Turney v. State

• Decision Date: 13 December 2001
• Docket Number: No. 27A02-0010-CR-644.,27A02-0010-CR-644.
• Citation: 759 N.E.2d 671
• Parties: John R. TURNEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

759 N.E.2d 671

John R. TURNEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A02-0010-CR-644.

Court of Appeals of Indiana.

December 13, 2001.

Rehearing denied January 31, 2002.

Donald W. Pagos, Sweeney, Dabagia, Thorne, Janes & Pagos LLP, Michigan City, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Following a jury trial, John R. Turney appeals his convictions and sentences for two counts of sexual misconduct with a minor,¹ as Class C felonies, and one count of sexual misconduct with a minor,² as a Class B felony. On appeal, Turney raises seven issues, one of which we find dispositive:

In an action for sexual misconduct with a minor, evidence of child sexual abuse accommodation syndrome was introduced. Did the prosecution violate the due process rights of the defendant as set out in Brady v. Maryland³ by withholding evidence of prior sexual misconduct by the minor.

We reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY⁴

The facts most favorable to the verdict reveal that during the 1998-1999 school year, Turney was responsible for supervising the Marion High School in-school suspension program ("ISS"). Students who violated school rules or posed disciplinary problems were required to attend ISS class in lieu of their regular school schedule. Students sometimes also had to attend ISS after school on Friday and on Saturday mornings.

A.D.H., a female student at the high school, was assigned to ISS after school on Friday, February 5, 1999, and on Saturday morning, February 6, 1999, because she skipped school. On Friday evening, Turney engaged A.D.H. in conversation about partying, drinking, drugs, sex, and people they both knew. In particular, A.D.H. told Turney about her sexual experiences, and Turney informed A.D.H. that he enjoyed performing oral sex on girls. He also asked A.D.H. to bring him a suggestive picture of herself. Although A.D.H. thought it was "weird" that a teacher would discuss these topics with a student, she also thought it was "kind of cool" that a teacher could understand her and relate to her. Transcript at 463.

On Saturday morning, A.D.H., along with three boys, arrived at school for the ISS class. Turney took the boys to the gymnastics pit where he directed them to clean the area. A.D.H. remained with Turney in the classroom. While A.D.H. was filing papers, Turney came up behind her, put his hand on her chest, touched her breast, kissed her neck, licked her breast, unbuttoned and pulled down her pants and panties, knelt down, fondled her vagina, and performed oral sex. At A.D.H.'s urging, Turney stopped to check on the boys in the gym. A.D.H. was afraid to leave the room for fear she would get into further trouble for leaving ISS. When Turney returned, he placed her hand on his penis outside his clothing, again performed oral sex on her, and requested that she perform oral sex upon him. She refused and asked Turney to check on the boys again. As he left, he told her that when he returned he was going to put her on his desk and perform oral sex again. Believing she would be safe in the gym, A.D.H. left the classroom and met Turney in the hall. He expressed concern that she would tell someone about the incident. A.D.H. assured him she would not.

Later that day, A.D.H. told her sister about the incident and that alcohol had been involved. Her sister encouraged her to tell authorities, but kept her secret. A.D.H. later recanted her story about alcohol being involved. Eventually, A.D.H. also told a close friend and the high school assistant principal. She also gave a statement to child protective services and to the police.

On June 29, 1999, Turney was charged with three counts of sexual misconduct with a minor. Following a five-day trial, the jury returned guilty verdicts on all three counts on July 1, 2000. After a sentencing hearing on September 18, 2000, the trial court sentenced Turney to six years' imprisonment on the Class B felony with three years suspended to probation. The court further sentenced Turney to three years' imprisonment for both Class C felonies and ordered the sentences served concurrently. On November 2, 2000, this court granted Turney's petition for bond pending this appeal.

DISCUSSION AND DECISION

After trial, Turney discovered that the State had not disclosed to him that one year prior to the incident here at issue A.D.H. had engaged in sexual activity with two boys, whom he believes are the natural children of her foster parents.⁵ Following discovery of the information, Turney's appellate counsel contacted the Grant County Prosecuting Attorney's Office and, in response, received a letter dated October 2, 2000, a portion of which follows:

With regard to your question about the victim being accused of sexually molesting two boys, it did come to our attention prior to Mr. Turney's trial that during the winter and spring of 1998, when the victim was fourteen and fifteen years of age, she did participate in sexual activity with two under age boys, fifteen and twelve years of age. As you noted we did not disclose this information to defense counsel. We were under no obligation to do so.

Appellant's Appendix at 295. Turney argues that suppression of this evidence violated his right to due process and that his convictions must therefore be vacated. He specifically maintains that the State portrayed A.D.H. as an innocent victim and bolstered her credibility by introducing evidence of her emotional state after the incident and by introducing child sexual abuse accommodation syndrome evidence. Turney maintains that the State's purposeful failure to disclose this information to him prior to trial was compounded by the admission of child sexual abuse accommodation syndrome evidence. We agree.

Due process requires that the State disclose to the defendant favorable evidence that is material to either guilt or to punishment. Stephenson v. State, 742 N.E.2d 463, 491 (Ind.2001) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). In United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the United States Supreme Court determined that the Brady rule encompassed both material impeachment evidence and exculpatory evidence. The Court held that favorable evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682, 105 S.Ct. at 3383-84; Kyles, 514 U.S. at 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490; Stephenson, 742 N.E.2d at 491. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. Bagley, 473 U.S. at 678, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481. If this court finds that a "reasonable probability" exists, then the evidence is material under Brady, and its suppression from Turney results in constitutional error thereby warranting a new trial. Kyles, 514 U.S. at 434-36, 115 S.Ct. at 1558.

In Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Court summarized three components of a Brady violation: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the State must have suppressed the evidence either willfully or inadvertently; and (3) prejudice must have occurred (i.e., the evidence must have been material). At oral argument, the State conceded that the evidence was favorable to Turney based upon its impeaching value and that the State willfully suppressed the evidence; however, the State maintains that no reversible error occurred because the evidence was not material.

Turney argues that the evidence was indeed material. He contends that the State suppressed evidence that the victim "had herself sexually molested two young boys" who were the natural children of her foster parents. Appellant's Amended Brief at 9. He argues, "In realty, [sic] the complaining witness herself was a child molester." Id. at 7. Turney claims the evidence was material because throughout the trial A.D.H. was portrayed as an innocent victim who was emotionally upset following the incidents and who was removed from her foster family because she had smoked cigarettes with the foster parents' children. He reasons that her own acts as a child molester provided an alternative explanation for her emotional upset and being removed from the foster family and that he was unable to elicit this during cross-examination of the State's witnesses. As a result, he claims this left the jury to infer that he was the cause of the victim's behavioral problems.

The State responds that even if the information had been disclosed to Turney, it would have been inadmissible pursuant to Ind. Evidence Rule 412(a), which provides that:

In a prosecution for a sex crime, evidence of the past sexual conduct of the victim or witness may not be admitted, except:

(1) evidence of the victim's or of a witness's past sexual conduct with the defendant;

(2) evidence which shows that some person other than the defendant committed the act upon which the prosecution is founded;

(3) evidence that the victim's pregnancy at the time of trial was not caused by the defendant; or

(4) evidence of conviction for a crime to impeach under Rule 609.

According to the State, because evidence of the victim's prior sexual conduct fails to meet any of these exceptions, the evidence would have been inadmissible in any event. Citing Steward v. State, 636 N.E.2d 143 (Ind.Ct.App.1994), aff'd 652 N.E.2d 490 (Ind.1995), Turney counters that Evid. R. 412 must yield when a defendant is denied his Sixth Amendment right to cross-examine witnesses.

In Steward, as in the present case, the...