Strong v. State
| Decision Date | 22 May 1989 |
| Docket Number | No. 1185,1185 |
| Parties | Lola STRONG, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 487. |
| Court | Indiana Supreme Court |
Mark A. Ryan, Merritt & Troemel, Kokomo, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Lola Strong directly appeals her convictions for murder, involuntary manslaughter, reckless homicide, battery causing serious bodily injury, neglect of a dependent causing serious bodily injury, and criminal confinement causing serious bodily injury. The trial court sentenced the defendant as follows: murder, 50 years; involuntary manslaughter, 5 years; reckless homicide, 5 years; battery, 8 years; criminal confinement, 10 years; and neglect of a dependent, 10 years. The trial court ordered that the sentences for murder, involuntary manslaughter, reckless homicide, and criminal confinement be served concurrently, and that the sentences for battery and neglect of a dependent be served concurrently, but consecutive to the sentences for the other four crimes.
The defendant raises the following issues for review:
1) requiring defendant's co-counsel to testify during competency hearing of State's minor witness;
2) competence of child witness;
3) admissibility of photographic evidence of victim's injuries;
4) cross-examination of State's witness;
5) admission of taped statement;
6) refusal to give tendered instructions;
7) sentencing;
8) sufficiency of evidence.
To facilitate discussion of these issues, the following brief summary of evidence favorable to the judgment is provided. At the time of the charged offenses, March 1, 1984, the defendant had been caring for her three grandchildren: Henry Couturier, the victim, age 3; Tony Strong, age 7; Heather Couturier, age 1. That evening, when Henry and Tony argued over a toy, the defendant became angry with Henry, hit him several times, and then dragged him into the bathroom where she held his head over the sink and poured water over his face. She then grabbed Henry by the hair and struck his head against the side of the bathtub. The defendant then forced Henry to eat a cigarette. Not long after being allowed to leave the bathroom, Henry passed out. An ambulance was called, and Henry was rushed to the hospital. An emergency room examination revealed that hair had been pulled from the side of the victim's head, that there were numerous bruises on his body, that his face was covered with abrasions, that his lips were burned, and that he had swelling in various areas of the head, implying that he had been struck many times. Medical tests revealed brain swelling caused from a blow of severe impact. Henry did not recover from his injuries and died on March 8, 1984.
The defendant argues that her right to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Indiana Constitution was substantially infringed during the competency hearing of State's witness Tony Strong when her "lead" counsel, Michael Troemel, was called to the stand.
Several months prior to the competency hearing, the defendant's co-counsel, Troemel and Mark Ryan, tape-recorded an interview with Tony Strong. The defendant provided the State a transcribed copy of the statement prior to trial. At the hearing, during cross-examination of Tony Strong, the defense questioned him about the prior statement. Following the defense counsel's admission that the original recording had been accidentally erased after its transcription, the trial court permitted the State to call Troemel to the stand. Troemel was required to read a portion of the transcribed statement relating to Tony Strong's ability to differentiate between the truth and a lie. At all times during Troemel's testimony, co-counsel Ryan remained and actively served as trial counsel for the defendant. Troemel's testimony occurred during the competency hearing, out of the presence of the jury.
The defendant now argues that "requiring Troemel to testify on behalf of the State ... permitted the State to use defense counsel's work product and trial preparation" and thereby "directly infringed upon [the defendant's] right to effective assistance of counsel."
The defendant does not claim that her attorney was required to divulge confidential communications in violation of the statutory privilege. 1 Rather, she argues that by requiring her attorney to testify on behalf of the State and permitting the State to use defense counsel's work product and trial preparation, the defendant's right to effective assistance of counsel was infringed, resulting in fundamental error. Under the particular circumstances of this case, we disagree.
Troemel's testimony consisted solely of reading a portion of his prior interview with Tony Strong. Troemel had previously furnished a copy of the transcription to the prosecutor. The content of his testimony did not provide evidence of any elements of the charged offense. Nor did it constitute the sole basis on which Tony Strong was found to be competent to testify.
We agree with the State's contention that requiring Troemel to testify did not constitute a material interference with his function as an advocate or operate to deprive the defendant of a fair trial. The testimony occurred out of the presence of the jury, and the defendant's co-counsel remained present and actively participated. Merely requiring a defendant's lawyer to testify does not alone constitute a material interference with his function as an advocate. United States v. Freeman (9th Cir.1975), 519 F.2d 67. We find no error on this issue.
Children younger than age ten are not competent witnesses in Indiana "unless it appears that they understand the nature and obligation of an oath." Ind.Code Sec. 34-1-14-5. The defendant urges that the trial court erred in its determination that the State's eight-year-old witness, Tony Strong, was competent to testify. The defendant concedes that the evidence established that Tony understood the difference between the truth and a lie, but argues that the State failed to establish that Tony Strong knew he was under a compulsion to tell the truth.
Under Ind.Code Sec. 34-1-14-5, a child is competent if the court finds: (1) that the child knows the difference between telling the truth and telling a lie and (2) that the child knows of the need to tell the truth. LeMaster v. State (1986), Ind., 498 N.E.2d 1185. The determination of a child's competence lies within the trial court's discretion, because it has the opportunity to observe the child's intelligence, demeanor, and maturity. Lindsey v. State (1984), Ind., 465 N.E.2d 721. This Court's deference to the trial court's conclusion has been expressed as follows:
In reviewing such a determination, we recognize that our examination of the transcribed record of the questioning cannot compare with the trial court's personal presence at the hearing as a basis for resolution of the issue. We, therefore, entrust this determination to the discretion of the trial court and will reverse only where we find clear error, where there is no evidence from which the trial court could have found that the child understood the nature and obligation of an oath.
LeMaster, 498 N.E.2d at 1187-88 (quoting Johnson v. State (1977), 265 Ind. 689, 692, 359 N.E.2d 525, 528).
During the competency hearing, Tony Strong was questioned by the prosecutor, by defense counsel, and by the trial judge. Upon the issue of the child's compulsion to tell the truth, there was evidence that Tony knew that he was supposed to tell the truth in court, that he would get in trouble if he didn't, that it was important to tell the truth in court, and that the important things being decided required that he tell exactly what happened in the past.
The trial court's competency determination was not an abuse of discretion.
At trial, emergency room nurse Susan Keenan testified that she photographed the injuries on March 1, 1984, after Henry arrived at the hospital's emergency room. The State offered into evidence State's exhibits 1-6, photographs of the victim taken on March 1, 1984. Keenan identified State's exhibits 7-10 as photographs of Henry in the surgical intensive care unit taken March 3, 1984. State's exhibit 11, slides 1-5 and 8-16, depict him on March 1, 1984, in the emergency room, while slides 6 and 7 portray the victim in the autopsy room. Slides 1-16 (excluding slides 3, 8, and 13, which were not admitted into evidence) were employed by Dr. Arthur Jay, the pathologist who performed the autopsy, during his testimony describing his autopsy findings.
The defendant recognizes the general rule that the admission of photographs is within the sound discretion of the trial court and will not be disturbed absent abuse of that discretion. Thompson v. State (1986), Ind., 492 N.E.2d 264. However, the defendant argues in this appeal, as she did at trial, that the admission of State's exhibits 4, 5, 7, 8, 9, 10, and 11, slides 2, 4, 5, 9, 10, 11, 12, 14, 15, and 16, by the trial court was cumulative, irrelevant and prejudicial. We disagree.
Admissibility of photographs is dependent upon their relevance, and relevance is determined by whether a witness would be permitted to describe what the photograph depicts. Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied (1987), 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860. Autopsy photographs that are illustrative of witness testimony and that tend to prove the cause of death are also admissible under the above principle. Walker v. State (1980), 274 Ind. 197, 409 N.E.2d 626. When various photographs are used to demonstrate evidence that is properly admitted when described verbally, the fact that they are cumulative to some extent does not bar...
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