Stout v. State
| Citation | 528 N.E.2d 476 |
| Decision Date | 22 September 1988 |
| Docket Number | No. 48S00-8603-CR-250,48S00-8603-CR-250 |
| Parties | Clarence C. STOUT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
William Byer, Jr., Byer & Gaus, Anderson, for appellant.
Linley E. Pearson, Atty. Gen., Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant Clarence C. Stout was sentenced following jury trial to fifty (50) years for child molesting, a class A felony. His issues on appeal relate to the following:
1. motion for continuance;
2. expert testimony regarding credibility;
3. admissibility of certain testimony regarding sanity;
4. refusal of tendered instruction;
5. removal from list of court-appointed psychiatrists;
6. reasonableness of sentence; and
7. sufficiency of evidence of intent.
Defendant first contends that the trial court erroneously denied his motion to continue the trial to allow him to obtain military records allegedly relevant to the issue of sanity. The charging information was filed on December 19, 1984, and trial was set for May 7, 1985. On April 17, 1985, defendant filed a motion for continuance, which was granted, and trial was reset for September 9, 1985. On September 4, 1985, defendant filed a further motion for continuance to secure defendant's entire military service record as additional evidence.
Defendant argues that because his motion for continuance complied with the requirements of Ind.Code Sec. 35-36-7-1, the trial court lacked discretion to deny the motion. We disagree. The statute prescribes the necessary elements of a defendant's motion to postpone trial, but it does not compel the granting of motions made in compliance therewith.
Defendant cites no authority directly holding that a trial court is without discretion and must grant motions for continuance which comply with the statutory requirements. However, he correctly notes that various cases contain language expressly recognizing trial court discretion when a motion for continuance is "based on non-statutory grounds." See Bryan v. State (1982), Ind., 438 N.E.2d 709, 714, cert. denied (1987), --- U.S. ----, 108 S.Ct. 190, 98 L.Ed.2d 142; Rhinehardt v. State (1985), Ind., 477 N.E.2d 89, 92; Anderson v. State (1984), Ind., 466 N.E.2d 27, 32. The language employed in such cases can be read to imply that the trial court is without discretion to deny motions for continuance that comply with the statutory requirements, but the plain language of the statute does not lead to such a conclusion.
While cases implementing former statutes regarding continuances have recognized the right to a continuance upon full statutory compliance, 1 the availability of continuances is now controlled by Trial Rule 53.5:
Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence. The court may award such costs as will reimburse the other parties for their actual expenses incurred from the delay. A motion to postpone the trial on account of the absence of evidence can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and where the evidence may be; and if it is for an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring the testimony within a reasonable time, and that his absence has not been procured by the act or connivance of the party, nor by others at his request, nor with his knowledge and consent, and what facts he believes to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured. If, thereupon, the adverse party will consent that, on the trial, the facts shall be taken as true if the absent evidence is written or documentary, and, in case of a witness, that he will testify to said facts as true, the trial shall not be postponed for that cause, and in such case, the party against whom such evidence is used, shall have the right to impeach such absent witness, as in the case where the witness is present, or his deposition is used.
The rule clearly provides that beyond the prerequisite formalities and content, the decision to grant a continuance rests in the sound discretion of the trial court. Defendant's motion for continuance was supported by affidavit and contained averments relating to the materiality of evidence expected to be obtained and facts defendant contends demonstrated due diligence.
The trial court, however, was not bound to construe the asserted facts as constituting good cause nor the conduct of the defense as demonstrating due diligence. The trial court was entitled to consider the nine months that had elapsed since the defendant's arrest and the five months elapsed since counsel filed defendant's notice regarding the defense of mental disease or defect, in determining whether defendant should be given even further time to seek his military records. Particularly considering the defendant's failure to specify the further steps to be taken and to identify the precise additional time required to obtain the additional evidence, we find no abuse of discretion in the trial court's decision to deny the continuance motion.
Defendant contends that the testimony of the victim's psychiatric social worker regarding the victim's counselling experiences and demeanor in the courtroom while testifying was improperly admitted, usurping the jury's function in finding facts and assessing weight and credibility. At trial the victim factually recounted the events that occurred, and her therapist subsequently testified that there was nothing unusual in the victim's rather factual and unemotional rendition and that the victim just wanted to hurry up, tell her story, and not have to deal with it anymore.
In Lawrence v. State (1984), Ind., 464 N.E.2d 923, 925, we recognized the special problem of accrediting child witnesses who are called upon to describe sexual conduct:
Whenever an alleged child victim takes the witness stand in such cases, the child's capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of "I believe the child's story", or "In my opinion the child is telling the truth."
Similarly, we recently observed in Head v. State (1988), Ind., 519 N.E.2d 151, 153:
Although it is entirely proper for the expert witness to state her opinion as to the general competence of the child witness and the child witness's ability to understand the subject, it was entirely improper for that same witness to review each item of the child's testimony and to specifically vouch for the truthfulness of such testimony. Such testimony was an invasion of the province of the jury in determining what weight they would place upon the child's testimony.
In the present case, the child victim was under twelve years of age at the time of trial. The psychiatric social worker testified that she had met with the victim on 24 separate occasions for counselling during the prior eight months. The challenged testimony of the social worker witness in this case was not in the nature of that prohibited by Lawrence or Head. It was properly admitted here.
In his third enumerated issue, defendant claims reversible error resulted from the trial court's exclusion of certain testimony that he sought to present on the issue of sanity. In this regard, he contends that the trial court erroneously sustained the State's objections to the following questions asked by the defense of defendant's treating therapist With regard to your background and your own personal experience, can you relate whether there was any incidences of children being acceptable as sexual partners in Viet Nam?
[W]ith regard to your interview with him, what is it that makes you think that he was exposed to items beyond normal experience in combat?
Defendant argues that these questions were relevant to his defense of post-traumatic stress disorder and that the exclusion of the testimony precluded him from "posing a proper statutory defense of insanity to the jury."
The trial court permitted defendant's therapist expert to provide substantial testimony regarding post-traumatic stress disorder, particularly as related to Viet Nam veterans; regarding his evaluation of the defendant; and regarding his opinion that the defendant was suffering from post-traumatic stress disorder. Defendant did not make an offer of proof to demonstrate that the excluded testimony would have been relevant and material. The failure to make such an offer deprives the trial court of sufficient information upon which to decide whether the testimony should be admitted and thus fails to preserve the issue for review. Collins v. State (1987), Ind., 509 N.E.2d 827; Nunn v. State (1983), Ind., 450 N.E.2d 495.
Defendant further asserts that the trial court erred in excluding various testimony of lay witnesses regarding comments and reactions by the defendant. Defendant specifically asserts that his mother was precluded from testifying regarding the tenor of defendant's letters and her opinion of "his attitude toward the...
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