Shaffer v. State, 67A01-9601-CR-12
| Decision Date | 27 November 1996 |
| Docket Number | No. 67A01-9601-CR-12,67A01-9601-CR-12 |
| Parties | Dennis SHAFFER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant-defendant Dennis Shaffer appeals his two convictions for Child Molesting,1 both Class C felonies. Specifically, Shaffer presents the following arguments: (1) the trial court erred by permitting the child abuse victims to testify in a smaller courtroom; (2) he was denied the effective assistance of counsel; and (3) the trial court improperly enhanced his sentence.
The evidence in the light most favorable to the verdict reveals that Shaffer's wife, Leah, babysat two sisters, eight-year-old D.K. and seven-year-old T.G., in the Shaffer's home. For several hours every day, Leah would leave the house to deliver newspapers while Shaffer stayed at home with the children. Sometime between April 1, 1993, and April 15, 1993, Shaffer molested D.K. and T.G. while his wife was delivering newspapers.
Shortly thereafter, D.K. and T.G. complained to their father about Shaffer molesting them. Based on their complaints, their father contacted Gerry Hoffa, a child abuse investigator in the Putnam County prosecutor's office. Hoffa then met with Shaffer and questioned him about D.K.'s and T.G.'s allegations. Near the end of the interview, Shaffer stated that he would admit to "touching" the girls if it would help resolve the matter. Record at 418-420.
On August 11, 1994, Shaffer was charged with two counts of child molesting, both class C felonies and one count of Child Molesting,2 a Class B felony. During a pre-trial conference, Shaffer agreed to permit D.K. and T.G. to testify in a smaller courtroom during the trial. Shortly before trial, however, Shaffer requested that the trial court not enforce this agreement. The trial court denied the request. When the State moved to allow the children to testify in a smaller courtroom during trial, Shaffer did not object and the trial court granted the State's motion.
During the trial on March 7 and March 8, 1995, the State presented the expert testimony of Ann Kelly Newton, a child sexual abuse counselor, who stated that approximately sixty-six percent of all girls are sexually abused. In addition, Newton stated that it was very common for perpetrators of sexual abuse to deny committing the offense. Shaffer's counsel objected to this statement and the trial court sustained the objection. However, counsel did not move to strike the statement or request a mistrial. Newton then testified, without objection, that D.K. and T.G. were not prone to exaggerate about sexual matters. Further, she stated that her examination of the children revealed nothing that was inconsistent with their allegations of sexual abuse. Finally, during Shaffer's cross-examination, the prosecutor asked Shaffer whether it was a fact that his own daughter did not want to be left alone with him. R. at 466-67. Shaffer's counsel objected and the trial court sustained the objection.
Thereafter, Shaffer was convicted of two counts of child molesting, both class C felonies, but acquitted of child molesting as a class B felony. On April 11, 1995, Shaffer was sentenced to two consecutive terms of eight years imprisonment, with four years suspended on each term, for a total executed sentence of eight years. The trial court also ordered Shaffer to reimburse the victims for $406.00 of counseling expenses upon his release from the Department of Corrections. This appeal ensued.
Shaffer contends that the trial court erred by allowing D.K. and T.G. to testify in a smaller courtroom. In particular, he argues that the trial court's decision improperly emphasized the victims' testimony and denied his rights to a fair trial and to be presumed innocent.
Initially, we note that although Shaffer objected to the use of the smaller courtroom before trial, he did not renew his objection when the State made its motion during trial. The failure to renew an objection at trial waives the issue on review. See Wright v. State, 593 N.E.2d 1192, 1194 (Ind.) (objection to trial court's denial of defendant's pretrial motion to suppress evidence waived on appeal because defendant did not renew objection during trial), cert. denied, 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540 (1992). Notwithstanding waiver, the trial court did not err in permitting D.K. and T.G. to testify in a smaller courtroom.
Shaffer correctly asserts that Indiana law is "distinctly biased" against trial procedures which tend to emphasize the testimony of any single witness. See, e.g., Hopkins v. State, 582 N.E.2d 345, 353-54 (Ind.1991) (). However, recognizing the potential trauma facing a child in court, Indiana trial courts have permitted children to testify under special conditions despite the possibility that it would emphasize their testimony. For example, this court upheld a trial court's decision to allow child witnesses to testify with a support person sitting behind them, Stanger v. State, 545 N.E.2d 1105, 1112 (Ind.Ct.App.1989), or a guardian sitting next to them. Hall v. State, 634 N.E.2d 837, 841-42 (Ind.Ct.App.1994). In addition, we approved a trial court's decision to permit a child to testify with her chair turned away from the accused and toward the jury. Stanger, 545 N.E.2d at 1112. Finally, our supreme court has authorized child testimony by two-way closed-circuit television to help reduce the child's trauma while still protecting the constitutional right of the accused to confront a witness face-to-face. Brady v. State, 575 N.E.2d 981, 989 (Ind.1991). As a result, the manner in which a party is entitled to question a witness of tender years, especially in embarrassing situations, is left largely to the discretion of the trial court. Jackson v. State, 535 N.E.2d 1173, 1174 (Ind.1989). We will reverse the trial court's decision only if there is a clear abuse of such discretion. Id.
In the present case, the trial court granted the State's request to allow the children to testify in a smaller courtroom because it determined that it would be a less traumatic environment in view of their tender age. R. at 263. Nothing in the record indicates that the trial court made any comments or took any action to emphasize the children's testimony. Further, Shaffer presents no evidence demonstrating that the jury placed undue emphasis on the children's testimony, or that he was otherwise prejudiced, as a result of the smaller courtroom setting. Thus, we cannot say that the trial court abused its discretion by permitting the children to testify in a smaller courtroom.
Shaffer contends he was denied the effective assistance of trial counsel for the following reasons: (1) his counsel's failure to request an admonishment or mistrial after the prosecutor implied that Shaffer's daughter was afraid to be alone with him; and (2) his failure to properly object to the admission of the expert testimony on child sexual abuse. Alternatively, Shaffer argues that the cumulative effect of his counsel's actions constituted ineffective assistance.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show the following: 1) his counsel's performance fell below an objective standard of reasonableness; and 2) but for his counsel's deficient performance, the result of the proceedings would have been different. Fugate v. State, 608 N.E.2d 1370, 1373 (Ind.1993). There is a strong presumption that counsel is competent and it can only be rebutted by strong and convincing evidence to the contrary. Id. Isolated poor strategy, inexperience or bad tactics do not necessarily amount to ineffective assistance. Howell v. State, 453 N.E.2d 241, 242 (Ind.1983). In addition, judicial scrutiny of counsel's performance is highly deferential and should not be exercised through distortions of hindsight. Id.
Shaffer argues that the prosecutor's question regarding his daughter's reluctance to stay alone with him amounted to the deliberate insertion of an evidentiary harpoon which warranted a mistrial. As a result, Shaffer contends that his counsel's failure to request a mistrial or an admonishment constitutes ineffective assistance.
An evidentiary harpoon occurs when the prosecution places inadmissible evidence before the jury for the deliberate purpose of prejudicing the jury against the defendant and his defense. Evans v. State, 643 N.E.2d 877, 879 (Ind.1994). In certain circumstances, the injection of an evidentiary harpoon by a prosecutor may constitute prosecutorial misconduct rising to the level of fundamental error and requiring a mistrial. Stowers v. State, 657 N.E.2d 194, 198 (Ind.Ct.App.1995), trans. denied. However, a mistrial is an extreme remedy warranted only when no other curative measure will rectify the situation. DeBerry v. State, 659 N.E.2d 665, 669 (Ind.Ct.App.1995). When reviewing a claim of fundamental error based on prosecutorial misconduct, we consider whether there was misconduct and whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril. Stowers, 657 N.E.2d at 198. The gravity of peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct. Id.
Here, the prosecutor's question to Shaffer in regard to his daughter's reluctance to be alone with him was clearly improper. Nevertheless, counsel's...
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