Christopher C. Norris v. State of Indiana
53 N.E.3d 512
Ind. Ct. App. Recl.2016Background
- In August 2014, Christopher C. Norris lived with Nicole Pappas and her 4-year-old son J.B.; Norris’s other children observed Norris spanking J.B. and noted bruising.
- On August 25, 2014, J.B. was removed after his father and DCS observed bruises and handprint marks; medical exam documented significant bruising and hand/finger marks.
- State charged Norris with Level 5 felony battery; the State sought admission of J.B.’s out-of-court statements under Indiana’s protected-person statute.
- At a pretrial protected-person hearing, clinical psychologist Dr. David Lombard testified that J.B. had anxiety/reactive attachment issues and that testifying in Norris’s presence could worsen those conditions; the court also heard testimony from forensic interviewer Pat Smallwood and others.
- The trial court found J.B. unavailable as a protected person, admitted his videotaped forensic interview and allowed up to three witnesses to testify about J.B.’s statements; the jury convicted Norris and he received five years executed (two years suspended).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Norris) | Held |
|---|---|---|---|
| 1. Whether J.B. was properly found "unavailable" under I.C. § 35-37-4-6(e)(2)(B)(i) | Court may base unavailability on psychiatrist/physician/psychologist testimony plus other evidence; Dr. Lombard’s testimony and Smallwood’s observations supported finding. | Statute requires the unavailability finding be drawn only from testimony of psychiatrist/physician/psychologist and any "other evidence" must be documents/records, not additional witness testimony; medical testimony used hypothetical language (may/might) so insufficient. | Court affirmed: psychologist testimony sufficed and trial court permissibly considered other testimonial evidence (Smallwood); the court properly found J.B. unavailable. |
| 2. Admissibility of J.B.’s videotaped forensic interview (reliability) | Videotape showed spontaneity, developmentally appropriate language, demonstrative behavior and corrections of interviewer; time/content/circumstances showed sufficient indicia of reliability. | Interview occurred 29 days after removal and Norris argues reliability was lacking and statements susceptible to coaching. | Court affirmed: forensic interview contained sufficient indicia of reliability (spontaneity, consistency, demonstratives, corrections). |
| 3. Admissibility of hearsay through three additional witnesses (FCM Gorman, Arambula, Swanson) | The statute permits limited additional witnesses; their testimony was brief, consistent with the videotape, used appropriate questioning, and reliable. | Some witnesses were not listed or did not testify at the protected-person hearing; remoteness and potential for coaching undermined reliability. | Court affirmed admission: objections were waived as to some bases; statements to Gorman and Swanson were reliable and Swanson’s testimony matched earlier statements; admission proper. |
| 4. Permissible scope of expert testimony re: coaching (vouching) and whether multiple witnesses created improper "drumbeat" repetition | Experts may describe indicia of coaching but must avoid inviting the jury to infer truth; limited repetitive testimony can be harmless where independent evidence supports conviction. | Smallwood’s testimony crossed into impermissible vouching by applying behavioral profile to J.B.; cumulative repetition of J.B.’s allegations by multiple witnesses created prejudicial drumbeat. | Court held Smallwood’s testimony was improper vouching (error) but harmless given substantial independent evidence; drumbeat claim waived and not fundamental error because witness testimony was brief/consistent and did not unduly prejudice jury. |
Key Cases Cited
- Carpenter v. State, 786 N.E.2d 696 (Ind. 2003) (trial courts have heightened responsibility in protected-person determinations)
- Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012) (expert testimony that functionally declares a child truthful violates Evid. R. 704(b))
- Samson v. State, 38 N.E.3d 985 (Ind. 2015) (expert testimony about coaching behaviors may be inadmissible if it allows jury to infer coaching absent defendant opening the door)
- Pierce v. State, 677 N.E.2d 39 (Ind. 1997) (trial courts must use special care when finding indicia of reliability for protected-person statements)
- M.T. v. State, 787 N.E.2d 509 (Ind. Ct. App. 2000) (factors for reliability include timing, opportunity for coaching, nature of questioning, spontaneity, repetition)
- Modesitt v. State, 578 N.E.2d 649 (Ind. 1991) (repetitive pre-victim testimony by multiple witnesses may unduly prejudice jury)