Christopher Sutton v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Mar 14 2016, 5:40 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Kelly A. Kelly Ian McLean
Deputy Pubic Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Sutton, March 14, 2016
Appellant-Defendant, Court of Appeals Case No.
01A05-1507-PC-882
v. Appeal from the Adams Circuit
Court
State of Indiana, The Honorable Chad E. Kukelhan,
Appellee-Plaintiff. Judge
Trial Court Cause No.
01C01-1201-PC-1
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Christopher Sutton was convicted of child molesting as a
Class A felony. He subsequently filed a petition for post-conviction relief
alleging ineffective assistance of counsel. During the course of post-conviction
proceedings, Sutton served the State with four proposed Non-Party Requests for
Production of Documents and Subpoenas Duces Tecum pursuant to Indiana
Trial Rule 34(C). The requests were directed at four medical providers and
sought the child victim’s medical records. The State objected to the requests.
The post-conviction court sustained the State’s objection but certified the matter
for interlocutory appeal. We accepted jurisdiction. Concluding the post-
conviction court’s ruling will not prejudice Sutton’s ineffective assistance claim,
we affirm the post-conviction court’s order quashing Sutton’s subpoenas.
Facts and Procedural History
[2] Many of the facts relevant to Sutton’s conviction were recounted by this court
on direct appeal:
Seven-year-old Z.H. lived with her mother S.C, her three-year
old brother, and thirty-two-year-old Sutton. S.C. and Sutton had
lived together for “about 2, 2 years,” and Z.H. called Sutton
“daddy.” On July 8, 2008, Z.H. and her brother were in bed
with S.C. and Sutton. Z.H. had an issue with wetting herself at
night and wore a pull-up diaper. S.C, who is a sound sleeper, did
not hear Sutton leave the next morning.
S.C. woke up around 7:00 a.m., and Z.H. was already awake.
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Z.H. went into the bathroom and her mother told her to take off
her clothes so that she could take a bath. Z.H. told S.C. that her
vagina hurt. S.C. told Z.H. that she “probably peed [her] pants,
um go ahead and take your clothes off you’ll be fine,” and Z.H.
stated “no mom my vagina hurts because . . . daddy stuck his
penis in my vagina.”
Without talking to Z.H. about what had happened, S.C. called
her mother. S.C.’s mother and sister arrived, and her sister called
the police. Later that day, Danielle Goewert of the Fort Wayne
Child Advocacy Center interviewed Z.H. and the interview was
recorded. Z.H. informed Goewert that Sutton put his penis in
her vagina the previous night. Z.H. stated that Sutton was asleep
because his eyes were closed. Z.H. stated that Sutton’s penis
touched her pull-up diaper and that her pull-up diaper went into
her vagina. Z.H. also stated that her brother once smacked her in
her vagina.
After her interview, Z.H. was examined at the Fort Wayne
Sexual Assault Treatment Center by Sharon Robinson, the chief
administrative officer and a sexual assault nurse examiner.
Robinson asked Z.H. what had happened to her, and Z.H. stated
that her “daddy put his penis inside [her] vagina and that he
pushed [her] pull up inside with his penis . . . .” Robinson
observed Z.H.’s “internal female sex organ” and “her labia
minera,” which she described as [“]really dark red . . . .”
Robinson also observed petechiae, which is “pin point bruising,”
on Z.H.’s labia minera and above her urethra.
When Sutton arrived home, Berne Police Detective James
Newbold identified himself to Sutton and asked him if he would
come to the police department with him. Sutton said that he
would and asked if he was going to jail. During the interview,
Detective Newbold told Sutton that the interview related to the
fact that Z.H. had told her mother that her vagina hurt. Sutton
stated that Z.H. had complained about her vagina hurting for
probably the last year. Detective Newbold asked Sutton if there
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was a particular reason why Z.H.’s vagina would be hurting, and
Sutton stated that over the weekend Z.H. complained that she
had been hurt on the “swings or something,” but Z.H.’s aunt
checked her and determined that she was only scratched. Sutton
denied placing his penis in Z.H.’s vagina. When asked why Z.H.
would say that he had placed his penis in her vagina, Sutton
stated that he is erect in the mornings and that he must roll over
Z.H. to exit the bed but that his penis did not touch her. Sutton
also indicated that he attempts to be sure that he is “clear” of the
children and is “careful” because he knows the children are
usually in the bed.
***
On July 14, 2008, the State charged Sutton with child molesting
as a class A felony. On December 29, 2008, the State filed a
notice of intent to introduce Z.H.’s statement at trial pursuant to
Ind. Code § 35-37-4-6, the Protected Persons Statute, and later
filed amended notices. On January 5, 2009, the State filed an
amended information for child molesting as a class A felony. On
June 16, 2009, the court held a protected person hearing on the
State’s motion, which Sutton attended. Sutton’s counsel
questioned Z.H. Barbara Gelder, a psychologist at the Center for
Neuro-Behavioral Services, testified that she had previously met
Z.H., reviewed her medical file, and believed that Z.H. would
suffer harm by testifying. On June 23, 2009, the court entered an
order concluding that Z.H. was a protected person, was
unavailable to testify at the trial, and was made available for and
was cross-examined by defense counsel during the protected
person hearing.
Sutton v. State, No. 01A05-1002-CR-75, 2010 WL 5386318, at *1-2 (Ind. Ct.
App. Dec. 21, 2010) (citations omitted), trans. denied. At trial, the State offered
into evidence a recording of Z.H.’s interview at the Child Advocacy Center, as
well as Z.H.’s testimony from the protected person hearing. Both exhibits were
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admitted and played for the jury. S.C. testified that “Z.H. stated that her vagina
hurt because Sutton ‘stuck his penis in [her] vagina.’” Id. at *2. Sutton also
testified and denied touching Z.H. in a sexual manner.
[3] The jury found Sutton guilty of child molesting as a Class A felony, and the
trial court sentenced Sutton to forty-five years in the Department of Correction,
with five years suspended. Sutton appealed his conviction, arguing the trial
court erred in admitting Z.H.’s out-of-court statements and portions of Sutton’s
interview with Detective Newbold. Finding no reversible error, we affirmed
Sutton’s conviction, and our supreme court denied his petition to transfer.
Sutton subsequently filed a petition for post-conviction relief alleging ineffective
assistance of counsel. Relevant here, Sutton contends in his petition,
[T]rial counsel failed to conduct an adequate pre-trial
investigation and therefore failed to discover and present . . .
medical evidence (including evidence of a playground incident
the day before the date when Sutton was alleged to have
molested Z.H.) that could have been used to show that the
physical injuries and emotional impairment of Z.H. were not
caused by Sutton . . . .
Appendix to Brief of Petitioner-Appellant at 14.
[4] On December 11, 2014, Sutton served the State with four proposed Non-Party
Requests for Production of Documents and Subpoenas Duces Tecum pursuant
to Indiana Trial Rule 34(C). The requests were directed at four different
medical providers and sought “[a]ll medical records” or “[a]ll medical records
and/or counseling records” for Z.H. dated through July 2008. Id. at 57-74.
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The State filed an objection to the requests on December 16, 2014. The State
maintained Sutton was “not entitled to a second opportunity to discover the
same evidence that he could have discovered prior to trial” and further objected
because Sutton failed to state “why all of the victim’s medical and counseling
records from the victim’s birth through July 2008 are relevant or necessary.” Id.
at 49-50. Sutton filed a response to the State’s objection, arguing the victim’s
medical records are discoverable under Indiana Trial Rule 26 and relevant to
his petition for post-conviction relief because trial counsel should have reviewed
such records in order to rule out alternative explanations for the victim’s
injuries:
Counsel has consulted with Dr. Steven R. Guertin, MD, at
Sparrow Children’s Center in Lansing, Michigan about Sutton’s
case. After a review of case materials, Dr. Guertin opined that
the medical condition of the victim could have resulted from
something other than an incident of molestation. Specifically,
the scattered petechiae and redness/swelling could have been
caused by aggressive masturbation, straddle injury, streptococcal
disease and/or lichen sclerosis et atrophicus.
Id. at 53.1
[5] At a hearing held on February 6, 2015, the State argued the issue was already
litigated at trial because the nurse who conducted Z.H.’s sexual assault
1
Lichen sclerosis et atrophicus is a chronic skin disease characterized by the eruption of flat white hardened
papules. Merriam-Webster Online Medical Dictionary, http://www.merriam-
webster.com/medical/lichen%20sclerosus%20et%20atrophicus (last visited Mar. 3, 2016).
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examination testified “the only cause” of Z.H.’s injuries was “[p]enetrati[on]
inside her female sex organ.” Transcript of Trial at 353. The nurse found
Z.H.’s injuries to be consistent with Z.H.’s account of the molestation and
explained to the jury why she believed the injuries were caused by penetration
as opposed to external blunt force trauma or diaper rash. The nurse also
testified that she obtained Z.H.’s medical history prior to conducting the
examination: “prior hospitalizations, any medicines that she currently [was] on,
any medical conditions that she has.” Id. at 341. The nurse completed a
medical history form, which lists attention deficit hyperactivity disorder and
epilepsy as Z.H.’s previous medical history, but she did not offer specific details
about Z.H.’s medical conditions when she testified at trial.
[6] Sutton, by counsel, argued Dr. Guertin would be unable to form an opinion
without additional information about the victim’s medical history, but Sutton
conceded he did not know the extent to which such records were previously
discovered. Post-conviction counsel could not locate Sutton’s file, and trial
counsel could not remember the specifics of the case. Post-conviction counsel
was consulting the State’s file, which contained some medical records but none
that referenced the victim’s “official diagnosis.” Transcript of Hearing at 5.
[7] Following the hearing, the post-conviction court issued an order sustaining the
State’s objection. Sutton filed a motion to certify the matter for interlocutory
appeal pursuant to Indiana Appellate Rule 14(B). The post-conviction court
certified its order quashing Sutton’s subpoenas on June 19, 2015, and we
accepted jurisdiction over the appeal on August 7, 2015.
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Discussion and Decision
A. Standard of Review
[8] “Post-conviction proceedings are civil proceedings in which the defendant must
establish his claims by a preponderance of the evidence.” Wilkes v. State, 984
N.E.2d 1236, 1240 (Ind. 2013). The proceedings are “governed by the same
rules ‘applicable in civil proceedings including pre-trial and discovery
procedures.’” Id. at 1251 (quoting Ind. Post-Conviction Rule 1(5)). Post-
conviction courts are given broad discretion in ruling on discovery matters,
however, and we affirm their determinations absent a showing of clear error
and resulting prejudice. Id.
[9] Sutton’s petition for post-conviction relief alleges he received ineffective
assistance of trial counsel. To establish a claim of ineffective assistance of
counsel, a defendant must demonstrate (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Counsel’s performance was deficient if it
fell below an objective standard of reasonableness based on prevailing
professional norms. Id. at 688. Likewise, a defendant is prejudiced by counsel’s
deficient performance only if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
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B. Z.H.’s Medical Records
[10] Sutton contends he may have a viable claim for ineffective assistance of counsel
because trial counsel possibly failed to investigate Z.H.’s medical history. Sutton
argues he is now entitled to discover Z.H.’s medical records because the records
may contain information that could provide an alternative explanation for Z.H.’s
injuries. In the event the victim’s records did contain this sort of information,
Sutton argues trial counsel would have presented the information to the jury had
he known of the records, which could have resulted in Sutton’s acquittal.
[11] Under the particular facts and circumstances presented here, we cannot say the
post-conviction court’s ruling will result in prejudice to Sutton’s ineffective
assistance claim. See Wilkes, 984 N.E.2d at 1251. Even assuming Z.H.’s
medical records contain information that could provide an alternative
explanation for Z.H.’s injuries, this evidence would not show counsel failed to
adequately investigate, nor would it establish a reasonable probability that the
result of the proceeding would have been different. See Strickland, 466 U.S. at
694. As explained above, post-conviction counsel could not locate Sutton’s file,
and trial counsel could not remember the specifics of Sutton’s case. And in
light of the testimony of the sexual assault nurse, who ruled out alternative
explanations, as well as Z.H.’s disclosure of the abuse, we cannot say an
alternative medical explanation would undermine our confidence in the
outcome of Sutton’s trial.
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[12] Absent clear error and resulting prejudice, we do not disturb a post-conviction
court’s discovery rulings. Wilkes, 984 N.E.2d at 1251. We see no resulting
prejudice here and accordingly must affirm the post-conviction court’s order
quashing Sutton’s subpoenas.
Conclusion
[13] The post-conviction court’s ruling will not prejudice Sutton’s ineffective
assistance claim because evidence supporting an alternative medical
explanation for Z.H.’s injuries would demonstrate neither deficient
performance, nor prejudice to the defense sufficient to undermine confidence in
the outcome of Sutton’s trial. We therefore affirm the post-conviction court’s
order quashing Sutton’s subpoenas.
[14] Affirmed.
Barnes, J., and Altice, J., concur.
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