Smith v. State

• Decision Date: 29 December 1997
• Docket Number: No. 85S04-9701-CR-27,85S04-9701-CR-27
• Citation: 689 N.E.2d 1238
• Court: Indiana Supreme Court
• Parties: Ralph D. SMITH, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).

Page 1238

689 N.E.2d 1238

Ralph D. SMITH, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).

No. 85S04-9701-CR-27.

Supreme Court of Indiana.

Dec. 29, 1997.

Kristina L. Lynn, Tiede Metz & Downs, P.C., Wabash, for Appellant.

Pamela Carter, Attorney General, James D. Dimitri, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SELBY, Justice.

The State challenges the decision of the Court of Appeals which reversed the jury convictions of Ralph D. Smith ("defendant") for one count of child molesting as a class C felony, ¹ and one count of attempted child molesting as a class B felony. ² The Court of Appeals, with one dissent, reversed his conviction because it concluded that defendant's trial attorney failed to move to suppress and to object to the admission of Smith's confession, which he asserted at trial was coerced, and that this constituted ineffective assistance of counsel. 673 N.E.2d 768 (Ind.Ct.App.1996). We disagree. We conclude that trial counsel's tactical decision to explain rather than to attempt to exclude his confession on voluntariness grounds did not constitute deficient performance; that defendant cannot claim that counsel's performance at trial prejudiced him because he testified at his sentencing hearing, contrary to his testimony at trial, that he in fact had molested his daughter and that his confession was not coerced; and that defendant was not deprived of the effective assistance of counsel within the meaning of the Sixth Amendment of the United States Constitution. ³ Accordingly, we reverse the Court of Appeals and reinstate defendant's convictions.

FACTS

Pursuant to a plea agreement, defendant initially attempted to plead guilty to child molesting as a class C felony, in exchange for which the State agreed to dismiss the count of child molesting as a class B felony and to recommend a sentence of four years with three years to be suspended, one year to be served at the Wabash County Jail, and three years of probation to be imposed upon such terms and conditions determined by the court. The trial court, however, rejected the proposed plea agreement, and, on September 27 and 28, 1994, the case was tried before a jury which convicted defendant on both counts.

The facts elicited at trial, viewed in the light most favorable to the judgment, are that defendant and his first wife Melanie Hayes were married in May 1990 and had a baby girl ("S.S." or "victim") on September 20, 1990. In April 1991, defendant began dating and having sexual relations with fifteen-year-old Amanda Moorehead, now Amanda Smith, defendant's second wife. Defendant and Melanie Hayes separated in May 1991, and in September 1991, they filed for divorce which was granted in April 1992.

After the couple filed for divorce, the court established a visitation schedule. Defendant had visitation with his daughter every other weekend from Friday evening to Monday, and every other Thursday. Defendant's visitation often took place at the home of Amanda's parents.

Melanie testified that, beginning in March 1992, when her daughter, then approximately eighteen months old, returned from visiting defendant, she was temperamental and would fondle herself. She also would say that she did not want to go back to visit her father, whom she began referring to as "Ralph" instead of "Daddy" because she was mad at him. (R. at 186-88.)

Concerned by this behavior, Melanie met with the Miami County Department of Public Welfare ("DPW") in March 1992, and DPW referred her to Dr. Neil Stalker, a pediatrician who examined the victim for signs of abuse. At that time, he could not say that she had been abused. Nevertheless, the victim continued, with increasing frequency, to display the same type of behavior after visiting her father.

On Sunday, November 22, 1992, following a Thursday visit with defendant, Melanie was attempting to toilet train her daughter. She left the bathroom briefly to answer the phone and when she returned, discovered that her daughter had blood on her hands, thighs and shins. Melanie took her daughter to the emergency room, and once again was referred to Dr. Stalker who examined the victim on November 23, 1992. During that examination, Dr. Stalker discovered scar tissue on the victim's hymen and venereal warts (also referred to as "condyloma acuminata") on her hymen and around her anus. Dr. Stalker testified that the scarring and thickening of the hymen was likely caused by a penetrating injury and was consistent with penetration by a finger. He further testified that venereal warts generally are transmitted through sexual contact with someone who has warts. Although some physicians believe that venereal warts can be contracted from the mother during passage through the birth canal or from contact with the hands of someone who has lesions, Dr. Stalker opined that these possible transmission vehicles were not plausible.

After the incident in November, defendant's visits with his daughter were to be supervised by his mother. Nevertheless, when defendant brought her home from a half day visit on December 26, his mother was not with him. The victim would not allow Melanie's niece to take off her hat or her coat. When Dr. Stalker examined her on December 28, the lips of her genitalia were red, an area of her buttocks was bleeding, and there was swelling around the victim's anus. She told the doctor that "a man had hurt her bottom." (R. at 208-09.)

In January 1993, acting upon a request from DPW, the Indiana State Police began an investigation into the abuse of S.S. Police investigator Robert Brinson interviewed approximately twenty people, and on February 25, 1993, he interviewed defendant at the police post in Peru, Indiana. At the request of the police, defendant left work and drove to the police post for his interview. During the interrogation, defendant signed a form captioned "Advice of Rights--Interrogation," which stated that he had been advised of his constitutional rights and agreed to waive them. (R. at 218.) It also stated that "[n]o promises or threats have been made to me and no pressure or coercion of any kind has been used against me." Id. Defendant also gave an audiotape statement in which he acknowledged that first Officer James and then Brinson had read him his rights, that he understood those rights, and that he agreed to waive his rights.

In the taped statement, defendant admitted to two instances in which he had touched his daughter in a sexual manner. Defendant confessed that sometime prior to September 1992, he had touched the victim while giving her a bath at Amanda's parents' house. He stated that he had rubbed the victim's vagina and became sexually excited while doing so. He then inserted his middle finger of his right hand just past the first knuckle into the victim's vagina. He then dressed his daughter, put her in bed, returned to the bathroom, and masturbated.

The second instance occurred the next morning when he changed his daughter's diaper in the bathroom. Defendant stated that he again rubbed the victim's vagina with his finger and hand, and then, while his daughter was standing in front of him and he was on his knees facing her, he rubbed his penis on the victim's vagina by placing his penis between her legs and thrusting with his hips. Defendant then masturbated until he ejaculated while sitting on the toilet with his daughter in front of him. Defendant denied engaging in sexual conduct with his daughter on any other occasions.

After the interview, defendant left the station, and the police subsequently presented the results of their investigation to the prosecutor. On March 31, 1995, the State issued a warrant for defendant's arrest.

Defendant's trial counsel did not move to suppress defendant's confession and did not object to its admission at trial. Instead, counsel put defendant on the stand to explain the circumstances surrounding the confession to the jury. Defendant admitted to giving the statement, but said that it was false and that he did not molest his daughter. He said that he gave the statement because he was intimidated by the police. He explained that he was afraid of the police because, when he was sixteen, a police officer had shot and killed his father. Defendant testified that when he arrived at the police post at about eleven o'clock in the morning, personnel took him to a small room without windows where he was questioned by Sergeant James for about two to three hours. According to defendant, Sergeant James repeatedly told him that he was not telling the truth when he denied molesting his daughter and also told him that he could not leave. Defendant asked for Brinson, to whom defendant ultimately confessed, and Brinson then proceeded to question defendant.

According to defendant, when he started to look at his watch and at the door, Brinson said, "If you want to leave you have to go through me." (R. at 313.) Defendant testified that he thought that if he left he would have been hurt. He also testified that he spoke to Brinson for about an hour or an hour and a half before Brinson turned on the tape recorder, and that during this initial interview, Brinson told him that if he wanted a lawyer, he could not have one and that a lawyer would just make things harder for him and would make things last longer. Defendant testified that he sat in the room until about four o'clock and left only once to go to the bathroom.

Defense counsel elicited testimony from Brinson that, on the day of his interview, defendant probably was at the police post by eleven o'clock; that Sergeant James interviewed defendant first, with Brinson listening to the majority of the interview from another room, and although this interview lasted until approximately three thirty in the afternoon, defendant made no admissions; and that during Brinson's interview he applied psychological pressure to defendant.

Brinson specifically denied defendant's...