Melvin C. Hamilton v. State of Indiana , 2015 Ind. App. LEXIS 770 ( 2015 )

Dec 23 2015, 8:51 am
OPINION ON REHEARING
ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melvin C. Hamilton, December 23, 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.
[1] The State petitions for rehearing following our decision in Hamilton v. State, No.
65A04-1412-CR-592 (Ind. Ct. App. Sept. 9, 2015). The State does not contend
that we erred in concluding that certain vouching testimony was inadmissible at
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trial. However, it vigorously argues that we erroneously held that the improper
admission of that evidence amounted to reversible error. We disagree and
reaffirm our original decision but issue this opinion on rehearing for further
clarification.
[2] First, the State contends we failed to adequately address whether Hamilton
fully preserved his claim of error in the admission of the vouching testimony.
As related in our original opinion, the State elicited testimony from a forensic
interviewer that the victims, D.P. and A.S., had not exhibited certain
characteristics of having been coached, namely whether they had trouble
recalling details or had to start their stories over again after being asked detailed
questions; Hamilton did not object to this testimony. He did, however, object
to subsequent testimony stating that D.P. and A.S. did not exhibit any signs of
coaching.
[3] The State faults us for assessing Hamilton’s claim as one of indivisible ordinary
reversible error instead of differentiating the unobjected-to testimony from the
objected-to testimony. It is unclear what such differentiation would
accomplish. The objected-to testimony was clearly improper, and Hamilton’s
objection should have been sustained per Sampson v. State, 38 N.E.3d 985 (Ind.
2015), and Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012). Hamilton adequately
preserved his claim the State introduced improper vouching evidence against
him.
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[4] We recognize that Hoglund stated, “‘the erroneous admission of evidence which
is cumulative of other evidence admitted without objection does not constitute
reversible error.’” Hoglund, 962 N.E.2d at 1240 (quoting Wolfe v. State, 562
N.E.2d 414, 421 (Ind. 1990)). Here, the interviewer’s final, objected-to
statement that D.P. and A.S. did not exhibit any signs of coaching is not merely
cumulative of the prior unobjected-to testimony regarding two specific
indicators of coaching. It includes a much broader range of possible signs of
coaching beyond the two specifically mentioned. As such, the final statement
was independent from, and potentially more damaging and prejudicial than, the
preceding testimony.
[5] The State also argues our ultimate holding that admission of the vouching
testimony constituted reversible error conflicts with Hoglund. Specifically, the
Hoglund opinion held that the child victim’s testimony in that case “was
substantial evidence of Hoglund’s guilt apart from the erroneously admitted
vouching testimony” and also observed, “The testimony of a sole child witness
is sufficient to sustain a conviction for molestation.” Id. at 1238.
[6] We submit that our original holding regarding reversible error is consistent with
longstanding caselaw, as well as the purpose of the rule against vouching
testimony as recently buttressed by our supreme court in Sampson. Our
supreme court has determined that “indirect” vouching testimony such as that
introduced in Hamilton’s case is wrong because it amounts to improper
“‘testimony that the child witness is telling the truth.’” Sampson, 38 N.E.3d at
992 (quoting Hoglund, 962 N.E.2d at 1237). Such testimony “‘is at odds with
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[Indiana] Evidence Rule 704(b).’” Id. at 989 (quoting Hoglund, 962 N.E.2d at
1237). There is no exception to this rule for child sex abuse cases. Id. (quoting
Hoglund, 962 N.E.2d at 1237).
[7] As our supreme court has observed, “Evidence which would support the
credibility of a person cannot be said to be harmless when the conviction rested
primarily on the credibility of the witness.” Traver v. State, 568 N.E.2d 1009,
1013 (Ind. 1991) (citing Mitchell v. State, 259 Ind. 418, 424–25, 287 N.E.2d 860,
864 (1972)). Moreover, it has been repeatedly held that when reviewing a claim
of preserved reversible error, “The question is not whether there is sufficient
evidence to support the conviction absent the erroneously admitted evidence,
but whether the evidence was likely to have had a prejudicial impact on the
jury.” Camm v. State, 812 N.E.2d 1127, 1137 (Ind. Ct. App. 2004) (citing Currie
v. State, 512 N.E.2d 882, 883-84 (Ind. Ct. App. 1987), trans. denied), trans. denied;
see also Shepherd v. State, 902 N.E.2d 360 (Ind. Ct. App. 2009), trans. denied; Otto
v. State, 398 N.E.2d 716, 717 (Ind. Ct. App. 1980). Indeed, our supreme court
has adopted the United States Supreme Court’s following definition of non-
constitutional reversible error:
“If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but very slight effect, the verdict
and the judgment should stand . . . But if one cannot say, with
fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected. The inquiry
cannot be merely whether there was enough to support the result, apart
from the phase affected by the error. It is rather, even so, whether the
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error itself had substantial influence. If so, or if one is left in
grave doubt, the conviction cannot stand.”
Miller v. State, 575 N.E.2d 272, 275 (Ind. 1991) (quoting Kotteakos v. United
States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248 (1946)) (emphasis added).
[8] In light of this authority, we decline to hold that the erroneous introduction of
vouching evidence in Hamilton’s case, over objection, was harmless simply
because D.P. and A.S. testified about the alleged molestations. Such testimony
clearly was sufficient to support Hamilton’s convictions, but that is not the sole
consideration when determining whether there was reversible error. Our
supreme court has deemed that vouching testimony such as that given here is
inadmissible because it violates Evidence Rule 704 and improperly allows one
witness to comment on another witness’s credibility, and that there is no special
exception to this rule for child sex abuse cases. Unless there is to be a special
exception to the general harmless error rule for child sex abuse cases, we adhere
to what we said in our original opinion:
[I]t is extremely difficult to imagine a scenario in which
[vouching] 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.
[9] Hamilton, slip op. at 11.
[10] With these observations, we reaffirm our original decision.
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Kirsch, J., and Najam, J., concur.
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