Staton v. State, No. 1280S434

Docket NºNo. 1280S434
Citation428 N.E.2d 1203
Case DateDecember 04, 1981
CourtSupreme Court of Indiana

Page 1203

428 N.E.2d 1203
Richard STATON, Appellant,
v.
STATE of Indiana, Appellee.
No. 1280S434.
Supreme Court of Indiana.
Dec. 4, 1981.

Page 1205

Edward New, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

The appellant, Richard Staton, was charged with two counts of child molesting, Ind. Code § 35-42-4-3, and convicted on both counts after a trial by jury. He was sentenced to imprisonment for ten years plus ten years for aggravating circumstances on each count, the sentences to be served consecutively. His motion to correct error was denied and this appeal follows:

I.

The first issue concerns three questions regarding the nine-year-old victim: whether the trial court should have granted the defendant's petition seeking a mental examination of the victim; whether the trial court abused its discretion in determining that she was competent to testify; and whether the trial court erred in refusing to hear testimony that the victim suffered from brain damage and was "a born liar".

A.

Staton petitioned for and was granted a pre-trial hearing on his petition for a mental examination of J.H., the alleged victim of the sexual assault. The hearing was held and the petition denied. An aunt of the child testified at the hearing that J.H. was "a born liar", but on both direct and cross-examination admitted that the lies were about "minor things".

In Antrobus v. State, (1970) 253 Ind. 420, 254 N.E.2d 873, this Court held that it was error for the trial court to deny a defendant's petition for a mental examination of a witness. The sworn petition, considered by this Court in that case showed that the witness had a history of mental disturbances, and was uncontroverted. We said that because of the nature of the objection to the witness' competency, "an examination which would satisfy the trial court as to his competency would necessarily include an examination of the witness by a psychiatrist." Id., 254 N.E.2d at 881.

In the present case, there was no evidence that J.H. had a history of mental illness, and the uncontroverted testimony concerned only the witness' credibility. Moreover, we have held that a defendant has no right, in a sex offense case, 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. While the age of the victim called for a determination of her competency, no evidence indicated that she was mentally ill, and the question of credibility was one for the jury to resolve.

The court did not abuse its discretion in denying the petition.

B.

Indiana Code § 34-1-14-5, provides, in pertinent part:

"Witnesses who are incompetent.-The following persons shall not be competent witnesses: ... Children under ten years of age unless it appears that they understand the nature and obligation of an oath."

The trial court examined J.H. outside of the presence of the jury to determine her understanding and found that she was competent.

Page 1206

Staton argues that the court abused its discretion in light of the test set out in Martin v. State, (1969) 251 Ind. 587, 244 N.E.2d 100, and in light of the aunt's testimony that the child was a born liar.

In Martin we said, "The statutory presumption of incompetence is overcome when the child demonstrates an understanding of 'the nature and obligation of an oath' and there is no further test." Id., 244 N.E.2d at 103. The test is whether the child understood the difference between telling a lie and telling the truth; and whether the child knew that she would be punished for telling a lie. On review for abuse of discretion, we said, "If there is some evidence in the record of the voir dire examination from which the trial court could have inferred that (the five-year-old witness) understood 'the nature and obligation of an oath', then this court must affirm the ruling." Id.

The following colloquy took place between the trial judge and J.H.:

"Q. Okay, what do you know about Jesus?

A. That he don't want you to lie. Wants you to tell the truth.

Q. Okay. If ... if you say that he doesn't want you to lie what ... what do you mean that he doesn't want you to do?

A. That if you tell a lie that you'll get punish (sic).

Q. Okay, what would happen if you did tell a lie.

A. You'd get punish (sic)."

The trial judge asked J.H. what a lie is. She answered by relating an incident in which she had played in a churchyard even though her mother had told her not to, and she told her mother that she had not played there. She told the judge that it was wrong, and that her mother punished her for the lie.

This was evidence that J.H. knew the difference between telling a lie and telling the truth and that she knew that she would be punished for telling a lie. This satisfied the test in Martin. As for the aunt's statement that J.H. was a born liar, the trial court was not bound to believe it. More importantly, it concerned credibility, rather than competency, as noted above.

The trial judge did not abuse its discretion in finding J.H. competent to testify.

C.

The trial judge refused to hear testimony of two aunts regarding J.H.'s ability to understand the nature and obligation of an oath. He ruled that the competency determination in Ind. Code § 34-1-14-5, is to be based on the court's opportunity to examine and observe the witness. Staton offered no authority for the proposition that the court must go beyond its own examination and observation of the witness to resolve the question of competency, and he does not do so now. The trial judge's decision not to consider the aunts' testimony was within his discretion. The offer to prove shows that the testimony would have been substantially the same as that given at the hearing on the petition for a mental examination, and also that J.H. suffered from brain damage which rendered her unable to appreciate the obligation of an oath.

It was not error to refuse to hear this testimony regarding the competency of J.H. to testify.

II.

Staton had expected a witness, Raymond White, to testify on his behalf as to an alibi. On the night before the trial, White was taken to the alcohol abuse unit at Central State Hospital and defense counsel sought the court's help in procuring his attendance at trial. Staton contends that the witness was under subpoena, that the State "shanghied" him to Central State Hospital, and that the trial court improperly refused to order the police to bring him back from the hospital. The record shows that the court held a hearing outside the presence of the jury to determine whether White was indeed under a subpoena. No evidence was introduced to show that White was ever served a subpoena to testify. In

Page 1207

the absence of such evidence, the court did not err in refusing to order the production of White. See Craig v. State, (1980) Ind. 404 N.E.2d 580. There was no evidence that the State "shanghied" the alibi witness.

III.

Staton next contends that the trial court misled his counsel into believing that it would permit "unlimited voir dire" and then limited the scope of voir dire at the trial. He asserts, without citing any authority, that he should have been permitted to ask jurors the following question: "Will you require the State to convince you beyond a reasonable doubt that there was an effective waiver by the defendant of his constitutional rights (under Miranda v. Arizona, infra)?" The trial court told the jurors that the issue of waiver of rights under the Miranda decision is one for the court to determine, not the jury, and closed off further questions on the issue. The trial court was correct. Indiana Code § 35-5-5-1 provides:

"In any criminal prosecution brought by the state of Indiana, a confession, as defined in section 5 hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence and hearing of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made, it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances."

The trial judge permitted the jury to hear evidence on the voluntariness of a statement made by the defendant, but since, as we will discuss below, the statement was not given in response to interrogation while the defendant was in custody, the jury was not entitled to the instruction called for in the statute. Indiana Code § 35-5-5-4, provides:

"Nothing contained in this act shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention."

There was no error in limiting the voir dire in this regard.

Staton also asserts that he should have been permitted to pursue a line of questioning regarding theories of sexual fantasies in young girls and specific facts about a social welfare case on which one of the prospective jurors had worked.

It would have been proper to question the one prospective juror who had experience in the child welfare field about whether his experiences might prejudice him as a juror.

The record shows that the defense counsel questioned prospective juror Bingham as follows:

"Q. Mr. Bingham, if the evidence develops that the alleged victim, ______ told of two (2) other such incidents with favorite male men would you take that into consideration if you are selected as a juror?

Q. Mr. Bingham, what is your understanding of the psychiatrists' theory as to sexual fantasies in young females?

A. I don't know that I could really answer...

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35 practice notes
  • Partlow v. State, No. 182S28
    • United States
    • Indiana Supreme Court of Indiana
    • September 22, 1983
    ...by the defendant while he was being transported to the jail. They were therefore admissible into evidence. Staton v. State, (1981) Ind., 428 N.E.2d 1203, 1209-10; Smith v. State, (1981) Ind., 419 N.E.2d 743, 747; Johnson v. State, Defendant further claims his constitutional rights were viol......
  • Owensby v. State, No. 982
    • United States
    • Indiana Supreme Court of Indiana
    • September 4, 1984
    ...trier of fact will not be disturbed on appeal. Rowan v. State, (1982) Ind., 431 N.E.2d 805, reh. denied; Staton v. State, (1982) Ind., 428 N.E.2d 1203. Appellant claims that the items Malcolm and Freema Hall testified were taken from them in the robbery were never recovered and their testim......
  • State v. Morgan, No. C-850795
    • United States
    • United States Court of Appeals (Ohio)
    • December 10, 1986
    ...448 N.E.2d at 489; Crouch v. Fishbein (1919), 29 Ohio C.C. (N.S.) 573, 576, 35 Ohio C.D. 607, 610; accord Staton v. State (Ind.1981), 428 N.E.2d 1203; State v. Brewer (Me.1974), 325 A.2d 26; Williams v. State (1971), 11 Md.App. 350, 274 A.2d 403. These considerations form the basis for a co......
  • Newton v. State, No. 2-283A65
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1983
    ...it remains solely an inquiry into the child's understanding of the nature and obligation of the oath. See Staton v. State, (1981) Ind., 428 N.E.2d 1203; Bowers v. State, (1982) Ind.App., 435 N.E.2d 309; Bennett v. State, (1980) Ind.App., 409 N.E.2d 1189; Fox v. State, (1980) Ind.App., 413 N......
  • Request a trial to view additional results
35 cases
  • Partlow v. State, No. 182S28
    • United States
    • Indiana Supreme Court of Indiana
    • September 22, 1983
    ...by the defendant while he was being transported to the jail. They were therefore admissible into evidence. Staton v. State, (1981) Ind., 428 N.E.2d 1203, 1209-10; Smith v. State, (1981) Ind., 419 N.E.2d 743, 747; Johnson v. State, Defendant further claims his constitutional rights were viol......
  • Owensby v. State, No. 982
    • United States
    • Indiana Supreme Court of Indiana
    • September 4, 1984
    ...trier of fact will not be disturbed on appeal. Rowan v. State, (1982) Ind., 431 N.E.2d 805, reh. denied; Staton v. State, (1982) Ind., 428 N.E.2d 1203. Appellant claims that the items Malcolm and Freema Hall testified were taken from them in the robbery were never recovered and their testim......
  • State v. Morgan, No. C-850795
    • United States
    • United States Court of Appeals (Ohio)
    • December 10, 1986
    ...448 N.E.2d at 489; Crouch v. Fishbein (1919), 29 Ohio C.C. (N.S.) 573, 576, 35 Ohio C.D. 607, 610; accord Staton v. State (Ind.1981), 428 N.E.2d 1203; State v. Brewer (Me.1974), 325 A.2d 26; Williams v. State (1971), 11 Md.App. 350, 274 A.2d 403. These considerations form the basis for a co......
  • Newton v. State, No. 2-283A65
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1983
    ...it remains solely an inquiry into the child's understanding of the nature and obligation of the oath. See Staton v. State, (1981) Ind., 428 N.E.2d 1203; Bowers v. State, (1982) Ind.App., 435 N.E.2d 309; Bennett v. State, (1980) Ind.App., 409 N.E.2d 1189; Fox v. State, (1980) Ind.App., 413 N......
  • Request a trial to view additional results

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