Hackney v. State

649 N.E.2d 690, 1995 Ind. App. LEXIS 463, 1995 WL 242349

• Court: Indiana Court of Appeals
• Decided: April 27, 1995
• Docket: 56A03-9411-CR-404
• Status: Published

Opinions

OPINION

STATON, Judge.

A jury convicted William R. Hackney ("Hackney") of child molesting, a class B felony.¹ Hackney presents three (restated) issues for appellate review:

I. Whether the trial court erred in admitting the victim's testimony regarding an uncharged incident of domestic violence.

Whether the trial court erred in admitting the victim's testimony regarding Hackney's uncharged sexual misconduct.

III, Whether judicial misconduct interfered in Hackney's right to a fair trial.

We affirm.

The facts most favorable to the verdict reveal that in the summer of 1991, Hackney was married to Tina Louise Riley ("Riley"). Hackney and Riley resided with their two children and S.H., Riley's nine-year-old daughter. On two separate occasions in 1991, Hackney forced S.H. to engage in oral sex. Several months later, SH. told her school nurse and her mother, who reported the incidents of molestation to a welfare department caseworker. Hackney was subsequently arrested, charged and convicted of two counts of child molesting. This appeal ensued.

L.

Domestic Violence Evidence

Hackney challenges the trial court's admission of statements by S.H. regarding Hackney's prior physical abuse of Riley. The admissibility of evidence is within the sound discretion of the trial court, and we review only for abuse of that discretion. Brenneman Mechanical & Elec., Inc. v. First Nat. Bank of Logansport (1986), Ind. App., 495 N.E.2d 233, trans. denied.

The admission of evidence of uncharged conduct is governed by Indiana Rule of Evidence 404(b), which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[,] ...

In interpreting this rule,² our courts have determined that evidence of prior criminal acts is admissible only if introduced to prove something other than the defendant's bad character or propensity to commit the charged crime, the so-called "forbidden inference". Bolin v. State (1994), Ind.App., 634 N.E.2d 546, 548.

Hackney argues that the trial court erred in permitting S.H. to testify regarding alleged domestic abuse she observed Hackney inflict upon Riley, a prior bad act excludable under Rule 404(b). The State argues that this testimony was admissible for the limited purpose of showing S.H.'s state of mind; that is, to show that S.H. did not come forward about Hackney's abuse because she feared him.

The record supports admission of S.H.'s testimony for this limited purpose. S.H. testified that she was molested in the summer of 1991, but she did not report the abuse until February of 1992. Defense counsel elicited testimony from several witnesses regarding the timing and content of S.H.'s claims.³ This testimony raised the inference that S.H. might have fabricated the events, thus putting S.H.'s state of mind at issue. The trial court properly instructed the jury regarding the limited admissibility of S.H.'s statements; the evidence was not admitted in order to make the "forbidden inference" of bad character. Admission of S.H.'s statements was a proper exercise of the trial court's discretion.

IL

Uncharged Sexual Misconduct Evidence

Hackney next argues that the trial court abused its discretion in admitting S.H.'s statements regarding an uncharged act of sexual misconduct involving Hackney, also governed by Rule 404(b). During defense counsel's extensive cross-examination of S.H., she revealed an earlier incident of molestation that occurred when the family resided in St. Louis, Illinois. The incident in question had been previously ruled inadmissible in a pre-trial order in limine. Defense counsel did not object to S.H.'s references to the St. Louis incident until the trial court questioned her in an attempt to clarify her testimony.

While it is true that admission of testimony regarding Hackney's prior sexual misconduct violated the order in limine, defense counsel's failure to lodge a contemporaneous objection to the evidence waived such error unless admission of the evidence constitutes fundamental error.⁴ Davis v. State (1992), Ind., 598 N.E.2d 1041, 1048, reh. denied, cert. denied, - U.S. -, 114 S.Ct. 392, 126 L.Ed.2d 340. The requirement of a contemporaneous objection applies notwithstanding a trial court's pre-trial ruling on the admissibility of such evidence. Lenoir v. State (1987), Ind., 515 N.E.2d 529.

This court will find fundamental error only when the error "is a substantial and blatant violation of basic principles rendering the trial unfair" Davis, supra. We will consider the potential for harm resulting from the error, and the likelihood that the questioned evidence may have contributed to the conviction. Id. Erroneously admitted evidence will be considered harmless when a guilty verdict is supported by overwhelming independent evidence. Id.

In the case at bar, S.H.'s references to Hackney's uncharged sexual misconduct were elicited, albeit inadvertently, by defense counsel during eross-examination. S.H. did not reveal any details of the prior misconduct except to mention it briefly after she was confused by defense counsel's reference to a "first incident". We conclude that the admission of her cursory statements did not rise to the level of fundamental error. Moreover, the record contains ample independent evidence to support the jury's verdict. We find no error here.

IIL

Judicial Misconduct

Hackney argues that the trial judge failed to conduct the trial in an impartial manner, thus prejudicing the jury against him. A fair trial before an impartial judge is an essential element of due process,. Harrington v. State (1992), Ind., 584 N.E.2d 558, 561. The trial court has the duty to remain impartial and refrain from making unnecessary comments or remarks; the judge should refrain from actions that would indicate any position other than strict impartiality. Id. (quoting Abernathy v. State (1988), Ind., 524 N.E.2d 12, 13).

Hackney's first allegation of judicial misconduct stems from the trial judge's questioning of S.H. during defense counsel's cross-examination. It is well settled that the trial court has a duty to conduct the trial in a manner calculated to promote the ascertainment of truth, fairness and economy of time. Rowe v. State (1989), Ind., 539 N.E.2d 474, 476. The trial judge may, in his discretion, intervene in the fact-finding process in order to promote clarity.

We reject Hackney's claim that the trial court's questions were improper. 'The record indicates that the trial court asked several questions in order to clarify S.H.'s confusion over defense counsel's ambiguous references to a "first incident".⁵ Such questions were within the trial court's discretion to clarify S.H.'s testimony and promote economy of time.

Hackney's second allegation of judicial misconduct stems from comments made by the trial court on several occasions indicating his impatience with defense counsel. We note that Hackney neither objected to the trial court's remarks nor moved for a mistrial; he has thus waived any error. Cornett v. State (1983), Ind., 450 N.E.2d 498, 505.

Notwithstanding waiver, we reject Hackney's argument. Prior to instructing the jury, the trial court admonished the jury that both the defense and the prosecution had fully and fairly presented the evidence, and not to interpret any of the court's comments to counsel as against the defendant. He further instructed the jurors that they were the sole judges of the credibility of the witnesses. A proper admonishment to the jury is presumed to cure any alleged error, unless the contrary is shown. Randolph v. State (1978), 269 Ind. 31, 36, 378 N.E.2d 828, 832. Hackney has failed to demonstrate that the trial court's comments influenced the jury's decision. Because the jury heard overwhelming evidence of Hackney's guilt, any error not cured by the court's instructions was harmless. Davis, supra.

Affirmed.

GARRARD, J., concurs. SULLIVAN, J., dissents and files separate opinion.

1 . Ind.Code § 35-42-4-3 (1993).

2 . This rule was first established when our supreme court adopted Federal Rule of Evidence 404(b). Lannan v. State (1992), Ind., 600 N.E.2d 1334, 1336. The recently enacted Indiana Rule of Evidence 404(b) mirrors its federal counterpart. Accordingly, cases which discuss the federal rule apply with equal force to the Indiana rule. See Levi v. State (1994), Ind.App., 627 N.E.2d 1345, 1349, trans. denied.

3 . In his brief, Hackney states that S.H.'s testimony about domestic abuse was inadmissible because it occurred prior to the defense putting her state of mind at issue. We disagree. The record indicates that defense counsel cross-examined State's witnesses Atkinson, Miller and Brown regarding the timing and content of S.H.'s claims prior to S.H. being called to testify.

4 . Defense counsel further waived any error when he failed to request that S.H.'s responses be stricken from the record and that the jury be admonished to disregard them. Wade v. State (1986), Ind., 490 N.E.2d 1097, 1104.

5 . Specifically, the trial court questioned S.H. as follows:

THE COURT: (to S.H.) But when you answered the first incident, which one are you referring to? Are you referring to the first incident in Brook?

A: (S.H.) Yes.

THE COURT: Okay.

[DEFENSE COUNSEL]: Your Honor-

THE COURT: Throughout this testimony, does that help any?

[DEFENSE COUNSEL]: I appreciate your help, Your Honor. I guess, just for the record, I'm going to have to interpose some type of objection because somehow we came here, not through my questions to a response, referring to some other incident which has previously been ruled not a part of this case.

Record, pp. 321-322.