*1 Yeah, I Chris Cotterill: mean— Marq Appellant HALL, Harry a ... There’s Danz Jeff Miller: (Defendant below),
who works—who executive JA[CI]; his committee at wife works
Ice Miller. Indiana, Appellee of STATE Okay. I— Chris Cotterill: (Plaintiff below). sense. Jeff Miller: that would make So 49S05-1412-CR-728. No. added). (emphases Miller con- Id. Supreme of Indiana. “diligent pursuing tends he has been identity true of Doe # 8” not learn and did July 2015. # actually Doe 8 was Danz until the Rehearing Sept. Denied 2015. deposition January of Ms. Cotterill on admits, Reply at 4. Miller 2013. Br. how-
ever, suspected Doe #8” “may he specific “could not name individual”
until he “knew from sworn
identity of # 8.” Id. at 5 n. Be- Doe undisputed knowledgé
cause of of Miller’s probable identity
Danz’s existence and be- action, he this
fore initiated neither identity
existence nor her “unknown” Miller, 17(F), in Trial Rule required
and thus Miller avail cannot himself
Rule’s authorization insert her name “at
any in- expansively time.” We decline as,
terpret apply “unknown” used Rule, thus find the circumstances plaintiffs knowledge probable this identity to have
defendant’s been sufficient preclude unlimit- operation the Rule’s
ed statute of limitations. extension
Conclusion
Finding identity that the existence and
of Kristine Danz not unknown to C. .was plaintiff before commenced ac-
tion, yet he until after expiration waited applicable statute to sub- limitations #8,
stitute her John name Doe summary favor. judgment
affirm Danz’s
RUSH, C.J., RUCKER, DAVID, MASSA, JJ., concur.
On Petition to Transfer from the Indiana Appеals, No. 49A05-1312- CR-614 *3 DAVID, Justice.
Following trial, Marq Hall was of convicted class A felony molesting. child appeal, On he claimed that the trial court denying erred his motion to compel the victim’s mother answer a deposition question about an incident in the victim’s past in excluding from evidence a phone conversation with the victim’s moth- they er discussed the incident. Finding that abused its instances, discretion in both of Appeals reversed Hall’s conviction and re- However, manded for a new trial. our review the light in a construed conviction, most favorable leads us errors, conclude that the two even if considered violations Hall’s Sixth Amendment to confront witnesses him, were a rea- sonable affirm doubt. We accordingly Hall’s conviction. History
Facts and Procedural In September of Marq Hall was living in an Indianapolis apartment with girlfriend A.D. twelve-year-old and her daughter M.T. Hall very had recently decided to relationship end their after together. a few months Septem- On 19th, ber Hall and A.D. were in pro- splitting cess of up, but Hall was still residing in apartment. That after- noon, he was home alone with M.T. Hall approached M.T. from behind and rubbed Boots, Johnson, Valerie K. Ruth A. In- buttocks, penis on her which were cov- IN, dianapolis, Attorneys Appellant. for shorts, gym ered couple then pulled minutes. He Zoeller, down her shorts Gregory Attorney F. General Indiana, underwear, Worden, pinned bed, Michael her to a G. Chandra K. Hein, General, Deputy Attorneys her to India- forced have sexual intercourse with IN, napolis, Attorneys Appellee. him. that were over, girl’s vaginal tions area felt M.T.
When ordeal Though sub- penetration. consistent with wiped leg. promptly spot on She wet the exami- sequent testing samples paper. with toilet spot on M.T.’s nation did not reveal DNA took rape, Minutes after the underwear, body or a trace amount shower, M.T. he was shower. While on Hall’s semen found the crotch wearing she clothes put same wearing during the shorts M.T. was Feeling apartment. fled back incident. to do unsure of what very emotional and class A charged Hall next, com- The State apartment headed felony office, prop- felony molesting1 child and class C where she asked plex’s leasing filed, if After molesting.2 charges she child manager Sonja Cumberlander erty *4 months, fugitive ob- Hall for three phone. Cumberlander remained could use the state, sur- point fleeing at one the appeared “very that excit- before girl served 119.) (Tr. rendering to at authorities. and nervous. ed” office, Hall discovery began, imme- Once conducted arriving After at M.T. He to elabo- phoned deposition friend of her mother’s A.D. asked A.D. diately previous rate on a made reported rape molestation. statement she had and and M.T., hap- specifically told her Hall had about about “what A.D.’s friend that When 154), (Tr. 113.) M.T.,” pened (App. at before.” at This was something “[done] and, seemingly she to an that immediately work reference incident A.D. left years Hall. occurred was nine old apartment, to her called when M.T. drove living Kentucky anything to M.T. but with A.D.3 One having denied done “asleep the AD.’s friends M.T. if she had told A.D. that he had been had asked touched, responded her arm up and he and M.T. had ever M.T. bed woke 155.) (Tr. equivalent him him.” that she had. The touching around at Department A.D. com- of Child then at the Services apartment When arrived right past inter- plex, girl. During A.D. but drove interviewed the saw view, stop- complex M.T. had her and out of the without revealed by age. As ping. boy M.T. observed Hall drive been consensual with God, exclaimed, oh Nothing building, my “Oh more came she incident. (Tr. God, 120.) my is.” at there he response ques- In deposition to Hall’s tion, stated, “Well, really A.D. office A.D. don’t and observed that entered this, daughter, I appeared “hysterical” anything have to do with so won’t who (Tr. crying question at answer that that’s al- speak. and unable because 158.) testify ready that “I’ve charges She later been handled. No would 159.) upset.” nothing at filed because took That’s place. never seen her that 'raped all really you M.T. her that Hall had to know on that.” After told need 113.) her, asked, immediately (App. took to the at then A.D. “What happened?” repeated just Caro- A.D. “I hospital, where sexual assault nurse that really you your Fisher lacera- told that’s line observed three fresh none (2008). 35-42-4-3(a)(l) jury’s pres- § court at outside of 1. Indiana trial and Code ence. He had obtained information 35-42-4-3(b) (2008). § 2. Indiana Code conducting pre-trial at two interviews. But deposition, the time of the of Hall’s extent court, Acting prose- as an officer of the knowledge this incident is unknown. provided trial cutor this information happened something That’s September business. A.D. recount the events of was no 19th, with another child. There prosecutor asked her. about a has noth- charges anything, filed so that with Hall shortly call that occurred 113.) (App. with this.” ing to do rape after M.T.’s and molestation: and filed Hall then certified Q: Marq say to you? [W]hat in which compel discovery a motion A: He wanted know information the trial court to A.D. to about M.T. could clear his name. question, as he believed “the answer requested information relates to evidence Q: you do mean? How n previous- victim A: anything He wanted know about recanted, ly another accused and then records, past, anything medical itself is in a highly which case to get he could use out of his case. involving accusation of sexual improper 109-110.) (App. A conduct.” few (Tr. 163-64.) ' motion, months later he renewed his Then on cross examination of trial court denied. exchange following occurred between day Hall’s began, counsel: granted State’s motion limine *5 Q: you And when were about a asked to, among “[a]ny things, ques- other you conversation Mr. tions, testimony, evidence, or argument, you when wanted help he clear his regarding prior comments conduct sexual name, you recall talking do about that? witnesses, any including but not State’s you actually give Did him information? [M.T.],”pursuant Ev- limited Indiana 149-50.) Rule 412. (App. idence at Also I physically A: anything? Did him give Rule, the Rape known as Shield Rule No. subject to prohibits, exceptions listed like a No, Q: you you did hav- were —because accusation, prior false into the admission you a conversation. him give Did in a civil or proceeding evidence criminal any information? involving evi- sexual misconduct prove prior offered to dence victim’s (Tr. 196-97.) time, At prosecu- or predisposition. sexual behavior sexual objected, among tor contending other things that A.D.’s answer would violate the During presence and outside the motion in limine. The trial court then jury, an that proof made offer of no, instructed A.D. answer yes either inquire he intended into he charac- what counsel repeated question. and Hall’s terized as a accusation A.D. Kentucky responded: M.T.—the an ex- incident —as ception Rape Finding Shield Rule. request, A: no. I give His him didn’t report that M.T.’s of consensual any information. allegation,” a false “wasn’t the trial court (Tr. proffered excluded the evidence. 484-85.) Thus, testimony during the your Q: today Is it that here M.T. and incident that conversation where he wanted
was off limits as inadmissible done, clear his name was one and topiс would soon return. request him no you gave made trial, day On the second information and that was the end State called A.D. to the After hav- stand. conversation? Alright, so tell me about this stuff He ... Hall: , questions. He me
A: Kentucky? happened in ... me information basically give said boys some like A.D.: When she said 199) added). (emphasis her? touched more, voiced his prosecutor Once boy something She said some Hall: of the run afoul that A.D. would concern to her. then The trial court dis- limine. Yeah, came, it out that A.D.: found courtroom, missed thing. They like a mutual discussed the risk parties further experimentin’ on one another. would, answering question, vio- up get And she him locked Hall: tried discussing the order in limine when late ... for like Upon the trial conversation with Hall. her just A.D.: He was a little He was kid. request, recording court’s age. played.4 approximately four- call was age. He Hall: Oh. was her the fol- minute-long recording contained [unintelligible] It A.D.: wasn’t like excerpt: lowing relevant that. I or nothin’ like mean adult But my * * peo- Hall: I’m siftin’ here talkin’ still, f* it’s the same *n’ situation. to, stuff, tryin’ like I’m ples Yeah, but she lied and said Hall: everything you say- down that write come boy did somethin’ her and little strong. get my portfolio in’ to little out, true. to find that s* *t wasn’t even all, mean, I so all of the give me back Right. A.D.: for, against to make [M.T.] C.) Ex. (Appellant’s All s* little statements uncredible. tape played, urged After you *t was tellin’ me to play recording the trial court for the Kentucky, happened in and all other *6 impeach to him A.D. on me, *t. Talk to so I baby, little s* can had, contrary that fact that to her she this s* *t down. write assertions, given him to attack information ' sayin’ attorney] ... that A.D.: was [An credibility. that reasoning But is you basically rape know case ... good out of [record- “whatever comes that if no against word even there’s word ing] completely outweighed by is ... you do is gotta evidence. what like So ... ... goes tooth and nail because provin’ already talked against every in li- aspect the motion somebody [unintelligible] reliable. mine,” trial court ruled inadmissible focus on. That’s what we need to So portion recording which to gosh, I don’t even start. know where and A.D. discuss the incident.6 (Tr. 218.) C 6.The trial court also cited Indiana Evidence' 4. It marked as Defense Exhibit but was 404(b) ruling. not entered into evidence. Rules 412 and as basis for its 404(b) provides part that Rule crime, wrong, of a act is or other "[e]vidence Rule that "[t]he Evidence 403 states Indiana prove person's not to character may admissible exclude relevant evidence if its particular show outweighed in order to on a occasion substantially that probative value is person acted in with the char- danger following: accordance of one or of the more issues, ... This be prejudice, confusing acter. admissible for mis- unfair motive, proving op- leading delay, needlessly purpose, such as jury, undue or another intent, portunity, preparation, plan, knowl- presenting evidence.” cumulative courtroom, no, As the returned to the Mr. Hall? Remember the court’s or- der, yes trial court called to counsel the bench no. prosecutor “keeр warned A: Yes. you questions if ask on mind redirect (Tr. 592-93.) that, expand open in a does sense re-re-direct, On began Hall’s counsel things door to that have ask, Hall, in “Mr. reference to the opened point at this in time which would the State asked about that conversation played.” allow all that to be at 221- A.D., you give with where asked A.D. to 22.) ” prosecution Accordingly, the (Tr.' you 594.) back information.... inquire phone further about the call on re- prosecutor But the interrupted object- But on direct. re-cross examination of question, ed and the trial court following day, prosecutor objection, sustained the finding Hall’s him phone about the call: question to be scope outside the Q: You placed phone question. recorded State’s call right? is that Hall also testified to his version of the Yes, I A: did. of September events According 19th.
Hall, he asleep in bed when he awoke penis. his He stated Q: you told [Y]ou A.D. that at- he immediately girl admonished the tempting get, quote, your portfo- little phoned A.D. The call straight went together, quote, your lio end people, voicemail, said, he but he did not leave a be, they may know, whoever I don’t message because he was arguing with get your this, things ready for is that M.T., who was purportedly pleading with right? him to allow her to call her mother. Hall A: Yes. also testified he observed M.T. his use
phone place However, a call to A.D. subpoenaed neither Q: records then immediately thereafter nor introduced own into so view, you paraphrasing your correct — is there no supposed record calls to if I’m wrong, you me give asked A.D. to A.D. from phone. you anything you could attack year with, credibility the twelve old’s During his testimony, Hall also admitted that right? took a immediately shower after *7 alleged Additionally, incident. he ad- already A: She had me— told mitted that M.T. was in him bed with on, Q: Hold Hall. you Mr. I asked acknowledged wearing that she was specific question, or yes no. gym upon shorts which his DNA was I give A: me what she during the alleged found incident. He also gave me. stated that he to act triеd as a father Q: you asked her— I— figure to M.T. After testimony, me, you A: Tell me what told defense that’s rested.
what I— Hall guilty charged. found as Q: You give you asked her to At whatever a sentencing hearing, the trial court you needed to attack year the twelve merged Hall’s felony class C child molest- credibility, right, yes old’s isn’t that ing conviction felony with his class A child mistake, edge, identity, absence of of or lack accident.” 466 (Ind.2014) (quoting 1001 Clark him to N.E.3d conviction sentenced
molesting (Ind.2013)). State, 252, 260 994 v. N.E.2d thirty-five-year sentence. aggregate trial argued that appeal, On However, goes alleg denying in his court its discretion abused contends that evidentiary errors: he depo A.D. to answer the compel motion to him his rulings deprived court’s inci Kentucky about the sition fully Spe confront his accuser. ability to excluding from evidence in dent and that the trial court cifically, Hall asserts phone conversation substance of the his Sixth Amendment violated of his Amendment in Sixth violation him when forbade cross-examination him, as witnesses right to confront inquiring further into excluding proffered his testimo well as by compel motion denying incident his for un ny reputation of M.T.’s discovery by excluding from community. By split in her truthfulness with A.D. phone conversation decision, concluded Appeals “[W]here, here, a violation constitutional its discretion trial court abused appellate alleged, proper is standard call from evidence. excluding State, v. Speers 999 review is de novo.” (Ind State, 1107, 1121 15 Hall v. N.E.3d (Ind.2013). 850, 852 N.E.2d . (Vaidik, C.J., dissenting Ct.App.2014) Discovery Compel I. Motion to transfer, sought part). The State thereby vacating the Court granted, we First, trial Hall maintains Rule Appellate See Appeals opinion.7 Ind. his motion to com denying court erred 58(A). deposition pel A.D. to answer the certified happened question regarding what be Review
Standard
when
M.T. and another child
tween
Generally,
ruling
a trial court’s
family
living Kentucky. According
“a
on
evidence is accorded
the admission
ruling prevented
the trial court’s
Tynes
great
appeal.
deal of deference”
obtaining
him from
informatiоn about a
(Ind.1995).
v.
650 N.E.2d
687
sexual
“prior false accusation of
miscon
is
able to
“Because the
court
best
by
deprived him of
thus
duct”
weigh
assess witness
the evidence and
ability
fully
confront
accuser
its
credibility,
rulings
review
on admis
(Appel
the Confrontation Clause.8
under
only
sibility for abuse
discretion” and
28.)
lant’s Br. at
ruling is
‘clearly against
“if a
reverse
above,
circum
As
Indiana Evidence
logic and effect
facts and
mentioned
subject
412
party’s
prohibits,
excep-
error
Rule
listed
and the
affects
stances
”
tions,9
in a civil
v.
the admission into evidence
rights.’ Carpenter
substantial
do, however,
(quoting
summarily affirm the
N.E.2d at 852
Wash
7. We
Crawford
36, 42,
ington,
124 S.Ct.
Appeals’
that the trial
541 U.S.
Court of
determination
(2004)).
proffered
‘primary
"A
properly
evi-
L.Ed.2d 177
interest’
excluded Hall’s
alleged reputation
un-
Clause
secured
Confrontation
dence of M.T.’s
*8
Koenig
Ap-
right
community.
Ind.
of cross-examination.”
v.
truthfulness in
See
1271,
(Ind.2010)
58(A)(2).
(quoting
pellate
933 N.E.2d
1273
Rule
315,
Alaska,
308,
v.
U.S.
94
Davis
415
S.Ct.
Con-
procedural guarantee,"
8. A
"bedrock
1105,
(1974)).
467
relevant,
proceeding involving alleged ing discovery
or criminal
on a
non-privileged
directly
misconduct evidence offered to
that bore
sexual
matter
M.T.’s credi-
26(B)(1).
bility
a
prove
prior
victim’s
sexual behavior or
under Indiana Trial Rule
However,
Judge
agreed
predisposition.
Chief
Vaidik
with her col-
sexual
in State
leagues
majority
in
v.
we stated that’
that the trial
“[t]o
Walton
extent
granted
have
prior
should
Hall’s motion to com-
defendant offers evidence
false
pel
found the error
rape10
impeach
accusations of
the credi
harmless.
be
witness,
bility of the
hold
we
that its ad
Like all
judges
three
on the
does not
Rape
mission
run
afoul
Appeals,
Court of
find
AD.’s re
824,
(Ind.
Shield Rule.” 715 N.E.2d
827
sponse
question
to Hall’s
about the Ken
1999). This is because
412
Rule
is de
tucky
poten
incident could have revealed
signed
preclude
evidence of a victim’s
tially relevant information under Indiana
conduct,
prior
sexual
verbal conduct
26(B)(1)
Trial Rule
provid
could have
a prior
allegation
rape.
like
false
Id. at
ed Hall with knowledge of what he classi
Moreover,
presenting
826.
verbal con
as
alleged prior
fies M.T.’s
false accusation
duct, the
seeks to prove
.defendant
for of sexual misconduct11 in order to poten
impeachment purposes
complain
tially
admissibility
establish its
at trial.
previously
witness had
made
false Accordingly, the trial court
should
,of
accusation
rape
impermissibly
—not
granted
motion to compel discovery
probe the victim’s
history.
sexual
Id.
fully
secure his Sixth Amend
majority
A
of Appeals
the Court
right to
ment
confront
witnesses
agreed with Hall and
determined
him. But this
inquiry,
does
end our
AD.’s statements in the phone call with
errors,
“certain constitutional
no less thаn
Hall,
that M.T. had made a
“indicatefd]
errors, may
other
have been
‘harmless’
prior
allegation
false
of sexual misconduct
of their
terms
effect on
fact-finding
may, depending
on the evidence ob process
Koenig
trial.”
through
discovery,
tained
further-
be ad
(Ind.2010).
N.E.2d
“[B]efore
missible under
”
Walton.
15 N.E.3d federal
constitutional error
be held
Thus,
view,
1121.
the majority’s
harmless, the court must be
able
declare
that,
failing
require
depo
A.D. to
answer
a belief
was harmless
question
sition
about
happened”
“what had
reasonable doubt.” Chapman v. Califor
nia,
M.T. and
boy
Kentucky,
18, 24,
between
386 U.S.
87 S.Ct.
prevented
(1967).12
the trial court
Hall from
words,
obtain- L.Ed.2d 705
In other
evidence;
physical
was the
source
prior
incident constituted a
false
specific
instances of a victim's sexual be-
allegation of sexual misconduct under Walton.
accused,
prove
havior with the
if offered to
consent;
and evidence- “whose exclusion
12. "The
recognizes
harmless-error doctrine
would violate the defendant's constitutional
рrinciple
purpose
that the central
of a
rights:"
criminal trial is to decide the factual
guilt
pro
defendant’s
or innocence and
10.
prior
Evidence of a
false accusation of
public respect
motes
process
criminal
(1)
rape is admissible if
the victim
either:
by focusing
underlying
on the
fairness of the
making prior
allegation
admitted to
virtually
trial rather than on the
inevitable
misconduct;.
(2)
sexual
victim’s
presence of immaterial error.” Delaware v.
“demonstrably
accusation was
false.’’ Wal-
Arsdall,
673, 681,
ton,
Van
475 U.S.
106 S.Ct.
Applying these factors circum- hаnd, apparent stances at dent not have cumulative to would trial court’s Hall’s motion to com- other about mutual denial of encounter Arsdall, Supreme any promises 13. In Van the United States not been offered induce- exchange testimony. Court determined that erred in ments in Id. at failing allow the 676-77, defendant cross-exam- laying 1431. out 106 S.Ct. After agree- ine a for the witness State test, the Court remanded five-factor case speak prosecution ment to about the Supreme Court to determine Delaware exchange for the murder hand dismissal confrontation error was whether the charge. pending criminal Id. of an unrelated Id. at a reasonable doubt. 676, 679, 106 S.Ct. Outside S.Ct. 1431. presence, jury’s the witness testified *10 (cid:127) However, years prior. par- three this can Hall continued to reside at AD.’s tially apparently apartment despite be attributed to who up; their break other seek discover introduce (cid:127) Hall was home alone with M.T. on the Kentucky evidence of the incident obtained incidеnt; afternoon of the Third, from a source other A.D. even than (cid:127) M.T. testified that Hall molested and assuming Kentucky incident was her; raped material, similarly there was no evidence (cid:127) M.T. has not wavered her account of by Hall to introduced contradict her rape; molestation and likely testimony (again assuming the en- (cid:127) Hall admitted to immediately taking a counter’s nor admissibility), was there cor- incident; after shower roborating potential her testi- (cid:127) mony. Consequently, these two factors do Both Hall and put- M.T. recalled M.T. ting gym favor either the State or Hall. on the same shorts after the alleged incident that wearing she was Fourth, Hall extensively was able to before; A.D., although cross-examine not to the (cid:127) present Hall’s semen was on the regarding Kentucky extent he wished crotch gym area of the shorts M.T. Hall fully question incident. was able to wearing at the time the inci- day A.D. about in ques- her account dent; impression tion and of M.T. her after the (cid:127) apartment M.T. fled the after the mo- importantly, fact. And Hall was able rape; lestation and extensively cross-examine his accuser M.T., (cid:127) except Kentucky incident, about the apartment M.T. arrived at the com- very factually an encounter we plex’s leasing consider office in search distinct from the phone; circumstances of this It approxi- case. uncontroverted (cid:127) Leasing employee Sonja office Cum- mately years three in a earlier different berlander ap- observed that M.T. disclosed, M.T. state her when ásked peared “very excited” and nervous mother’s friend if ever been she had when she asked use the touched, that boy age had touched 119); leasing office investigation by her. An (cid:127) immediately reported M.T. the moles- equivalent of DCS that M.T. determined adult; tation rape to a trusted truth, telling had been and that the (cid:127) reported After M.T. the molestation touching experimentative was mutual and rape contacted, and A.D. had been year between the nine olds. Given the phoned A.D. Hall. knowing Not stark factual dissimilarities between this call, purpose of gave an un- circumstances, present encounter and the prompted statement when she and the extent of the cross-examination happened what had A.D. permitted, and M.T. otherwise M.T., that he awoke in bed find largely factor favors the State. his penis; Fifth is pros- the overall strength (cid:127) By admission, his own Hall stated that ecution’s case Hall. turn now to We bed; M.T. was in his the uncontroverted facts at hand: (cid:127) right past Hall drove A.D. without
(cid:127) (M.T.’s mother) decided, stopping when A.D. returned home
just incident, days before the find out what happened end between M.T.; their relationship; Hall and *11 of our review that (cid:127) God, for the my oh and sake my cried out “Oh M.T. ambiguous as to her statement M.T.’s God, Hall drove there he is” when most all Hall touching, 120); consent building impeachment evi- have received was would (cid:127) “hysterical,” her daughter A.D. found have would considered dence she speak when crying, and unable to overwhelming alongside the evi- nearly apartmеnt complex’s at the met her including guilt of his listed dence above— 158); (Tr. at office significant temporal, be- physical, and (cid:127) that had never seen A.D. testified she havioral evidence that corroborates M.T.’s she was daughter upset as her unwavering and account her molestation incident; after the office rape. (cid:127) Hall had that M.T. told her mother more, that it once reiterate But we her; raped just years to uncontroverted that three (cid:127) that M.T.’s Nurse Fisher testified if rape, A.D.’s friend asked M.T. she same-day vaginal revealed examination touched, responded ever been had fresh lacerations consistent three time, truthfully earlier that she had at an rape; description investigation that and revealed (cid:127) phone calls There is no record of the touching another had been mutual with Hall claims M.T. and he made year Though the trial court nine old. to in bed supposedly after he awoke motion to com- granted should have Hall’s penis; find her provide Hall with pel order (cid:127) to learn information attempted information, potentially this admissible we credibility; A.D. to from smear confidently on all say can review of and against State’s case (cid:127) hiding from spent three months not very strong, would have is overall and charges after were filed. authorities Kentucky weakened incident been Accordingly, admitted into evidence. together, light in a most viewed Taken final factor favors the greatly this State. verdict, evidence favorable strong, remarkably Hall is would Considering out of three the five chal- certainly sufficiency almost survive a substantially favor Arsdall factors Van that, though lenge, and demonstrates even Hall, none favor consider- compel failing erred in ing response that A.D.’s to his potential question deposition A.D. to answer Hall’s helped would neither nor incident, Kentucky jury had about the Hall, hurt we trial court’s find the failure upon it before substantial evidence beyond compel harmless response reasonably guilt. infer could words, reasonable doubt. In other be- acknowledge showing
In cause the State met its burden fairness opportunity beyond po- not have that A.D.’s did reasonable doubt they response not contribute to the for themselves whether be- tential assess verdict, lieved, do, inci- of Hall’s as we violation require quite factually from cross-examination rever- dent distinct does circumstances, (hold- present Koenig, M.T. did and that sal. See 933 N.E.2d allegation laboratory mis- trial court’s make a false of sexual admission confront its report opportunity she that she had without conduct when disclosed beyond ad- Assuming the incident’s creator harmless reasonable been touched. given self-implicating missibility Rule doubt under Indiana Evidence defendant’s police); statements to McCorker v. ing of A.D. on direct examination and Hall (Ind.2003) (holding 797 N.E.2d cross examination about the contents of any their conversation resulting opened error defendant not the door to the admission into of that being allowed to wit con- cross-examine State’s versation, the motion in despite limine ness bias a reason Rule demonstrate the ba- light able doubt of cross-examination inquiry sis for Hall’s correct AD.’s defendant cu conducted and substantial *12 false assertions that provide she did not evidence); mulative and Standifer Hall any information attack her (Ind.1999) (holding 718 N.E.2d daughter’s credibility. begin, To the State fully defendant’s denial opportunity questioned A.D. about phone conversa- cross-examine State’s witnesses for bias tion that it knew contained information beyond given reasonable doubt prior about M.T.’s sexual conduct “ample evidence” to support introduced potential act of dishonesty. Knowing that convictions). the motion in limine barred A.D. from II. Phone Call discussing incident, the Kentucky the Similarly, Hall contends that State asked the reason for Hall’s trial court violated his Sixth Amendment phone call. A.D. responded When truth- by excluding confrontation his fully that “[h]e wanted to know informa- phone call from with A.D. evidence. tion name,” about M.T. that could clear his Though the motion precluded in limine him (Tr. 164), at appeared it to the from questioning A.D. about M.T.’s Hall, basis, with no attempted gath- had specific sexual conduct or her of dish acts er information to alleged smear his vic- onesty,14 argues Hall the State credibility. tim’s “opened the door” to the admission of such reasonable, question however, Hall’s during evidence its direct examination of as he wanted to know more about “this A.D. and its cross examination of Hall stuff that happened Kentucky.” (Appel- when prosecutor questions asked about C.) Hall, lant’s Ex. To inci- phone inquired call and into infor dent could have been prior accusation of mation Hall A.D. wanted from M.T., sexual misconduct and thus a out, As Hall points Indiana courts have piece valuable of information as pre- he long recognized that otherwise inadmissi- pared his defense. But as the heard ble evidence become if a admissible it, Hall, having just been accused of child party “opens questioning the door” to on molestаtion, baselessly fishing “decep- order to correct a ways to destroy twelve-year-old tively incomplete disclosure.” Gilliam v. victim’s credibility. 71, 76-77, 270 Ind. 383 N.E.2d Moreover, jury’s impression (1978). instances, In these the evi- the conversation compounded when upon dence “open relied the door” repeatedly A.D. during cross lied examina- “must leave trier fact with a false or tion and stated “I give any didn’t him
misleading impression of the facts relat- (Tr. 199.) information.” at At point, ed.” Id. urged Hall trial play court to the re-
Like Hall majority and a of the Court of cording phone conversation for the Appeals, question- we find that the State’s jury. though the trial court excluded Specifically, concerning any specific motion limine forbade ments acts dishon- evidence, "[a]ny questions, testimony, 149.) esty by any or com- (App. State's witness.” credibility, while it sword to attack warn call from phone questions simultaneously further used motion limine asking State open phone the door to immunize from cross- call would as a A.D. shield admissibility. conversation’s examination, to bolster A.D.’s false testi- mony keep answering ... and the State heed But failed attack.” questions to rebut the State’s warning. following day, the court’s at 1114. 15 N.E.3d phone asked Hall about
prosecutor “you call; phrased Nonetheless, this error we review give you anything harmlessness reasonable year attack twelve old’s you could Ars- Applying the first of the Van doubt. with, (Tr. right?” credibility dall factors to the court’s exclusion 593.) explain that attempted 593), phone conversation between me,” already told “[s]he find that call was not interrupted, repeated prosecutor *13 in to getting highly the case. Con question,' important succeeded State’s the 593.) “[y]es” at trary from Hall. assertion that he had a reluctant to Hall’s more, im- misleading this created a to chal Once the Sixth Amendment under pression of the facts that under Gilliam credibility lenge by presenting evi M.T.’s phone the door to the conversa- opened prior had dence that she made false 76-77, admissibility. tion’s 270 Ind. Kentucky, aсcusation of sexual in abuse then to at 301. Hall’s counsel tried N.E.2d phone most call would have informed the call, phone client about the but his ask “experi- mutually the that M.T. was ” pros- no avail: court sustained the boy her age. (Appellant’s mentin’ with a objection. ecutor’s immediate C.) Setting logical ques Ex. the aside next tion of this information was even whether excluding By phone the contents the Evidence Rule admissible under Indiana the door to its opened after the State call touching consensual between two admissibility, the trial Hall court denied children, nine-year-old truthfully the disclosed opportunity the demonstrate fact, is far different given A.D. had him relevant informa- some time after that credibility during allegation their from a tion about M.T.’s false of molestation and Designed immediately it. to rape conversation—and before after the made A.D. that Hall had incident, elicit Hall though have us be would baselessly inquired M.T.’s credibili- above, differently. lieve forth as set ty, questioning line of succeed- State’s un upon the State’s case M.T.’s centered doing just in that also ed served testimony that wavering Hall molested and jury, way who had no of know- mislead raped physical, temporal, her and the seeking Hall more ing that was fact corroborated her behavioral that potential information about a Therefore, it cannot accusations. be said of sexual misconduct.15 accusation phone call the contents highly important for the State to Thus, in excluding court erred reasonable doubt conversation, .establish phone which would have raped twelve-year-old M.T. Conse “deceptively incomplete corrected quently, considerably this factor favors the Appeals Id. As disclosure.” stated, phone “the State call as a State. used worse, discovery prohibit- during of the trial
15. To make matters as result court's discovery. asking compel this denial of his motion to ed from A.D. about information Next, “everything call phone to whether the comes we look dоwn credibili- (Oral 15:25), Al- cumulative evidence. ty,” Argument would have been a scenario been, not factor though it have would may where errors made here have only favors as the refer- marginally significantly problematic, more simply ence incident was presence of Hall’s semen the crotch ques- to the ultimate factual wearing area shorts M.T. was dur- jury. Similarly, tion third before the ing the incident and fresh lacerations on favors nor Van factor neither Hall Arsdall genitals M.T.’s substantiate testimo- although no other evidence ny, as does the other extensive evidence that would placed introduced have Additionally, above. discussed Hall admit- phone jury, contents of call before the bed, that M.T. ted he go call did not to a “material” after his with showered encounter M.T. only point at whether had en- M.T. issue— unprompted He also offered an statement gaged touching boy consensual before hap- she knew what had years ago three age own in another pened daughter, bеtween and her state. awoke bed find M.T. However, fourth factor favors clearly penis. significant Another fact is that Hall Hall was permitted otherwise hid from authorities three months after to extensively cross-examine both A.D. and charges against the State filed him. And happened before, during, M.T. about what all when had no motive fabricate a rape. and after He story: Hall and her mother already *14 to gotten phone his have conver- wish the up, so imminently broken Hall was going evidence, sation into admitted and life, just to out of be as soon as he opportunity fully the have denied out of her apartment. moved Hall calls A.D. about cross-examine the contents our attention what he describes as con- conversation, their but Hall was otherwise evidence, flicting merely is decidedly and to question allowed able invitation us to the reweigh evidence in A.D., M.T., parties other and favor, which do. we will not accuracy the and truthfulness Taking evidence, together, all the their accounts. viewing light that evidence in most a favor- finally, Fifth look overall the verdict, able to the it is clear State strength of State’s Hall. against the case strong had convincing case above, As set forth there is substantial Thus, Hall. the fifth significantly factor independent probative evidence value favors the State. upon jury which could the have based its more, Once three out the five Van collectively decision that Hall’s establishes Arsdall factors handily State, favor the guilt beyond a Chief reasonable doubt. more, and once among pieces of information Hall these the is sought place jury unwavering that Hall molested before the would not defense.16 such, raped helped and then her while her mother was have As contrary at work. Hall’s assertion trial court’s exclusion phone of the call reality, playing phone happened Kentucky” simply In conversation not rele- arguably likely help question more harm than vant to ultimate factual before above, Though, Hall's cаse. as discussed them and would have heard Hall ask his jury twelve-year-old would understood that had a have Hall victim’s mother for informa- jury inquiring past, destroy daugh- reason for into M.T.'s which tion with he could C.) credibility. (Appellant’s would have also learned "this stuff ter’s Ex. 474 constitu- is whether that clear if to violate denial—a even considered Chapman harmless. In to cross- tional error —was Amendment
Hall’s Sixth
Supreme Court
examination,
harmless
v.
declared
was nevertheless
California
can
error
“before
federal constitutional
doubt. Put
beyond reasonable
different-
harmless,
[reviewing]
not
be held
although
play
ly,
able
it was
able
a belief that
ques- must be
to declare
for the
phone conversation
call,
beyond
386
present-
harmless
a reasonable doubt.”
A.D. about the
State
tion
824,
L.Ed.2d
guilt
of Hall’s
and dem- U.S.
87 S.Ct.
ample evidence
ed
(1967).
I can make no such decla-
a reasonable
Because
beyond
doubt
onstrated
ration, I respectfully dissent.
contribute
the confrontation error
not
Koenig,
against him. See
to the verdict
that “the
majority
quite
is
correct
court’s
errors were
whether “the State
show
doubt, and Hall’s otherwise
a reasonable
reasonable doubt that
error did
Koenig
valid conviction
be set aside.
verdict.”
should
contribute
(Ind.2010)
933 N.E.2d
Conclusion
added).
(emphasis
put,
More
simply
*15
Because
trial court’s
errors
the
review of the record this Court
“de
must
denying
compel
in
motion
discov-
Hall’s
not-fully-impeached
whether
evi
cide
the
excluding
in
from
the
ery and
evidence
might
reliability
affected the
of
dence
Hall and
phone conversation between
factfinding
Delaware
process
the
trial.”
if
violations of Hall’s Sixth
even considered
673,
Arsdall,
684, 106
v. Van
475 U.S.
S.Ct.
confrontation,
right
Amendment
1431,
(1986).
oppor
89
“The
L.Ed.2d 674
doubt,
a reasonable
cross-examination,
tunity
by
for
protected
felony
A
affirm Hall’s conviction
class
Clause,
is
the Confrontation
critical
molesting.
child
of
ensuring
integrity
factfinding
the
the
Stincer,
Kentucky v.
U.S.
process.”
482
MASSA, JJ.,
concur.
DICKSON
736,
2658,
730,
475
ly important
has
right
prosecution’s
whether
confrontation
case-in-
witness,
particular
must
on
chief;
be
testimony
violated
excluded
of
trial.”
not on
outcome
the entire
highly
of
sought
probative
Arsdall,
680, 106
475
S.Ct.
Van
U.S.
credibility
from
witness’
and was far
cumu
(internal
omitted).
Chap
citation
A
1431
other testimony
lative of
in the record.
applies
analysis
man harmless-error
once Next,
trial court’s motion in limine
reviewing
infringe
has found
Hall from
prevented
demonstrating “the
upon the defendant’s constitutional
ment
...
contradicting
of
presence
evidence ...
684,
Id.
rights.
106
1431
S.Ct.
testimony of the
witness on material
(“hold[ing]
im
constitutionally
points[.]”
Namely,
Id.
M.T. had
whéther
of
proper
opportunity
denial
a defendant’s
prior
allegation
made a
false
of sexual
bias,
impeach
witness for
like other
abuse.1
upon
defense
premised
errors,
subject
Clause
Confrontation
is
сomplete
allegations,
denial M.T.’s
Chapman
analysis”).
harmless-error
And
making quite relevant any inquiry concern
infringement
case
before us the
allegation
of sexual as
that “the defendant
was denied
although
sault.
counsel was
defense
‘to
to the
expose
the facts
permitted
on
cross-examine the witness
jurors ...
appropriately
could
draw infer
matters,
other
this limitation prevented
relating
reliability
of the wit
ences
”
presenting
Hall from
evidence
Ritchie,
Pennsylvania v.
480
ness.’
U.S.
allegations
defense
were un
(1987)
39, 54,
989,
107
94
S.Ct.
L.Ed.2d 40
Ritchie,
63,
true. See
Tr. at 375 227, U.S. Kentucky, Olden v. 488 DNA ments. way to tell whether “[no] there was (1988) 231, 480, 102 513 109 L.Ed.2d S.Ct. deposited there that was found was curiam). right By denying Hall the to (per transfer”);. Tr. through direct or indirect testimony prior impeach AD.’s with (sexual 288-90, nurse assault at 297-98 statements, trial court al- inconsistent she identified testifying examiner left an incom- to be with jury lowed the vagina- in M.T.’s but three lacerations picture from which it was to plete at conclusively neither determine could of credibility, the witnesses. assess the the manner point what time nor deprived Hall of im- certainly This denial infliсted). injuries which the com- regarding the peachment evidence Further, view contrary majority’s to the greater But an even plaining witness. appears to that the case was me State’s prevented harm- is violation also Najam very Judge As strong. at all testifying Hall from A.D.—the impeaching Ap- of pointed out for the writing Court correctly majority -the ob- witness. As peals’ majority, depended “Hall’s defense serves, testimony M.T.’s de- A.D.’s about entirely crediting on the his version timeline of events was meanor State, 15 over Hall v. events M.T.’s[.]” introduced at trial corroborate 1107, va- (Ind.Ct.App.2014), N.E.3d 1115 and sub- version events afternoon expressed And as trial court cated. allegations stantiate of molestation. mo- considering parties’ pre-trial when op. By allowing at AD.’s See 469-70. tions, credibility complaining of [sic] “[t]he testimony him give any that she “didn’t 14; Tr. paramount.” at accord witness Tr. go unchallenged, information” to at 528, McCarthy v. 535 N.E.2d 749 199,- asserting, witness was effect “[t]he (Ind.2001) (“As involving most cases protection ruling, trial court’s under molestation, of child here the claims credi- right give questionably truthful an- bility key at tri- witnesses was issue swer to a rele- pursuing cross-examiner al.”). observes, majority correctly As the Davis, inquiry!.]” vant line of 415 U.S. at line questioning “served State’s 314, permit- 94 Had Hall S.Ct. 1105. jury, way no of know- mislead the who had impeach with her incon- ted seeking that Hall in fact more statements, been, have sistent should potential prior information he would have revealed Op. accusation sexual misconduct.” “deceptively incomplete Op. disclosure.” (footnote omitted). Supreme 472 As the (quoting Gilliam v. 270 Ind. 471 noted, jurors has were entitled “the (1978)). only 383 301 Not N.E.2d theory the benefit of the defense have would this enabled Hall to defuse the. they so make before them could harm of that line of weight judgment as informed questioning also would undermine A.D.’s Davis, testimony....” place on [the] credibility and call entire (finding revers- U.S. S.Ct. into doubt. In sum the exclusion fur- deny ruling error of trial court’s ible inquiry into the call ther denied wit- right defendant cross-examine to cross-exam- his constitutional regarding prior juvenile conviction ness *17 AD., preventing him from intro- ine thus bias). an effort show ducing testimony simulta- while protected by the neously permitting present Cross-examination as the State to ’ right presentation of that same Sixth includes the distorted evi- Amendment jury. cast doubt on the witness’ dence committed In order declare the error PANNELL, Appellant- David a reason- beyond
in Hall’s case harmless Defendant, doubt, unequivocal- the Court must be able ly convinced this error did not contribute incon- guilty to a verdict. It seems to me on the
gruous majority say one Indiana, Appellee-Plaintiff. STATE of “the suc- questioning hand State’s line No. 49A04-1308-PC-415. in” “elicit[ing] testimony from A.D. ceeded baselessly inquired that Hall had of Appeals of Indiana. credibility,” to mis- and “also served jury, way knowing lead the who no May 2015. seeking that Hall was in fact more infor- July Ordered Published 2015. accusa- potential prior mation about Op. tion of sexual at 472 misconduct.” omitted).
(footnote But then declare “it is apparent
the other hand compel denial of Hall’s
court’s motion
discovery exclusion of con- [and
versation], even if in violation of the Sixth
Amendment, beyond was harmless rea-
sonable doubt.” Id. at To the con-
trary, makes clear record
erroneously right denied his constitutional
to cross-examination. State has And the in its burden to
failed demonstrate did not
“error contribute to the verdict.”
Koenig.
Accordingly
I cannot conclude the error
reasonable
Reed v.
doubt. See
(Ind.2001)
(concluding that violation of defendant’s
Sixth Amendment revers- constituted
ible error trial court defen- where denied motion to testi- compel deposition
dant’s
mony videotape and refused to admit subject
the same wit- impeach matter trial). during
ness I therefore re- would
verse conviction remand for a
cause new trial.
RUSH, C.J., concurs.