Simmons v. State

• Decision Date: 02 March 1987
• Docket Number: No. 984S359,984S359
• Parties: Wendell Lamar SIMMONS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 575

504 N.E.2d 575

Wendell Lamar SIMMONS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 984S359.

Supreme Court of Indiana.

March 2, 1987.

Thomas G. Godfrey, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Wendell Lamar Simmons was convicted at the conclusion of a jury trial in the Madison Superior Court of rape, a class A felony; robbery, a class B felony; and theft, a class D felony. He was sentenced to fifty (50) years for rape, fifteen (15) years each for robbery and criminal confinement, and two (2) years for theft, all to be served consecutively, for a total sentence of eighty-two (82) years. On direct appeal, he raises the following issues:

1. permitting expert testimony regarding the victim's clothing, and limiting presentation of evidence regarding the chain of custody of the clothing;

2. permitting evidence of rape trauma syndrome;

3. denial of Appellant's motion in limine and motion to sever;

4. denial of Appellant's motion to dismiss and discharge, and motion to amend the information;

5. denial of Appellant's motion for change of venue from the county and judge;

6. permitting evidence of the victim's changed behavior after the rape;

7. admitting State's Exhibit No. 27 into evidence; and

8. sentencing.

On the night of October 14, 1983, J.Y. and her friend went to the Anderson High School football game. After the game they went to a restaurant, where they encountered the friend's cross-country coach. The coach challenged the friend about not keeping with training. J.Y. then took her friend home, and returned to Anderson High School. She had noticed the coach's car, and sought to confront him over what she considered his rude conduct at the restaurant. Outside the school, Appellant approached J.Y., held a knife against her, threatened her, and forced her to walk to a railroad right-of-way and undress. Appellant put his jacket on the ground, ordered J.Y. to lie on it, and raped her while holding a knife. After raping J.Y., Appellant repeatedly told her he would have to kill her. Appellant announced he had a gun, and walked J.Y. back to her car. He drove the car to a gas station and ordered J.Y. to buy gasoline and draw cash on her credit card. Appellant dropped J.Y. off about a half mile from her house, fabricated a story which he told her to relate, and took her car. J.Y. ran home and told her father she had been raped and the car had been stolen. He persuaded her to report it to the police, and J.Y. then related the fabricated story to the police. Subsequently, she did give a statement relating the events as written above. The car was recovered in Georgia the day after the rape, with Appellant at the wheel. Appellant testified at trial that he met J.Y. in front of the high school on his way to his girlfriend's house, smoked marijuana with her, and had consensual intercourse with her in her car, after which she voluntarily gave him the car so that he could drive to Georgia to see his children.

I

Appellant maintains the trial court erred in permitting Steven First to testify and in not allowing Appellant to present evidence on the chain of custody of J.Y.'s clothes.

Appellant's initial trial resulted in a hung jury. After the first trial, First examined J.Y.'s socks, pants, and panty hose, and determined the presence of grass deeply imbedded in the fabric. Hospital personnel had given these articles of clothing to the police on the night of the rape, and the police had placed them in a sack which was identified at trial. The clothing was stored in the Anderson Police Department lock-up until it was taken to the Indiana State Police laboratory, where it remained until the first trial. During the trial and jury deliberations, the jurors and court personnel handled the clothing. At the second trial, a hearing was conducted outside the presence of the jury to determine the admissibility of the clothing. Some jurors from the first trial testified to having seen grass on the clothing, while others testified they had seen none. The trial court found a sufficient chain of custody had been presented to negate the possibility of tampering or alteration. The trial court upheld the State's motion in limine regarding evidence of the initial trial, and did not allow Appellant to call the jurors from the first trial as witnesses.

To establish a chain of custody, the State need only present evidence that strongly suggests the exact whereabouts of the evidence at all times. The State need not provide evidence that excludes all possibility of mishap or tampering, but need provide only reasonable assurance that the evidence passed through various hands in an undisturbed condition. Salahuddin v. State (1986), Ind., 492 N.E.2d 292, 293.

The evidence at trial traced the clothing from the hospital to the Anderson Police lock-up, to the State Police laboratory, to Steven First. With the chain of custody thus provided for, the trial court properly allowed Steven First's testimony.

Appellant also argues he should have been allowed to call the original jurors to testify regarding their handling of the clothing, so as to complete the chain of custody. Although he raises the possibility that the condition of the grass on the clothes was somehow altered when the original jurors handled them, this is no more than mere speculation. The expert's testimony was that the grass was deeply embedded in the fabric, and required a brush and tweezers for extraction. The possibility that the jurors' handling of the exhibits so deeply embedded the grass therein is extremely remote. The trial court was faced with balancing opposing interests: 1) that the jury be advised of each person who handled the clothing; and 2) that the jury not be advised of the prior trial resulting in a hung jury. The latter could be achieved while still advising the jury that the clothing was handled by hospital staff, and police and court personnel. This handling, in all likelihood, caused just as much settling of the grass as any handling by the jury. Furthermore, the incriminating evidence, that is, the evidence which refuted Appellant's version of the facts, was not that there was grass on one piece of clothing as opposed to another, but that there was any grass at all present on the clothing. The chain of custody was sufficiently established, and Steven First was properly allowed to testify. The trial court did not err in refusing to allow the original jurors to be called as witnesses.

II

Appellant contends the trial court erred in allowing State's Witnesses Linda Kepner and Brenda Turnbloom to testify regarding rape trauma syndrome. J.Y. reported being raped to the police, but failed to tell them she had been to the Payless Supermarket on the west side of Anderson with Appellant. Instead, she initially reported having been abducted from another Payless Supermarket on the south side of Anderson, and taken to the Grandview Golf Course and raped. When he was arrested, Appellant told the police he had engaged in consensual intercourse with J.Y., after which they drove to the west-side Payless to cash a check. Subsequent investigation supported the fact that J.Y. and Appellant were at the west-side Payless. J.Y. testified at trial that she did not remember being at the west-side Payless. About one month after the rape, J.Y. gave a statement to the police in which she changed her original report. She maintained she was abducted from the Anderson High School area and was taken to some nearby railroad tracks and raped. She explained her second version by stating Appellant, after threatening to kill her, had ordered her to recount the initial version.

Linda Kepner testified as a certified social worker, specializing in studies concerning sexual assaults. She founded Women's Alternatives Inc., an organization to aid rape and sexual assault victims. Brenda Turnbloom testified to credentials in counseling and psychology, and to two (2) years training at the Indiana University School of Social Work, specializing for three (3) years in cases of rape, domestic violence, and child sexual abuse. She is a past president of Women's Alternatives Inc. Kepner testified that J.Y.'s failure to remember being at the Payless Supermarket was not unusual for a rape victim and was consistent with rape trauma syndrome. Turnbloom testified concerning three types of rapists, stating that, based on the events described in J.Y.'s statements to the police, the individual who raped J.Y. was a "power rapist." This testimony was used to show that J.Y. could have felt under the threat and power of Appellant even after the night of the rape, thus explaining her original statement to the police.

Appellant maintains Kepner and Turnbloom vouched for J.Y.'s credibility, and that their testimony prejudiced Appellant.

Appellant's version of the incident, to which he testified, was that he did, in fact, meet J.Y. at the Anderson High School, that they smoked marijuana together, and that she voluntarily went with him and consented to sexual intercourse. J.Y. testified that Appellant told her several times he would have to kill her since her father was a lawyer and he knew she could identify him. He finally agreed not to kill her if she would get him some money with her credit card, let him take her automobile, and tell a different version of the incident that he furnished to her. She did at first tell this false version of the events although she continued to insist that she was raped and forced to do all the things she did that night.

It is proper for an expert witness to give an opinion in order to aid the jury or trier of fact. Blackmon v. State (1983), Ind., 455 N.E.2d 586, 591; Washington v. State (1979), 271 Ind. 97, 102, 390 N.E.2d 983, 987. The witnesses here were properly qualified psychiatric social workers, specifically...