Smith v. State
| Citation | 673 N.E.2d 768 |
| Decision Date | 19 November 1996 |
| Docket Number | No. 85A04-9504-CR-127,85A04-9504-CR-127 |
| Parties | Ralph D. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Following a jury trial, Ralph D. Smith (Smith) was convicted of one count of child molesting as a Class C felony, 1 and one count of attempted child molesting as a Class B felony. 2 Upon appeal, he presents two issues for review; however, because one is dispositive, we consider it alone:
Whether Smith received ineffective assistance of counsel when his trial attorney failed to move to suppress and object to the admission of Smith's confession? 3
We reverse.
Stated most favorably to the judgment, the facts reveal that in May 1991, Smith and his first wife, Melanie, separated. In September of that year they commenced formal dissolution proceedings. From May until September, Melanie maintained primary custody of the couple's daughter, S.S., who was born in September 1990, and Smith saw S.S. primarily at the home of Melanie's parents. In September 1991, a formal visitation schedule was arranged, by which Smith had custodial visitation with S.S. every other weekend, and on alternating Thursdays. Until January 1992, Smith's custodial visitation sometimes occurred at the home of his mother, with whom Smith was living at the time. Custodial visitation also occurred at the home of the parents of Amanda Moorehead (now Amanda Smith), with whom Smith was involved romantically throughout the separation, and whom he married subsequent to the dissolution from Melanie. The custody and visitation arrangement devised in September 1991 continued after the dissolution was finalized in approximately April 1992.
In March 1992, S.S., then eighteen months old, began to exhibit apparently abnormal behavior following a visit with Smith. She began to fondle herself, and would often state that she did not want to return to her father, whom she would refer to as "Ralph". When asked by Melanie why she was referring to her father by his first name instead of as "Daddy", which was typical, S.S. replied that she called him "Ralph" when she was mad at him, or he was mad at her.
Concerned by this behavior, Melanie met in March with a representative of the Miami County Department of Public Welfare (DPW), who referred her to Dr. Neil Stalker, a pediatrician, so that Dr. Stalker could examine S.S. for signs of abuse. Dr. Stalker examined S.S. in March 1992, but found no evidence symptomatic of sexual abuse. Nonetheless, S.S. continued, with increasing frequency, to display the type of behavior earlier noted.
On a Sunday in November 1992, following a Thursday visit with Smith, Melanie was attempting to toilet train S.S. After leaving S.S. on the toilet for a moment to answer a phone call, Melanie returned to find blood on the hands, thighs and shins of S.S. Melanie cleaned S.S. and took her to the hospital, where she was again referred to Dr. Stalker. Dr. Stalker again examined S.S., and this time found evidence of thickening in her hymen, as well as a scar on her hymen. Dr. Stalker further observed the presence of condyloma acuminata lesions, otherwise known as venereal warts, on both the hymen and the anus of S.S. At Smith's trial, Dr. Stalker testified that the scarring and thickening in the hymen were likely caused by "a penetrating injury", and that the scarring and thickening were consistent with a penetration by a finger up to the first knuckle. Record at 202-03. He further testified that the most common way for a child the age of S.S. to contract the venereal warts was through sexual contact, though he acknowledged that the warts could be contracted through the birth canal, and that some physicians believe they can also be transmitted when a person with the warts on their hands comes in contact with the child.
In January 1993, acting upon a request from DPW, the Indiana State Police (ISP) began an investigation into the possible abuse of S.S. Pursuant to that investigation, ISP investigator Robert Brinson (Brinson) interviewed Smith in February 1993 at the ISP post in Peru. During the interrogation, Smith signed a form entitled "ADVICE OF RIGHTS--INTERROGATION", which indicated that he had been advised of his constitutional rights and agreed to waive them. Record at 218. Smith also gave an audiotape statement in which he acknowledged that he had been given his rights, that he understood the rights, and that he agreed to waive his rights.
In the taped statement, Smith admitted to two instances in which he had touched S.S. in a sexual manner. In one instance, Smith stated that, while giving S.S. a bath, he briefly inserted his middle finger into her vagina up to the first knuckle. After removing his finger, he put S.S. to bed, and returned to the bathroom, where he masturbated. In the other instance, which occurred the following morning, Smith "rubbed" the vagina of S.S. with both his hand and his penis after changing her diaper. Record at 23. Smith stated that, during the incident, S.S. was standing in front of him while he was on his knees, and he acknowledged that he rubbed his penis between her legs in an "in and out" manner by moving his hips. Record at 23. After rubbing his penis against the vagina of S.S., Smith masturbated. Smith stated that those were the only occasions on which he engaged in any conduct of a sexual nature with S.S.
Testifying on his own behalf, Smith admitted giving the statement, but claimed that the statement was false. Smith alleged that he gave the statement only after Brinson refused his request to leave (Smith was not under arrest at the time). According to Smith, when he indicated that he wanted to leave the police post, Brinson warned him that if he wanted to leave, "you have to go through me." Record at 313. Smith, who claimed that he was afraid of police because his father had been killed by a police officer, interpreted this statement to mean that he would be hurt by Brinson if he attempted to leave. Smith also asserted that Brinson refused his request to speak to a lawyer prior to giving the taped statement. When cross-examined by Smith's counsel, Brinson denied Smith's allegations.
To bolster Smith's assertions, the defense introduced the testimony of a psychologist who had examined Smith and concluded that he was of borderline intelligence, susceptible to pressure, and easily intimidated. Further, the defense elicited from Brinson that the interrogation of Smith at the police post had lasted for over four hours when the confession was obtained, and that pressure had been applied to Smith throughout the interrogation.
Despite the length of the interrogation, the only testimony from law enforcement officers which appears in the trial transcript is Brinson's, who spoke with Smith for only a brief period of time at the end of the interrogation session. No testimony was heard from a Sergeant James, who conducted the interrogation of Smith for approximately the first 3 1/2-4 1/2 hours that Smith was at the post. 4 Smith claimed that, while he was being interrogated by James, James refused his request to leave the interrogation room. Brinson also testified that he had listened to the majority of James' interrogation of Smith, and his interrogation of Smith following James' was intended to be Record at 225.
Smith argues that, because his trial counsel failed to make a motion to suppress and failed to object at trial to the introduction of Smith's confession, which Smith contends was false and coerced, he was denied effective assistance of counsel. We are compelled to agree.
The standard by which we review trial counsel's performance is well-settled. To demonstrate his counsel's ineffectiveness, Smith must satisfy a two-part test. First, he must show that: 1) his counsel's performance fell below an objective standard of reasonableness, and 2) it is reasonably probable that, but for his counsel's deficient performance, the result of the proceedings would have been different. Stroud v. State (1992) Ind.App., 587 N.E.2d 1335, 1338, trans. denied (citing Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied ). Further, because counsel is presumed to be competent, these elements must be demonstrated by strong and convincing evidence. Id.; see also Garrett v. State (1992) Ind., 602 N.E.2d 139, 141, reh'g denied.
Where, as here, an ineffective assistance claim is predicated upon the failure to make an objection, Stroud, supra, 587 N.E.2d at 1335, holds that a defendant must show that had the objection been made, the trial court would have sustained the objection. Further, as both Smith and the State correctly note in their briefs, had an objection or a motion to suppress been made, the trial judge would have held a hearing outside of the presence of the jury to determine whether the confession was in fact voluntary, Morgan v. State (1995) Ind.App., 648 N.E.2d 1164, 1169-70, and at that hearing the State would have had the burden of proving the voluntariness of the confession beyond a reasonable doubt. Id. It is this salient factor which was not considered or addressed in Stroud or other cases enunciating the principle that reversal requires proof that, as a matter of law, the objection would have been sustained.
Smith relies in his brief upon the proposition that, had the trial court held such a hearing, it would necessarily have ruled the confession inadmissible. He supports this assertion by pointing us to his trial testimony concerning the statements allegedly made by Brinson and James at the IPD post, along with the length of the interrogation, and the...
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Smith v. State
...counsel did not move to suppress the confession or object to its admission at trial, as Judge Friedlander observed in his dissent, 673 N.E.2d at 775, counsel did attempt to convince the jury that at the time he gave the statement, defendant had a legitimate reason to fear the police, that h......