Melvin C. Hamilton v. State of Indiana , 2015 Ind. App. LEXIS 618 ( 2015 )

Sep 09 2015, 8:53 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William W. Gooden Gregory F. Zoeller
Mt. Vernon, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melvin C. Hamilton, September 9, 2015
Appellant-Defendant, Court of Appeals Cause No.
65A04-1412-CR-592
v. Appeal from the Posey Circuit
Court
State of Indiana, The Honorable James M.
Appellee-Plaintiff. Redwine, Judge
Trial Court Cause No.
65C01-1403-FA-71
Barnes, Judge.
Case Summary
[1] Melvin Hamilton appeals his convictions for three counts of Class A felony
child molesting. We reverse and remand.
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Issue
[2] The sole restated issue before us is whether the trial court properly allowed
witnesses for the State to vouch for the credibility of the alleged victims.
Facts
[3] A.S. and D.P. are the foster children of Heather and Charles Reese. Hamilton
is Charles’s stepfather. Hamilton frequently babysat the children at his home in
Posey County. In 2014, A.S. was ten, and D.P. was five. A.S. and D.P. called
Hamilton “Pappy.” Tr. p. 29.
[4] On February 24, 2014, A.S. and D.P. spent the night at Hamilton’s house.
During the night, D.P. awoke to Hamilton putting his finger in her “private.”
Id. at 46. A.S. was in the same room at the time, and Hamilton also put his
finger in her “private” while D.P. watched. Id. at 56. Hamilton had done
similar things to A.S. on at least five prior occasions.
[5] On the following morning, D.P. spontaneously told Heather that Pappy had
touched her; when asked where, D.P. pointed to her vagina. Both D.P. and
A.S. subsequently were interviewed by Molly Elfreich, a trained forensic
interviewer, and D.P. and A.S. described the molestations to her. A medical
doctor also examined D.P. and A.S., who recounted the molestations to the
doctor.
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[6] After the forensic interview and medical examination, Detective Jeremy
Fortune of the Posey County Sheriff’s Department interviewed Hamilton.
During the interview, the following exchanged occurred:
[Fortune]: [T]his is the thing, Chuck, for a five year old to say
somebody stuck their finger in my vagina is pretty powerful.
[Hamilton]: Very much so.
[Fortune]: That’s pretty powerful.
[Hamiton]: Where, where is she coming up with that?
[Fortune]: And, and to say “Pappy did it” . . .
[Hamilton]: Exactly.
[Fortune]: . . . that’s even more powerful.
[Hamilton]: I agree.
Ex. 7 p. 29.
[7] The State charged Hamilton with three counts of Class A felony child molesting
and one count of Class C felony child molesting. At his jury trial, during cross-
examination of D.P., counsel for Hamilton asked, “Has anyone told you what
to say today?” Tr. p. 51. D.P. said no one had. Similarly, counsel for
Hamilton asked A.S. during cross-examination, “Has anyone told you what
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you should say here today?” Id. at 59. A.S. stated only that she had been told
to tell the truth.
[8] The State also called Elfreich to testify after D.P. and A.S. testified. Without
objection, the State asked Elfreich to describe various factors that she would
look for as indicators that a child had been coached; namely, whether the child
has trouble recalling details or has to start a story over when detailed questions
are asked. Also without objection, the State asked Elfreich whether she had
observed those factors when interviewing D.P. and A.S., and she testified that
she had not. Then, over Hamilton’s objection, the State asked Elfreich whether
she had observed any indicators of coaching in either child, and she testified
that she had not. Also, Hamilton objected to the jury hearing Detective
Fortune say during his interview of Hamilton that D.P.’s statements describing
her molestation had been “powerful.” Ex. 7 p. 29. The trial court overruled
this objection.
[9] The jury found Hamilton guilty of three counts of Class A felony child
molestation and not guilty of the Class C felony child molestation charge. The
trial court sentenced Hamilton accordingly, and he now appeals.
Analysis
[10] Hamilton contends that the trial court erred in overruling his objections to
purported vouching by Elfreich and Detective Fortune regarding the
truthfulness of D.P.’s and A.S.’s testimony. “A trial court has broad discretion
in ruling on the admissibility of evidence and we will disturb its rulings only
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where it is shown that the court abused that discretion.” Hoglund v. State, 962
N.E.2d 1230, 1237 (Ind. 2012). “An abuse of discretion occurs when the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it.” Id.[11] In Hoglund, our supreme court addressed existing case law regarding vouching
testimony in the context of child sex abuse cases. Specifically, in Lawrence v.
State, 464 N.E.2d 923, 925 (Ind. 1984), the court had held that trial courts were
allowed to permit “some accrediting of the child witness in the form of opinions
from parents, teachers, and others having adequate experience with the child,
that the child is not prone to exaggerate or fantasize about sexual matters.” The
Hoglund court noted that Lawrence predated the adoption of the Indiana
Evidence Rules. In particular, Indiana Evidence Rule 704(b), enacted in 1994,
provides: “Witnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a
witness has testified truthfully; or legal conclusions.” Cases decided by this
court after adoption of the Evidence Rules construed Lawrence “as representing
an exception to Rule 704(b) noting that the Rule is relaxed in the child
molestation context.” Hoglund, 962 N.E.2d at 1234 (citing, e.g., Rose v. State,
846 N.E.2d 363, 367 (Ind. Ct. App. 2006)).
[12] The Hoglund court overruled Lawrence. Specifically, the court held allowing
testimony that a child is not prone to exaggerate or fantasize about sexual
matters is “indirect vouching testimony [that] is little different than testimony
that the child witness is telling the truth.” Id. at 1237. The court held that such
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testimony is at odds with Evidence Rule 704(b) and that it was inappropriate to
carve out an exception to the rule for sex abuse cases. Id.
[13] In Kindred v. State, 973 N.E.2d 1245 (Ind. Ct. App. 2012), trans. denied, this
court addressed Hoglund’s holding in the context of testimony related to
whether an alleged child sex abuse victim had been “coached.” Ultimately, we
stated:
We hold that general testimony about the signs of coaching, as
well as the presence or absence of those signs in the child victim
at issue, preserves the ultimate credibility determination for the
jury and therefore does not constitute vouching. By contrast,
where a witness opines as to whether the child victim was
coached—offering an ultimate opinion . . . the witness invades
the province of the jury and vouches for the child.
Kindred, 973 N.E.2d at 1258. Another panel of this court followed Kindred in
Archer v. State, 996 N.E.2d 341 (Ind. Ct. App. 2013), trans. denied.
[14] Very recently, in Sampson v. State, No. 87S01-1410-CR-684 (July 30, 2015), our
supreme court overruled Kindred and Archer.1 In Sampson, the State asked a
forensic interviewer a number of questions related to coaching of alleged child
sex abuse victims, including what the possible signs are of a child having been
1
Although the Sampson opinion does not mention Bean v. State, 15 N.E.3d 12 (Ind. Ct. App. 2014), trans.
denied, part of that case has been called into question by Sampson. Specifically, we stated in Bean that
testimony from a forensic interviewer that he did not observe any signs of inaccuracy or coaching in the
alleged molestation victim was not improper vouching. Bean, 15 N.E.3d at 20, n.5. After Sampson, this
statement is inaccurate. We note that the trial court specifically relied upon this footnote in Bean in
overruling Hamilton’s objection to Elfreich’s testimony.
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coached and whether the interviewer had observed any such signs in the alleged
victim in the case. The defendant failed to object to any of the questions and
was convicted of Class C felony child molesting.
[15] After reviewing case law from Indiana and other jurisdictions, the court held:
We conclude therefore that the subtle distinction between an
expert’s testimony that a child has or has not been coached versus an
expert’s testimony that the child did or did not exhibit any “signs or
indicators” of coaching is insufficient to guard against the dangers
that such testimony will constitute impermissible vouching as we
expressed in Hoglund. Nevertheless, “once a child’s credibility is
called into question proper expert testimony may be
appropriate.” Steward [v. State], 652 N.E.2d [490,] 499 [(Ind.
1995)]. “[B]ehavioral characteristics of child abuse victims, even
where inadmissible to prove abuse, are far less controversial
when offered to rebut a claim by the defense that a child
complainant’s behavior . . . is inconsistent with her claim of
abuse.” Id. at 496. We thus align ourselves with those
jurisdictions that permit testimony about the signs of coaching
and whether a child exhibited such signs or has or has not been
coached, provided the defendant has opened the door to such
testimony.
Sampson, slip op. at 9.2
[16] The Sampson opinion also contains the following observation as to what
constitutes “opening the door” to otherwise inadmissible vouching evidence:
“Opening the door refers to the principle that where one party introduces
2
The time period for filing a petition for rehearing in Sampson has not yet passed.
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evidence of a particular fact, the opposing party is entitled to introduce evidence
in explanation or rebuttal thereof, even though the rebuttal evidence otherwise
would have been inadmissible.” Id. at p. 9 n.4. “‘The door may be opened
when the trier of fact has been left with a false or misleading impression of the
facts.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009)). Although
this court has generally stated that, “when a defendant interjects an issue in a
trial, he opens the door to otherwise inadmissible evidence,” we also have
emphasized, “evidence relied upon to open the door must leave the trier of fact
with a false or misleading impression of the facts related.” Beauchamp v. State,
788 N.E.2d 881, 896 (Ind. Ct. App. 2003).
[17] In Steward, relied upon by the Sampson opinion, the court held that expert
testimony regarding “child sexual abuse syndrome” is inadmissible unless a
defendant has first called a child’s credibility into question. Steward, 652
N.E.2d at 499. Specifically, the court noted that “if the defense discusses or
presents evidence of” behavior that is seemingly inconsistent with having been
abused, “or if during trial testimony the child recants a prior allegation of
abuse,” then expert testimony regarding “child sexual abuse syndrome” may be
admissible. Id.
[18] Ultimately, the Sampson court held that, although any testimony opining
whether a child has been coached is inadmissible, such testimony did not
constitute fundamental error in the case before it. Sampson, slip op. at 10.
Specifically, the court noted that defense counsel had thoroughly cross-
examined the alleged victim, whose testimony never wavered from that given
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during direct examination. Id. The defendant’s testimony also coincided with
the alleged victim’s in many ways, except for the having denied molesting the
victim. Id. And, the defendant had thoroughly cross-examined the forensic
interviewer regarding the basis on which she had reached her conclusion that
the alleged victim had not been coached. Id.
[19] Here, Hamilton did not object to testimony by Elfreich regarding whether either
D.P. or A.S. had trouble recalling details or had to start their narrative over
when being asked detailed questions, which according to Elfreich would have
been indicators of coaching. However, Hamilton did object to Elfreich being
asked, “did you observe any indicators of coaching” in either D.P. or A.S., to
which she responded “No, I did not.” Tr. p. 81. Hamilton’s failure to object to
the first questions but objecting to the last question was consistent with this
court’s holdings in Kindred and Archer. Also, Hamilton’s objection to Elfreich’s
ultimate opinion on coaching preserved the issue for review, unlike in Sampson.
It is clear under Sampson that all of Elfreich’s testimony regarding indicators of
coaching was inadmissible. It is the type of vouching testimony deemed to
improperly invade the province of the jury to assess witness credibility. See
Head v. State, 519 N.E.2d 151, 153 (Ind. 1988) (reversing molestation
convictions for improper vouching evidence described as “an invasion of the
province of the jury in determining what weight they would place upon the
child’s testimony.”).
[20] In overruling Hamilton’s objection, the trial court ruled in part that Hamilton
had “opened the door” to Elfreich’s coaching testimony because he had asked
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both D.P. and A.S. during cross-examination whether anyone had told them
what to say in court. However, both D.P. and A.S. denied having been told
what to say by anyone. On appeal, the State does not argue that Hamilton
opened the door to Elfreich’s testimony, and it is correct not to do so. Merely
asking the witnesses whether they had been told what to say is not equivalent to
presenting evidence that they had been told what to say, or creating a false
impression in the jury that they had been. The witnesses unequivocally
answered no to the questions—there was no evidence or suggestion in any
testimony that the girls had been coached. As such, Hamilton did not open the
door to Elfreich’s testimony.
[21] Unlike in Sampson, Hamilton preserved his claim of error with respect to
Elfreich’s testimony, and so we review it for ordinary reversible error, not
fundamental error. We will reverse a conviction for preserved error in the
admission of evidence if the error is inconsistent with substantial justice or
affects the substantial rights of a party. Bradford v. State, 960 N.E.2d 871, 877
(Ind. Ct. App. 2012) (citing Ind. Trial Rule 61). In analyzing the prejudicial
effect on a defendant’s substantial rights from the erroneous admission of
evidence, we look to the probable impact of the evidence on the factfinder. Id.The improper admission of evidence is deemed harmless if there is substantial
independent evidence of guilt supporting a conviction such that we can say
there is no substantial likelihood that the questioned evidence contributed to the
conviction. Id. (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)).
“‘Reversal may be compelled if the record as a whole discloses that the
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erroneously admitted evidence was likely to have had a prejudicial impact on
the fact-finder, thereby contributing to the judgment.’” Id. (quoting Ground v.
State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998)). If we determine that an
evidentiary error had substantial influence on a verdict, or if we are left in grave
doubt as to whether it did so, we must reverse the conviction. Id.[22] We cannot say that the erroneous admission of Elfreich’s vouching testimony
was harmless. There was no corroborating evidence of Hamilton’s guilt apart
from the testimony of D.P. and A.S. The only value of Elfreich’s testimony
was to improperly bolster the credibility of D.P. and A.S. If there is to be a rule
barring vouching testimony such as Elfreich’s, then it is extremely difficult to
imagine a scenario in which such testimony, where an objection to it was raised
at trial, is harmless in a case such as this where a conviction depends entirely
upon assessing the credibility of the alleged victim. Otherwise there would
seem to be little point in having such a rule. We conclude that the erroneous
admission of Elfreich’s testimony likely had a substantial influence on the jury’s
guilty verdicts. Therefore, we are compelled to reverse Hamilton’s convictions
and to remand for a new trial.
[23] For purposes of remand, we also address Hamilton’s contention that Detective
Fortune improperly vouched for D.P. when, during his interview of Hamilton,
he stated several times that her statements were “powerful.” Ex. 7 p. 29. We
acknowledge that statements made by police officers during interrogations
potentially can be problematic under Evidence Rule 704(b). See Lampkins v.
State, 778 N.E.2d 1248, 1251 (Ind. 2002). Still, we cannot say that these
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comments amounted to improper vouching in the context in which they were
made. In the framework of hearsay claims, statements by an officer designed to
elicit a response from the defendant, as opposed to statements of fact, generally
are admissible without the necessity of an admonishment or limiting
instruction. Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999). Here, similarly,
Detective Fortune’s saying that D.P. had made “powerful” statements were
related to attempting to elicit a response from Hamilton. Hamilton did respond
by agreeing that the statements were “powerful” but denied molesting D.P. or
A.S. Viewing Detective Fortune’s statements from the perspective of them
being part of a police interview, we do not believe they carry the same vouching
force as trial testimony to that effect. Hamilton also fails to cite any authority
in a similar case addressing statements similar to Detective Fortune’s. We
conclude there was no error in the admission of those statements.
Conclusion
[24] The trial court committed reversible error in admitting Elfreich’s testimony
regarding whether D.P. or A.S. had been coached. However, Detective
Fortune’s statements during his interview with Hamilton did not constitute
improper vouching. We reverse Hamilton’s convictions and remand for retrial
consistent with this opinion.
[25] Reversed and remanded.
Kirsch, J., and Najam, J., concur.
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