Tyler v. State
| Decision Date | 31 March 2009 |
| Docket Number | No. 69S04-0801-CR-3.,69S04-0801-CR-3. |
| Citation | 903 N.E.2d 463 |
| Court | Indiana Supreme Court |
| Parties | Brian TYLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 69A04-0702-CR-120
We exercise our supervisory power to hold that a party may not introduce testimony via the Protected Person Statute if the same person testifies in open court as to the same matters. We also exercise our authority to revise the defendant's 110-year sentence to sixty-seven and one-half years.
Brian Tyler's girlfriend regularly babysat for a family with three children aged five to eight. Often, she would bring Tyler along. On December 30, 2005, the girlfriend babysat the children along with two other children, aged four and seven. For about four hours that night, the girlfriend left Tyler in charge of the children to go to another job. The next day, with the parents still gone, the children told the girlfriend that Tyler had exposed himself to them.
After the incident was reported, all five children spoke with a social worker at the Mayerson Center in Cincinnati in videotaped interviews in which all reported a series of sexual acts.
Tyler was charged with two counts of class A felony child molesting, two counts of class C felony child molesting, and one count of class D felony vicarious sexual gratification. All five children testified at trial. In addition, videotaped interviews of three of the children were admitted into evidence. A jury found Tyler guilty on all counts and determined that he was a habitual offender. The court entered judgment for the two A felonies and the class D felony, merging the C felonies into the A felonies. The court sentenced Tyler to forty years on each of the two class A felonies, to be served consecutively; three years on the class D felony, concurrent with the class A felonies; and thirty years for being a habitual offender. This resulted in a sentence of 110 years executed time.
Tyler appealed, asserting error under Indiana Rule of Evidence 403 or, alternatively, fundamental error, in the admission of the children's taped interviews. Tyler also contends that his sentence was inappropriate. The Court of Appeals affirmed the trial court in an unpublished opinion. Tyler v. State, No. 69A04-0702-CR-120, slip op. at 2, 2007 WL 3171832 (Ind.Ct. App. Oct. 31, 2007). We granted transfer.
The Protected Person Statute (PPS), Ind.Code Ann. § 35-37-4-6 (West Supp.2008), allows for the admission of otherwise inadmissible hearsay evidence relating to specified crimes whose victims are deemed "protected persons." The statute provides:
(d) A statement or videotape that:
(1) is made by a person who at the time of trial is a protected person;
(2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (e) are met (e) A statement or videotape described in subsection (d) is admissible in evidence in a criminal action listed in subsection (a) or (b) if, after notice to the defendant of a hearing and of the defendant's right to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person;
that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for [an enumerated reason.]
The PPS applies in this case because child molesting and fondling are specified crimes, id. § 35-37-4-6(a)(1), and children under fourteen years of age are deemed "protected persons." Id. § 35-37-4-6(c)(1).
Similar statutes have been enacted in many states. They are generally described as efforts to spare children the trauma of testifying in open court against an alleged sexual predator. See Miller v. State, 517 N.E.2d 64, 69-70 & n. 4 (Ind. 1987) (). Balanced against these considerations are concerns for the defendant's right to a fair trial, specifically, the Sixth Amendment right "to be confronted with the witness against him," and the right under article I, section 13 of the Indiana Constitution to meet witnesses "face to face." And, of course, the policies underlying the hearsay rule come into play. Aside from these issues, some have expressed specific concerns regarding children's suggestibility and have also questioned their capacity for accurate perception and memory. See, e.g., Jean Montoya, Something Not So Funny Happened on the Way to Conviction: The Pretrial Interrogation of Child Witnesses, 35 Ariz. L.Rev. 927, 933-34 (1993) ().
The PPS addresses these concerns in two ways. First, the trial court must find any video taped statements to be reliable before they may be admitted. I.C. § 35-37-4-6(e)(1). Second, the protected person must be made available for cross-examination. Id. § 35-37-4-6(f).
Because the PPS represents a departure from ordinary trial procedure, it should be used only when necessary to further its basic purpose of avoiding further injury to the protected person. We have never addressed a case under the current Rules of Evidence where, as here, the protected person testified at trial as well as by videotape or other statement.1 There are, of course, some circumstances under which a prior statement of a live witness is admissible under the Rules of Evidence, for example under Evidence Rule 801(d)(1)(A) or (B) because it contains inconsistent statements or rebuts a claim of fabrication. But neither party claims that the testimony in this case is admissible under these provisions. We believe that admitting consistent statements through both prerecorded media and also by live testimony presents two problems aside from confrontation clause or hearsay issues. First, admitting both a child's live testimony and consistent videotaped statements is cumulative evidence, and can be unfairly prejudicial. See, e.g., Modesitt v. State, 578 N.E.2d 649, 650-52 (Ind.1991) (). Second, if a child or other protected person is sufficiently mature and reliable to testify in open court without serious emotional distress,2 resort to the PPS is unnecessary. And if the person testifies live, admitting the additional earlier statement does not serve the statutory purpose of protecting the child from the burden of testifying.
In light of these considerations, we conclude that this Court should exercise its supervisory powers to elaborate on the permissible use of statements under the PPS.3 We hold that if the statements are consistent and both are otherwise admissible, testimony of a protected person may be presented in open court or by prerecorded statement through the PPS, but not both except as authorized under the Rules of Evidence. If the person is able to testify live without serious emotional distress such that the protected person cannot reasonably communicate, that is clearly preferable.
Rules implemented by use of supervisory powers are not applicable to proceedings conducted prior to publication. Pierce v. State, 677 N.E.2d 39, 46 (Ind. 1997). We recognize that the statute on its face provides that prior videotaped testimony may be admitted even if the protected person testifies at the trial. Specifically, the statute provides that a protected person's statement or videotape is admissible if that person testifies at trial as long as the court finds that the statement provides "sufficient indications of reliability" and the defendant is given notice. I.C. § 35-37-4-6(e). At the time of this trial, the opinions of this Court predating the Rules of Evidence had permitted admission of videotaped testimony under the PPS even if the witness also testified at trial. E.g., Wyrick v. State, 533 N.E.2d 118, 119-20 (Ind.1989); cf. Traver v. State, 568 N.E.2d 1009, 1011-12 (Ind.1991). After the Rules were promulgated, we explained in Pierce that 677 N.E.2d at 43 n. 6. This Court thus explicitly accepted the PPS as a part of Indiana evidence law, though not in the Rules. Tyler contends that the admission of evidence under the statute must still be subject to the overall balancing of prejudice and probative value required by Evidence Rule 403. We agree that evidence admissible under this statute, like any other generally admissible evidence, is subject to that test. But we do not agree that the court committed reversible error by admitting the taped statements. Although cumulative and therefore of minimal probative value, the prejudicial effect of admission of videotaped statements by three of the children was not significant in the face of the consistent live testimony of all five children.4
Tyler next claims that his sentence is inappropriate. Indiana's sentencing scheme as it applies in this case provides for an "advisory" term of thirty years for commitment of a class A felony, with not more than twenty years added for aggravating...
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