring a timely action by the defendant.

Sanchez raises additional issues which were not addressed by the Court of Appeals because its decision to reverse the trial court and remand for a new trial rendered those issues moot. Because we vacate the decision of the Court of Appeals, we will also review those unaddressed issues which Sanchez raised in his original appeal. Kimberlin v. DeLong, 637 N.E.2d 121, 123 (Ind.1994), cert. denied, --- U.S. ----, 116 S.Ct. 98, 133 L.Ed.2d 53 (1995). Consolidated, those issues are (1) whether Sanchez was competent to participate in his trial, and (2) whether Sanchez suffered ineffective assistance of counsel.

Sanchez claims that he was not competent to participate in trial because he was taking pain medication. Shortly before his trial, Sanchez underwent surgery on his shoulder. His physician prescribed pain medication, and Sanchez used this pain medication during his trial. He now argues that this medication interfered with his ability to concentrate, both during his own testimony and during the testimony of witnesses. During trial, Sanchez did not advise the court of his alleged disability.

Sanchez first raised the issue of his competency to participate in a Motion to Correct Errors, claiming that going to trial while taking the pain medication denied him a fair trial, due process of law, and his Sixth Amendment right to effective representation. The trial court held an evidentiary hearing on the Motion to Correct Errors at which the defendant and his mother testified. The court reviewed audio tapes of the jury trial and concluded that:

[T]here is no indication that the Defendant was under the influence of a narcotic that would have prevented him from aiding in his own defense. As a matter of fact, the responses that he frequently volunteered were rather remarkable as to the details that he could recall, which, although gratuitous, were favorable to his case in chief.

...

The court could not recall from its independent [sic] recollection that there was any evidence of the Defendant having difficulty staying awake at the time of the trial. Having...

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