Matthew Hayko, Appellant -v- State of Indiana, Appellee
Case No. 23S-CR-13
Indiana Supreme Court
June 22, 2023
Argued: March 2, 2023 | Appeal from the Spencer Circuit Court No. 74C01-1902-F3-58 | The Honorable Jon A. Dartt | On Petition to Transfer from the Indiana Court of Appeals No. 21A-CR-2407
Argued: March 2, 2023 | Decided: June 22, 2023
Appeal from the Spencer Circuit Court
No. 74C01-1902-F3-58
The Honorable Jon A. Dartt
On Petition to Transfer from the Indiana Court of Appeals
No. 21A-CR-2407
Opinion by Chief Justice Rush
Justices Massa, Slaughter, Goff, and Molter concur.
Who and what to believe are matters of personal choice. These choices are deeply consequential in a jury trial, but they belong exclusively to each juror. Yet, our rules of evidence provide parties with several ways to influence a juror‘s credibility assessment.
This case implicates an issue of first impression under
We first clarify that the evidentiary foundation required to admit opinion testimony is less demanding than that required to admit reputation testimony. To lay a proper foundation for opinion testimony under
Facts and Procedural History
Matthew Hayko and L.D. are parents to three daughters from their previous relationship, including V1, who was born in November 2006. After the couple separated, Hayko exercised visitation with V1 and her two sisters every other weekend during the school year. During a visit in February 2018, Hayko and his wife hosted another couple for dinner at their home, and they played a couple games together. While playing cards, Hayko—who had consumed around four to ten beers—rubbed V1‘s
In bed, Hayko put his hand under V1‘s bra and rubbed her breast “[s]kin to skin.” He then put his hand under V1‘s underwear, inserted his finger into her vagina two or three times, and kissed her face and neck. Hayko eventually stopped touching V1 and left the room, but he returned within a few minutes and fell asleep in her bed. When they woke up the next morning, Hayko had his arm on V1‘s shoulder, realized he had fallen asleep, and noted it was “awkward.” He apologized to V1 and asked her not to tell anyone about what happened, assuring her that it wouldn‘t happen again.
About a year later, Hayko took his daughters out to eat where V1 became “uncomfortable” while observing Hayko with his arm around her younger sister “the whole dinner.” After returning to L.D.‘s home that evening, V1 “started crying” and informed her mother that Hayko had previously touched her inappropriately. L.D. subsequently brought V1 to their local child advocacy center where she underwent a forensic interview.
The following day, Hayko agreed to speak with law enforcement about V1‘s allegations. During that interview, Hayko told a detective he “had been drinking all day” and “was wasted” on the night of the incident. He remembered “waking up the next morning” in V1‘s bed with his “arm around her, cuddling her, kind of like I would if it was my wife,” which was “awkward.” He also recalled asking V1 to “keep this between us.” Though Hayko did not remember fondling or touching V1, he declined to tell the detective that V1 “is a liar.” And he acknowledged “if this did happen, you know, and I don‘t recall because I was drinking, wasted, or whatever” that “this would be an isolated incident.”
The State subsequently charged Hayko with one count of Level 1 felony child molestation, one count of Level 3 felony child molestation, one count of Level 4 felony child molestation, and one count of Level 4 felony incest. Before trial, Hayko notified the State he intended to call three relatives as witnesses to testify about their opinion of V1‘s character for untruthfulness. The State objected, contending the witnesses lacked
During that offer of proof at trial, Hayko elicited the opinions of his father (V1‘s paternal grandfather), his stepmother (V1‘s paternal step-grandmother), and his sister (V1‘s paternal aunt). Each testified they had known V1 since she was born, had spent time around her at various family gatherings throughout the years, had personally interacted with her and observed her interactions with others, and had last seen her shortly before she made the allegations. Based on their respective experiences, each witness opined that V1 had a dishonest character.
The trial court excluded their testimony, concluding that Hayko had not established a proper foundation. In reaching its conclusion, the court reasoned that the three witnesses were “too insular” of a group and their contacts with V1 were “not sufficient to justify an opinion about the child‘s reputation for truthfulness.” Hayko objected, asserting the witnesses were “not there to talk about [V1‘s] reputation in the community,” and that he established an adequate foundation for the witnesses to offer their opinions of V1‘s character based on their “personal observations” and “interactions” with the child. The trial court overruled the objection, reiterating it did not find “sufficient contacts” for the witnesses “to be able to form and express those opinions.”
Also, during trial, V1 testified about the allegations; Hayko testified and denied touching V1 inappropriately; Hayko introduced messages he exchanged with L.D. in which the parents discussed V1‘s behavioral problems and her proclivity to lie and manipulate; and the State introduced Hayko‘s interview with law enforcement. The jury ultimately found Hayko guilty of Level 4 felony child molestation and not guilty of the remaining three counts. The trial court subsequently imposed a sentence of eight years, with two of those years suspended to probation.
The State petitioned for transfer, which we granted, vacating the Court of Appeals’ opinion.
Standard of Review
Hayko argues the trial court abused its discretion by admitting vouching testimony, by permitting the State to condition the jury on V1‘s credibility during voir dire, and by excluding his proffered opinion
We review a trial court‘s decision to exclude evidence for an abuse of discretion, which occurs when the court misinterprets the law. See Smith v. Franklin Twp. Cmty. Sch. Corp., 151 N.E.3d 271, 273 (Ind. 2020); Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017). Though Hayko contends the court‘s exclusion here denied him his constitutional right to present a defense, the fact that the trial court may have erred in excluding evidence does not transform that error into one of constitutional dimension. See Hastings v. State, 58 N.E.3d 919, 923 (Ind. Ct. App. 2016). And Hayko‘s alleged error is not one of constitutional dimension because he was able to exercise his right to present his defense—attacking V1‘s credibility—by presenting the jury with other, significant impeachment evidence. Thus, even if the court abused its discretion in excluding Hayko‘s opinion testimony, we review whether this non-constitutional error was harmless such that its “probable impact in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”
Discussion and Decision
We have clarified the foundational requirements for admitting reputation testimony, Bowles v. State, 737 N.E.2d 1150, 1153 (Ind. 2000), but we have not done the same for admitting opinion testimony until now. To lay a proper foundation for the admission of opinion testimony under
I. The trial court erred in excluding the opinion testimony.
Like experts, lay witnesses are permitted to offer their opinions on a variety of relevant matters. Barcroft v. State, 111 N.E.3d 997, 1003 (Ind. 2018). Still, “whether a witness is qualified to give an opinion” is a matter left to the trial court‘s discretion. Kent v. State, 675 N.E.2d 332, 338 (Ind. 1996). So too is whether the witness‘s testimony is supported by a proper foundation. Hill v. State, 470 N.E.2d 1332, 1336 (Ind. 1984). We first clarify the foundational requirements for admitting opinion testimony under
When a witness testifies at trial, their credibility is subject to impeachment—that is, it may be attacked. See
In answering this question, we find two evidentiary rules instructive. The first is
Yet, the State argues more should be required, contending a proponent must also show the “opinion is based on sufficient and recent contact” with the witness whose credibility is being attacked. Hayko disagrees, noting the vast majority of jurisdictions do not impose these requirements and emphasizes that cross-examination allows parties to expose such deficiencies with the witness‘s opinion. We share Hayko‘s perspective.
Most jurisdictions—federal and state alike—do not require a proponent to establish sufficient and recent contacts in laying a foundation for opinion testimony about a witness‘s character. Indeed, such a showing is not required under
But, as the State observes, not all states embrace a minimal foundational standard for the admission of opinion testimony. For instance, Oregon and Maryland require a proponent to also establish frequent and recent contact between the character witness and the principal witness. Devincentz v. State, 460 Md. 518, 191 A.3d 373, 390–91 (2018); State v. Paniagua, 286 Or. App. 284, 341 P.3d 906, 910 (2014).
We decline to embrace this minority approach for several reasons, the first being that it fails to distinguish between the nature of reputation and opinion evidence, as each serves a distinct purpose. For reputation evidence, a showing of sufficient acquaintance makes sense “to ensure
Additionally, while parties may take issue with the credibility of a witness‘s opinion when it is rooted in remote experiences, these concerns can be adequately addressed during cross-examination. That is, parties may expose any remote-contact concerns in an opinion witness‘s testimony and thereby provide the factfinder with additional evidence from which to make the ultimate credibility determination. Further, there is no objective reason why a witness‘s opinion premised on less-recent interactions is inherently unreliable. Likewise, there is no objective way to determine when a witness‘s interactions are too remote or infrequent.
Finally, establishing a proper foundation for opinion testimony does not require its admission. Indeed, the trial court can still exclude the testimony under other evidentiary rules. For example, courts retain discretion—based on the facts and issues in a particular case—to assess the evidence‘s probative value and determine whether it is substantially outweighed by one of Rule 403‘s dangers. See, e.g., United States v. Turning Bear, 357 F.3d 730, 734–35 (8th Cir. 2004); State v. Tetreault, 31 A.3d 777, 782–83 (R.I. 2011); see also State v. Wood, 194 W. Va. 525, 460 S.E.2d 771, 774 (1995) (explaining that, in addition to
To reiterate—based on
At trial, Hayko sought to introduce three opinion witnesses: his father (V1‘s paternal grandfather), his stepmother (V1‘s paternal step-grandmother), and his sister (V1‘s paternal aunt). During an offer of proof, Hayko elicited testimony from these witnesses to establish a foundation for their opinions. Each witness testified they had known V1 since she was born, had been around her multiple times a year at family gatherings, had directly communicated with her and personally observed her interactions with others, and had last seen her not long before the allegations. Based on those experiences, V1‘s paternal grandfather opined that V1 has a “[d]ishonest” character, and her paternal step-grandmother similarly testified that V1 is “very dishonest.” She based her opinion on witnessing V1 lie to Hayko after hitting another child and after taking a toy from another child. Likewise, V1‘s paternal aunt opined that V1 is “a very dishonest child.” She explained that she started to notice V1‘s dishonest character when her personality began to develop as a toddler and recounted witnessing V1 lie.
The above testimony established a proper foundation for each witness‘s opinion of V1‘s character for untruthfulness. Their opinions were rationally based on their personal knowledge, specifically their own observations of and interactions with V1, which occurred on multiple occasions. And those opinions would be helpful to the jury because V1‘s credibility was central to the charges against Hayko. Although we have for the first time clarified and applied the requirements for laying a proper foundation for opinion testimony under
The trial court erred because its decision was based exclusively on considerations related to establishing a foundation for reputation testimony. Indeed, the court concluded the witnesses were “too insular” and their contacts with V1 were “not sufficient to justify an opinion about the child‘s reputation for truthfulness.” The court further reasoned the witnesses’ testimony was not sufficiently reliable “because it would be based off the same set of biases.” But whether the witnesses were too
Simply put, the trial court‘s conflation of reputation and opinion testimony—a misinterpretation of the law—resulted in the erroneous exclusion of Hayko‘s opinion testimony for lack of foundation. We now determine whether that error requires reversal.
II. Exclusion of the opinion testimony was harmless error.
A trial court‘s error in excluding evidence does not require reversal if the error was harmless. For non-constitutional errors, like the one here, our harmless-error analysis is found in
No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.
In the two-plus decades since
Here, Hayko argues the error denied him the opportunity to impeach V1‘s credibility, which was vital to his defense. To be sure, credibility is often a central issue in child molestation cases, so impeachment evidence plays a pivotal role for the defense. See, e.g., Baker v. State, 948 N.E.2d 1169, 1179 (Ind. 2011). And, as indicated in Section I, Hayko should have been
In reaching this conclusion, we initially observe that Hayko presupposes the opinion testimony carried a probative value favorable to him. Yet, as revealed in the offer of proof, each witness was a member of Hayko‘s immediate family, so the potential for bias loomed. Moreover, during cross-examination, the State extracted the basis for the witnesses’ opinions, which included recounting stories of V1, as a young child, lying about both stealing a toy and getting into an altercation with another child. It is not, however, uncommon for young children who steal toys or hit others to lie to avoid consequences for these acts. So, while it‘s possible that a reasonable, average jury would have found the witnesses’ opinions undermined V1‘s credibility, it‘s also possible the opinions would have had little to no effect. Accordingly, it is not readily apparent a reasonable, average jury would have weighed the witnesses’ opinions of V1‘s character for untruthfulness in a manner favorable to Hayko.
That said, if the excluded testimony was the only evidence attacking V1‘s credibility, our confidence in the verdict would wane considerably. But the record reveals Hayko impeached V1‘s credibility through other evidence. For example, he told the jury that V1 was “manipulative, vindictive” and that he “knew she was a liar.” He also admitted into evidence text messages between himself and V1‘s mother about V1‘s untruthful character. In one message, V1‘s mother advised Hayko to join her in keeping “a log of all of [V1‘s] incidents” because “[i]t‘s too hard . . . to remember all the episodes she has” and that if she didn‘t see “improvement” in V1‘s behavior, she would “look into a counselor for her.” In another message, V1‘s mother told Hayko that V1 was “learning how to manipulate” people and that, in light of her “manipulative” behavior, “[y]ou can‘t believe everything that comes out of her mouth.”
Further confirming the error does not undermine our confidence in the verdict is the fact that the jury heard Hayko provide inconsistent answers when questioned about V1‘s allegations. In his pre-trial interview, the jury listened as Hayko explained he was “wasted” the night he fell asleep in V1‘s bed and remembered waking up next to her the following morning “cuddling, you know, laying close to her, like, as if she was my wife.” He admitted telling V1 to “keep this between us.” Then, after the detective explained to Hayko the nature of V1‘s allegations, he asked, “Do you know what that sounds like? It sounds like, okay, been drinking, you wasn‘t realizing what you was doing, and then at some point you do realize. Does that make sense?” Hayko responded, “Yeah, it does.” While Hayko denied touching V1 in the ways alleged, he also stated, “[I]f this did happen, you know, and I don‘t recall because I was drinking, wasted, or whatever,” it “would be an isolated incident.” When questioned at trial, however, Hayko provided a different version of events. For example, he testified that he was “not wasted” on the night of the incident and that he could “recall everything” that happened. Thus, a reasonable, average jury would find that just as V1‘s credibility was at issue, so too was Hayko‘s.
Ultimately, we recognize that impeachment evidence can have a profound effect in child molestation cases, as they often turn on credibility determinations. But the erroneous exclusion of some impeachment evidence will not necessarily undermine our confidence in the jury‘s verdict. This case is one such example. Hayko has not shown, considering all the evidence before the jury, that the excluded opinion testimony
Conclusion
Hayko laid a proper foundation to admit his proffered opinion testimony, and the trial court erred in excluding that evidence for lack of foundation. But because we conclude the error was harmless, we affirm.
Massa, Slaughter, Goff, and Molter, JJ., concur.
ATTORNEY FOR APPELLANT
Matthew J. McGovern
Fishers, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Angela Sanchez
Chief Counsel for Appeals
George P. Sherman
Supervising Deputy Attorney General
Indianapolis, Indiana