McCarthy v. State

749 N.E.2d 528, 2001 Ind. LEXIS 547, 2001 WL 723169
CourtIndiana Supreme Court
DecidedJune 28, 2001
Docket37S04-0006-CR-359
StatusPublished
Cited by70 cases

This text of 749 N.E.2d 528 (McCarthy v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarthy v. State, 749 N.E.2d 528, 2001 Ind. LEXIS 547, 2001 WL 723169 (Ind. 2001).

Opinion

On Petition to Transfer

RUCKER, Justice.

Case Summary

A jury convicted Timothy McCarthy of one count of sexual misconduct with a minor as a Class B felony and one count of sexual misconduct with a minor as a Class C felony. On initial review McCarthy raised several issues. Finding one issue *532 dispositive, the Court of Appeals reversed the convictions and remanded the cause for a new trial. More specifically, the Court of Appeals determined that the trial court erred in limiting McCarthy’s right to cross-examine a witness on the question of bias and that the error was per se reversible. McCarthy v. State, 726 N.E.2d 789 (Ind.Ct.App.2000). We agree the trial court erred. However, we conclude the error was harmless. We grant transfer on this point and also address the remaining issues which we restate as follows: (1) did the trial court erroneously admit evidence of McCarthy’s prior bad acts; (2) did the trial court err in denying McCarthy’s motion for a change of venue; (3) was the evidence sufficient to support the convictions; and (4) did the trial court err in imposing enhanced and consecutive sentences. We affirm the trial court.

Facts

The facts most favorable to the verdict show that in the fall of 1997, McCarthy was employed as a music teacher and band director at Kankakee Valley High School. K.G. and M.T. attended the school as fifteen-year-old sophomore students. Both participated in the school band and served as McCarthy’s student assistants. On November 4, 1997, McCarthy told M.T. that he needed to speak with her and arranged for her to meet him in the faculty bathroom. Once inside, McCarthy locked the door, kissed M.T., exposed and touched her breasts, exposed himself, and encouraged M.T. to touch his penis. M.T. refused, and the encounter ended when McCarthy unlocked the door and M.T. left the bathroom.

Later that same day, traveling isolated roads, McCarthy drove K.G. home from school. While en route they played a game the parties referred to either as “perdiddle” or “strip perdiddle,” which required participants to remove articles of clothing. After both McCarthy and K.G. were nude, McCarthy pulled to the side of the road where K.G. stroked his penis, and he touched her breasts and placed his finger in her vagina. McCarthy also attempted to engage K.G. in sexual intercourse but was not successful. When a car approached, both scrambled to get dressed. McCarthy then proceeded to take K.G. home.

That evening K.G. and M.T. talked with each other over the telephone and discussed the day’s events. A couple of days later, the two students confronted McCarthy and told him they regretted what they had done and that it never should have happened. McCarthy became angry and told the students not to pretend they were victims and that they had voluntarily engaged in the encounters. Shortly thereafter, the students reported McCarthy’s conduct to school officials.

On November 14, 1997, McCarthy was charged with two counts of sexual misconduct with a minor: Count I as a Class B felony concerning his conduct with K.G. and Count II as a Class C felony concerning his conduct with M.T. A trial conducted in June 1998 ended in a hung jury, and the trial court declared a mistrial. The second trial began in November 1998. In its case-in-chief upon retrial, the State called M.T.’s mother to the stand. On cross-examination, the following exchange occurred:

Q. Mrs. Cooper, you have a lot of animosity towards Mr. McCarthy, and rightfully so. Right?
A. For him molesting my daughter? Yes, I do.
Q. Uh, how much money are you going to make, or do you seek to get because of that?

R. at 1402-03. At this juncture, the State objected, and the trial court sustained the *533 objection. Outside the presence of the jury, McCarthy made the following offer of proof:

Your Honor, I believe if this witness were allowed to [ ] answer this question, she would indicate!] that a Notice of Tort Claim has been filed against [ ] the Kankakee Valley School Corporation [ ] seeking damages from the school corporation and [] perhaps Mr. McCarthy personally, and I believe that that goes to the bias and/or prejudice of the witness, and is an appropriate subject for cross-examination.

R. at 1403. The trial court reaffirmed its ruling, prohibited McCarthy from pursuing this line of inquiry, and admonished the jury to disregard counsel’s question. Ultimately the jury returned a verdict of guilty as charged. The trial court sentenced McCarthy to enhanced and consecutive terms of thirteen years for the Class B felony and five years for the Class C felony. On direct appeal, the Court of Appeals concluded that the trial court erred in denying McCarthy the opportunity to cross-examine Mrs. Cooper on the question of her potential bias due to her financial interest in the outcome of this case. Applying a per se error standard, the Court of Appeals reversed the conviction and remanded the cause for a new trial. The State seeks transfer. We affirm the trial court’s judgment.

Discussion

I.

The right to cross-examine witnesses is guaranteed by the Sixth Amendment to the United States Constitution as well as Article 1, Section 13 of the Indiana Constitution. It is “one of the fundamental rights of our criminal justice system.” Pigg v. State, 603 N.E.2d 154, 155 (Ind.1992). It is true “this right is subject to reasonable limitations placed at the discretion of the trial judge.” McQuay v. State, 566 N.E.2d 542, 543 (Ind.1991). However, the trial court’s exercise of discretion in determining the permissible scope of cross-examination to test the credibility of a witness must be consistent with due process. Timberlake v. State, 690 N.E.2d 243, 255 (Ind.1997). If a witness in a criminal trial has a financial motive for testifying in a certain fashion, then the jury should hear about those matters because they are relevant to the question of the witness’ credibility. Domangue v. State, 654 N.E.2d 1, 3 (Ind.Ct.App.1995); see also Bryant v. State, 233 Ind. 274, 118 N.E.2d 894, 896 (1954) (declaring that cross-examination of a witness who is motivated by financial concerns is properly considered as it affects the credibility of that witness’ testimony). In this case, denying McCarthy the opportunity to cross-examine Mrs. Cooper about an event that the jury may have determined furnished her with a motive for favoring the prosecution violated the Confrontation Clause and thus was error. The question however is whether the error automatically requires reversal.

There is authority for the proposition that a court of review has at its disposal two alternative courses of action when evaluating claims concerning the denial of the right to cross-examine witnesses. According to Haeger v. State, 181 Ind.App. 5, 390 N.E.2d 239 (1979), where the trial court permits “some” cross-examination on the question of witness bias, a court of review should evaluate the error “by the application of the harmless constitutional error test.” Haeger, 390 N.E.2d at 241.

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Cite This Page — Counsel Stack

Bluebook (online)
749 N.E.2d 528, 2001 Ind. LEXIS 547, 2001 WL 723169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-v-state-ind-2001.