Solomon v. State

• Decision Date: 01 September 1982
• Docket Number: No. 581S129,581S129
• Citation: 439 N.E.2d 570
• Parties: Alfred L. SOLOMON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 570

439 N.E.2d 570

Alfred L. SOLOMON, Appellant, v. STATE of Indiana, Appellee.

No. 581S129.

Supreme Court of Indiana.

Sept. 1, 1982.

Richard Kammen, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Alfred L. Solomon, was charged in the Madison Superior Court with the crimes of rape, Ind.Code Sec. 35-42-4-1 (Burns 1979), and burglary, Ind.Code Sec. 35-43-2-1 (Burns Supp.1982). A jury found Appellant guilty on both charges. The trial judge sentenced him to twenty years on each count, to be served consecutively. In this direct appeal, Appellant raises seven issues as follows:

1. whether the trial judge erred by denying Appellant's Motion for a Psychiatric Examination of the victim;

2. whether the trial judge erred by admitting into evidence an incriminating letter written by Appellant to the victim and delivered by Appellant's wife;

3. whether the trial judge erred by admitting into evidence Appellant's statements to police investigators;

4. whether the trial court improperly limited Appellant's cross-examination of the victim;

5. whether the trial court erred by permitting the victim to remain in the courtroom subsequent to her testimony and despite an order requiring the separation of witnesses;

6. whether the trial court erred by denying Appellant's Motion to Vacate the Judgment; and

7. whether the trial court erred in sentencing Appellant.

In the early morning hours of June 5, 1979, J. O. was awakened by a nude man standing beside her bed. She lived alone in the one-bedroom apartment where these events occurred. As she began to scream, the man threatened to kill her if she did not stop. He covered her face with a pillow and pinned her hands against her chest. It was dark in the room at the time and she could not identify the man, although she said his voice sounded familiar and he called her by her nick-name, Jenny. The man performed oral sex on her several times and then forced her to have sexual intercourse with him. Following intercourse, the man fell asleep on top of J. O. She wiggled free enough to reach a pistol she kept by her bed, and then threw the man off of her. He fled as she ran out of her apartment in the nude and summoned help. By that time it was daylight and she was able to recognize her assailant. He was Appellant Alfred Solomon, a person with whom she was acquainted as his mother and her parents had been good friends for many years.

I

Prior to trial, Appellant filed a Motion for a Psychiatric Examination of J. O. The apparent purpose of the Motion was to determine whether or not J. O. suffered from some mental or emotional delusion causing a distortion of reality of sufficient magnitude to render her incompetent as a witness. In its discretion, a trial court may order such an examination if it determines one to be necessary. We have held, however, that a defendant on trial for a sex offense has no right to subject the victim to a psychiatric examination. Page v. State, (1980) Ind., 410 N.E.2d 1304; Holder v. State, (1979) Ind., 396 N.E.2d 112; Easterday v. State, (1970) 254 Ind. 13, 256 N.E.2d 901. Appellant cites Easterday, supra, wherein this Court found that a trial judge had abused his discretion by denying a Motion for a Psychiatric Examination of the prosecuting witness. In Easterday, the prosecuting witness was a ten year-old girl who had a history of implicating men in acts of sexual misconduct and who previously had been known to fabricate stories of sexual incidents. This Court held that in view of the witness' background, the trial judge abused his discretion by failing to have the child examined before permitting her to testify. In the instant case, no evidence was presented to the trial court suggesting any reason to conduct a psychiatric examination to determine J. O.'s competency to testify. Also, the victim was a thirty year-old woman. The trial court did not abuse its discretion in refusing to grant Appellant's Motion. Page v. State, supra; Holder v. State, supra; Easterday v. State, supra.

II

While Appellant was in jail, he wrote a letter to J. O. apologizing for "the lascivious disregard" he had had for her and for the "fear and atrociousness" to which he subjected her on "Tuesday morning." In his lengthy letter, Solomon assured J. O. that he had the deepest respect for her and never meant to show any disrespect by the way he treated her. He stated his conduct was directed by the "demonic forces" of alcohol and drugs. Solomon repeatedly begged J. O. to forgive him and to drop her charges. He told J. O. he knew he would draw a long prison term because of his prior convictions and that this would impose an unbearable hardship upon his wife and small daughter who would not be able to get along without him. Solomon admitted writing the letter which he addressed "Dear Jenny" and signed "Al Solomon." He testified that he delivered it to his wife who subsequently put it into an envelope addressed to J. O. Solomon's wife mailed the letter. When the State offered the letter into evidence, Appellant objected on the grounds that it was a privileged husband-wife communication and therefore inadmissible against him. Solomon testified that he had delivered the letter to his wife only to hold for him, with the thought that he might later send it. Solomon said that he instructed his wife not to mail the letter. His wife testified that while Solomon delivered the letter to her, he did not give her any particular instructions about it. She said she placed the letter in an envelope, stamped it, sealed, addressed it to J. O., and mailed it to her. The trial court found that this was not a privileged husband-wife communication and therefore was admissible into evidence.

The trial court properly admitted Appellant's letter to J. O. Communications are privileged when they are between husband and wife and are intended to be confidential by reason of the marital relationship. If, however, the communication is intended to be transmitted to a third person, there is no privilege because the communication is not confidential. Robinson v. State, (1981) Ind., 424 N.E.2d 119; Resnover v. State, (1978) 267 Ind. 597, 372 N.E.2d 457. The letter here was written by Solomon to J. O. and was given to his wife only for the purpose of having it delivered to J. O. It was neither a confidential husband-wife communication nor was the letter based in any way on Solomon's marital relationship.

Appellant further objected to the letter's admission on the grounds that it contained reference to a prior conviction. The trial court, on its own initiative, ordered that all references to Solomon's prior criminal record be deleted. Apparently one such reference on page 6 of the letter was inadvertently not removed. This fact was not brought to the trial court's attention until the following day. Appellant argues that since no one at that point could have testified to his past record, the failure to strike this reference constituted a serious breach of the trial court's order which so prejudiced him that a mistrial should have been granted. The record shows that prior to the letter's admission into evidence, the trial court inquired whether all references to Appellant's past criminal activity had been deleted as instructed. The prosecutor replied in the affirmative. It is the State's contention that Appellant had ample opportunity to inspect the letter as submitted to the jury and to bring to the court's attention the inadvertently missed statement. We agree. Solomon had the opportunity to examine the exhibit before it was submitted to the jury and to determine whether all of the references to his past had been stricken. By failing to note the statement complained of, Solomon effectively misled the trial court into believing that its order had been completely complied with and waived his objections to this mistake. Having had an opportunity to object, Appellant may not wait until evidence has gone into the record and then, after finding it to be unfavorable, ask that it be stricken or that the jury be admonished. Carman v. State, (1979) Ind., 396 N.E.2d 344. Furthermore, in view of all the other evidence against Appellant, it does not appear that his one statement, "and because of my past record," so prejudiced him that a reversal is required. See: Estep v. State, (1979) Ind., 394 N.E.2d 111, 114.

III

Appellant further contends that the trial court erred in denying his Motion to Suppress certain incriminating statements he made to the police after his arrest. He specifically argues that the interrogating officer failed to advise him of his Miranda rights to have counsel present during the interrogation. See: Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The record shows that prior to interrogation, Solomon was read the following advisement.

"I, the undersigned, have been informed as to my constitutional rights, that I am entitled to legal counsel present at all times. I have also been advised that if I am unable to pay for counsel that the court will appoint an attorney to represent me. I'm not required to make any statement whatsoever, that any statement I make, either oral or written, may be used against me in court."

Appellant was then given to read an advice card on which the above advisement was printed, along with a waiver of rights statement which he signed. The interrogating officer testified that he additionally advised Solomon that he could use the telephone at that time to contact an attorney if he wished to do so. Appellant stated to the officer that he might want to telephone his parents later, but that he did not wish to use the phone right then.

Appellant relies upon Franklin v. State, (1974) 262 Ind. 261, 314 N.E.2d 742. In Franklin, this Court found that only advising a defendant of his "right...