*1 797 safeguards police, neither ment to gain using it to guidance office from protections of I.C. warnings nor the jackets. Miranda and steal lockers student access to him); v. also Scolt apply to See 31-6-7-3 Beck by Mr. questioning 170, de- (1987), cert. to custodi not amount does father and S.A.'s 978, (1987), 484 U.S. Indiana nied v. Scott warn Miranda interrogation. The police al 492, 490. L.Ed.2d 108 98 S.Ct. designed to secure ings were com right against constitutional defendant's CONCLUSION v. Ari Miranda self-incrimination. pulsory 1602, 436, 16 (1966), 86 S.Ct. U.S. foregoing, the searches zona Based on subjected prop- bag were an accused and school book When locker L.Ed.2d 694. S.A.'s prosecution "the the "rea- interrogation, 20-8.1-5-17 and pursuant to .C. to custodial er T.L.O., statements, exeulpatory suspicion" whether standard may not use sonable 788, 325, LEd.2d in 105 S.Ct. stemming U.S. from custodial inculpatory, subject to custodi- Additionally, was not S.A. it demon unless the defendant terrogation of safeguards meaning ef Mi- procedural interrogation within the the use al strates Fifth and [defendant's randa, to secure to vice- fective made his statements and thus against privilege properly admitted. Amendment] Beck were principal Fourteenth 444, at at 86 S.Ct. self-inerimination." decision to Accordingly, trial court's only to warnings apply Mirando 1612. The is affirmed. suppress to deny motion S.A.'s Id.; Oregon v. Mat interrogation, custodial 711, 492,494, (1977), 97 S.Ct. 429 U.S. hiason FRIEDLANDER, JJ., CHEZEM 714, they are meant because 50 L.Ed.2d concur. po inherently coercive to overcome inter of custodial atmosphere dominated lice Miranda, at 86 S.Ct. 384 U.S.
rogation. (1994), 1612; v. State Carter See also
at Here, there N.E.2d 830.
Ind.App., 634 protect atmosphere
no such coercive place in the took questioning
against. The a vice-principal, and building, by the school SLOAN, Appellant-Defendant, Verle presence in the major portion of it v. such, not in father. As S.A. student's Indiana, Appellee-Plaintiff. STATE interrogated custody nor was he police officer, Miranda and therefore police No. 52A02-9406-CR-312. inapplicable. safeguards are of Indiana. Appeals Court he was denied argues that also S.A. meaningful Aug. consultation for the requirements The his father. 25, 1995. Oct. Denied Transfer child have rights of a of constitutional waiver 31-6- legislature I.C. by our codified been ad (1988). affords Essentially, Indiana 7-3 juveniles in order protection to
ditional Foster v. State waiver. See a valid
effectuate N.E.2d 337, 347, trans. (1994), Ind.App., 633 However, was not S.A. because
denied. by a law questioned custody and not
police officer, meaningful consulta
enforcement apply. safeguard does
tion sup motion denied S.A.'s properly Sevion See
press his statements. (when Ind.App., custody gives a state-
juvenile who is *2 intercourse sexual had committed that he 1991; July Count
with her deviate sexual committed he had 1991; charged that July Count 3 with her intercourse sexual he had committed *3 1991; charged and Count August her con- deviate sexual had committed that he was August 1991. Sloan her in duct with jury February The found 1998. first tried in 2, 8 but was Counts and guilty Sloan McNeil, Liell, Wa- Liell & C. Katherine Ac- 1. a verdict on Count to reach unable bash, appellant. for a mistrial trial court declared cordingly, the Carter, Attorney General Pamela 1. on Count A. Indiana, Lupton, James Weber Suzann 1 in December on Count the retrial Before General, Indianapo- Attorney Joven, Deputy it intended to gave notice that the State lis, appellee. for had molested that Sloan evidence introduce charged other than on occasions S.S8. OPINION all in limine to exelude moved date. Sloan KIRSCH, Judge. other any alleged molestations July 1991 sexual intercourse than molesti of Child convicted Sloan was Verle in limine 1. The motion charged in Count jury trial felony, following a B ng,1 a Class timely trial, over Sloan's and at denied was conviction, alleging that evi appeals his He multiple molesta- objection, testified S.S. of the victim molestations his other dence of Sloan, five beginning when she was tions and that improperly admitted was years, approximately six continuing, for and a rebuttal existence of failed to disclose victim, Accordingto the August 1991. until witness. and of both anal consisted molestations those reverse. We vaginal intercourse. inci- one specifically described victim The ISSUES claimed which she of anal intercourse dent as: our review the issues for restate We 1991, immediately after July had occurred of evidence admission 1. Whether The anal vaginal intercourse. victim molestations other Sloan's had been by the victim intercourse described reversible error? was conduct deviate sexual for the basis disclose failure to the State's 2. Whether trial; a first 2 in Sloan's charged as Count reversible error? rebuttal witness jury found Sloan which the charge on in his testified In trials Sloan guilty. both mo- defense, denying FACTS he had ever own daughter. his lested judgment favorable to facts most September of show that of conviction ten-year given a and convicted Sloan was Miami Davis, North principal of the Donald and two sentence, years suspended two School, eleven-year Elementary summoned appeal followed. This years probation. about her asked into his office and S.S. old her Davis that told problems. S.S. personal AND DECISION DISCUSSION Sloan, molesting her father, Verle Extraneous Evidence of five doing since she was Issue One: so had been accusations, and Misconduct reported S.S.'s Davis old. household. from the Sloan removed she was to bolster perceived need response to a In victims, solitary particularly testimony of counts charged with four victims, courts charged child appellate molesting our daughter: Count molesting his Ed.). (1988 35-42-4-3(a) See IC "(1) proving be directed toward a matter fashioned what became known as the de- praved exception gener- sexual instinet to the in issue other than propen- the defendant's (2) al rule that excluded sity the ac- charged, to commit the crime show cused's extraneous bad acts. See Lannan v. enough act is similar enough close in time to be relevant (8) exception issue, allowed the admission of evi- matter in be such that a reason- dence of certain kinds of jury extraneous sexual able could find that the act occurred incest, prosecutions misconduct sod- act, and that the defendant committed the omy, (4) deviate and child mo- requirement meet the of Rule 403 lesting. probative that the evidence's value not be substantially outweighed by danger Lannan, court abol prejudice." unfair *4 depraved exception ished the sexual instinct 404(b)2 (1994), Fisher v. replaced Ind.App., with Fed.R.Evid. Id. N.E.2d 105, 108, rule, (quoting at 1339. trans. denied Pursuant to that evidence of United (ith Cir.1992), an States v. Schweihs longer accused's extrancous bad acts is no F.2d 1311). prove depraved admissible to a in- sexual stincet, may but "such evidence be admissible trial, At S.S. testified that she had first despite tendency to show bad character or been molested Sloan when she was five propensity, criminal if it makes the exis old, years and that he had continued to mo- tence of an charged element of the crime twenty lest her about year times a for the probable more than it would be without such years. next six The victim also testified that (quoting Bedgood evidence." Id. v. State shortly after Sloan had through molested her (1985),Ind., 869, 872-73; empha vaginal incident, charged intercourse as the original). sis in engaged he also in anal intercourse with her. 404(b), Lannan, adopted Fed.R.Evid. in This act of anal intercourse was the basis of reads: the deviate sexual charged in Count crimes, original information, 2 of wrongs,
"Evidence of other the or one of the charges acts acquitted. is admissible to the which Sloan charac- was Rec- person ter of a in ord at 686. separately order to show action in We will discuss the conformity however, admissibility may, therewith. It testimony be the victim's about purposes, prior admissible for other the six such as molestations and the proof motive, intent, subsequent opportunity, prepa- anal intercourse. ration, plan, knowledge, identity, or ab- A. Prior Molestations accident, sence of provided mistake or trial, At the State offered the victim's testi- accused, upon request by prosecu- mony that Sloan had molested her for six provide tion in a criminal case shall reason- years as evidence of Sloan's common scheme able during notice advance of or plan exploit or sexually abuse her. if pretrial the court excuses notice on 249, 441, Record at argues 468. Sloan shown, good general cause nature of the victim's was not evidence of a any such evidence it intends to introduce plan and, therefore, common or scheme at trial." proving directed toward matter issue
Lannan, 600 N.E.2d at n. 4.3 other propensity than his to commit adopted four-part We have test charged crime. admissibility evaluate the of evidence under 404(b); Rule requires this test the evi The common plan excep scheme or dence: tion has permits two branches: the first January Effective 1994 our purpose as a listed for the admission Evidence, adopted the Indiana Rules of which of extraneous bad acts evidence. Because Sloan 404(b). included Federal Rule was tried after Lannan but before the effective date the Indiana Rules of Evidence were 404(b) Ind.Evidence Rule is the same as the adopted, apply we the federal rule here. rule, except federal the state rule omits uninterrupted an years constitute six ued for accused showingthat the identity by proof modus transaction. with identical crimes other committed proof of permits the second operamdi; mind, these weaknesses Perhaps with precon- aof as evidence uncharged crime its com- appeal has abandoned the State included which plan ceived the admis- plan argument for mon scheme Lannan, at 18339. N.E2d crime. molested the that Sloan sibility of evidence charged crime sole defense Sloan's charged inci- years before victim for six victim; if molested the had not that he brief, argues the State appellate In its dent. occurred, identi- Sloan's had molestation demon- admissible to evidencewas that such dispute. never the molester ty as parties. relationship between strate testimony about victim's Consequently, the at 10. Appellee's Brief molestations, contempo- and the Sloan's argument support of its intercourse, would be admissi- anal rancous victim molestation of the plan or Sloan's the common only "to demonstrate ble relationship between to show activity admissible from which scheme Thompson v. cites parties, charged crime." originated the accused (1993), 1822. The Ind.App., 625 N.E.2d 441 (quoting Malone argument continues: 1346). the com- State's This branch of *5 "is also known exception plan or mon scheme "Here, many the identical of the under which theory gestae, res of as the admissible to [sic] were prior assaults dem- com- that present evidence is allowed to state par- the relationship between the onstrate ways that crime in story of the the pletes justified the ad- rationale A similar ties. uncharged miscon- incidentally reveal might of prior molestations mission of evidence (foot- Lannan, 1889 N.E.2d at duct." Thompson v. in the case a child victim added). omitted; Our su- emphasis note There, here, State, victim as the supra. explained that: later preme court hugging began the defendant that testified the common branch of gestae Id. at 1824. "funny" "The res manner. in a her admission exception touchings allows plan or these scheme that The child testified are evidence uncharged severity, acts that culmi- prior and in nature progressed included the plan, which inter- preconceived multiple acts of sexual nating of a in 'must prior The offenses that charged crime. determined course. court plan preconceived parties history tend to establish between prior " committed. crime was relation- show the [sic] which to 'to admissible therefore, must, Id., quoting be so related parties'" crimes ship The between character, time, place Ind., of commission (1998), and in 619 N.E.2d v. Price plan which embraced 584." some to establish as subsequent criminal prior and
both the
at 10.
Appellee's Brief
Malone, 441
activity
charged crime'
and
Thompson is
quotation from
The State's
Lannan,
further
we
In
N.E.2d at 1347.
There, we held
misleading.
incomplete
exception.
The Court
elaborated
uncharged crimes
that:
that evidence
held
exception where
gestae
res
falls within
recently pre-
supreme court
"Our
an
part of
unin-
erimes was
of those
each
challenge
the admission
with a
sented
Lannan,
terrupted
transaction.
newly adopted
pursuant
(citing
v. State
Wilson
at 13840
(1998),
v.
in Price
rule of evidence
(alteration
587)
in
Ind.,
(1986),
491 N.E.2d
a mur-
Ind.,
appeal of
619 N.E.2d
original)."
that
court held
The
conviction.
der
against
acts of violence
prior
Ind.,
defendant's
(1998),
v. State
Hardin
the rela-
"to show
admissible
his wife were
to establish
is no evidence
There
129-30.
appel-
parties
tionship between
for six
molesting
the victim
that Sloan's
commis-
in the
and intent
motive
plan.
lant's
any preconceived
pursuant
years crime."
sion
molesting which contin-
monthly
Nor could
Thompson,
(emphasis
July
trial relitigation of an not involved the “[o]rdinarily, uncharged trial had evidence of crimes of Little against when decided the State issue in this case could be the character introduced Little v. acquitted in the first trial. major jury.” impact have a on the Id. said to (1991), Ind., 676. Our however, concluded, at 1341. The Court that however, court, vacating disagreed, bad evidence did not the extraneous acts remanding the case conviction Little’s .and reversal of the conviction because mandate id. trial. See a new incriminating by declaration made Lannan Here, has us with a provided Sloan corroborating testimony party third of a part of the transcript of his first trial as improperly greatly impact lessened of the record; are thus able to review we jury. admitted evidence estop- determine whether collateral record to trial, in find neither record of Sloan’s we at pel evidence of the anal intercourse barred corroborating criminating nor declarations unnec making second a remand Sloan’s by parties. testimony third Our assessment essary. Through that we find review impact improperly probable of the evidence in the second the contested upon jury here is admitted evidence in anal in showing engaged had Sloan harmless; reversal, there the error was daughter with his was an issue tercourse' fore, required. is by acquittal first trial. his in the determined collaterally estopped from relit- The State repeated discovery of rea- The State’s new issue, attempt to do so is igating this admissibility of the evidence of sons for the error. acts, and its conse- Sloan’s extraneous bad previous quent abandonment of each of its Error C. Harmless reasons, suggests evidence was ac- that such if extraneous Even the evidence Sloan’s tually offered to Sloan’s bad character. inadmissible, argues, bad acts suggestion is reinforced the use the its admission was harmless because argu- in final made of guilt. responds of his ample evidence talking very prior molesta- distasteful the victim’s ment: “We’re about tions, occur including alleged to incidents being perpetrated on her time and crime old, only highly five when she was many years.” Record at 399. again over time *7 swayed jury’s prejudicial and the verdict. her molested her time testified father “[S]he poten- supreme recognized court has the Our age again from the of five a and time evidence, type warn- prejudice tial this of at half.” Record ing that: prior uncharged misconduct “Admission 404(b)’s exceptions WeviewRule to. char- [implies] that the is of bad defendant excluding evidence of the accused’s the rule jury poses danger the that the acter and examples legiti acts bad as extraneous solely upon [implication]. convict
will of such for evidence purposes mate which Similarly, have authoritative commentators evidence, and not may be offered into as acts uncharged mis- that the noted admission inventory justify to of excuses used may weigh heavily against a de- type that when the of evidence admission fendant, dispositive factor becoming even a is to purpose true admission Imwinkel- in conviction. See Edward J. ried, Uncharged Evidence extra Misconduct To introduce accused’s bad character. (1984-1991).” § 1:02 at evidence, proponent of acts neous bad legiti (1993), Ind., rational and must articulate a Wickizer (citation omitted). 795, 797 the evidence and connection between mate actually in the case. matter at issue some assessing impact probable In here, Where, is unable proponent to as upon jury of of the accused’s connection, likely a it is anoth such molestations of the victim and of demonstrate purpose that none exists and the true applies equally rebuttal witnesses in eriminal proving prosecutions. evidence was the forbidden one of the accused's bad character. McCullough clearly rule was es Admissibility tablished well before Sloan's second trial.
Issue Two: Testimony obligation The State had an to disclose its Rebuttal Sloan, rebuttal witness to failed trials, At Wagner both Sloan called Steven obligation; the failure was error. a Wagner, as witness. who had been the victim's school bus driver when she lived with The State contends this error also was Sloans, testified that the victim had a harmless because Sloan was allowed to inter- reputation for untruthfulness. Several other view Winters for a few minutes before she by witnesses called Sloan in both trials also responds testified. Sloan if he had reputation testified to the victim's bad possible known Winters was a rebuttal wit- truthfulness. At the second ness, might then he not have raised the witness; called Diane a Winters as rebuttal reputation victim's for truthfulness as an is- Winters had not testified at Sloan's first trial. by calling Wagner testify. sue Winters, who was the victim's school bus Because we reverse Sloan's convic driver after the victim left the Sloan house- tion due to the hold, erroneous admission of evi good testified that the victim had a acts, dence of his extraneous bad we do not reputation for truthfulness. reach the issue of whether the State's con objected to Winters' be- cealment of its rebuttal witness constitutes requested cause he had a list of the State's observe, however, reversible error. We witnesses and Winters had not been listed as in McCullough, supreme strongly our court potential witness. The State at admitted condemned the concealment of known and trial knowledge it had of Winters aas anticipated witnesses; rebuttal such condem potential witness at least a month before implies nation that such concealment should trial, but responsibility denied that it had a rarely be found to be harmless error. notify potential Sloan of its rebuttal wit- Where, here, as the error by cannot be cured nesses. giving surprised party a few minutes to McCullough v. Archbold Ladder continuance, interview the witness or (1993), Ind., Co. give court should careful consider court held that "the nondisclosure of a rebut ation excluding the concealed evidence. only tal witness is excused when that witness Reversed. unanticipated; was unknown and known and witnesses, anticipated presented if even RILEY, J., concurs. rebuttal, pursuant must be identified to a order, order, pre-trial such as a or to a SULLIVAN, J., separate concurs with Id., proper discovery request." opinion. at 179. The Court noted that to its *8 McCullough, decision in requir the case law SULLIVAN, Judge, concurring. ing the disclosure of rebuttal witnesses was I concur appropriate but deem it to com- not clear and that exclusion of a rebuttal regard ment with majority opinion testimony witnesses' before the law was clar concerning testimony the rebuttal of Diane penalty; ified was too harsh a once the rule Winters. established, clearly however, then exclu sion of testimony the undisclosed rebuttal Even the line of represented by cases (1975) 531, Id., would penalty. not be too 263 Ind. harsh Chatman Although N.E.2d at 181. McCullough 673, was a adopted by N.E.2d as Supreme our case, Court in McCullough v. ArchboldLadder Co. civil we do not litigants believe that civil should be- afforded protection more than (1993) Ind., require do not defendants; consequently we con possible prospective disclosure of a or even a clude that its rule regarding disclosure of rebuttal party calling witness unless the anticipate the expected be witness could anticipation neces- rebuttal. Such CLIFFORD,
need for Appellant, John W. depends upon what is known be sarily v. likely to submitted the other be MARION COUNTY PROSECUTING party. Appellees. ATTORNEY, McCullough, supra:
As stated No. 49A02-9501-CV-4. gives very of a trial rise to nature "[The Appeals Court of of Indiana. will be raised the likelihood that issues case which the during the defendant's Aug. logically anticipate, and could not State permitted to seek out and that the State 'is hitherto-unexpected persons to rebut
call
(citing
v. in whether or not the rebuttal
The rub lies
testimony truly anticipated. precluded
A not be from sub party should if,
mitting prior to rebuttal evidence conjectural specula
prospective use (1994) 4th In Palmer v. State Dist.Ind.
tive. an even
App., 640 N.E.2d took permitting un expansive
more view toward evidence, holding that al
disclosed rebuttal un
lowing was not reversible such act of non-disclosure was "an intentional
less part faith of the State." 640
bad
N.E.2d at
I hold that disclosure is not neces- would
sary party unless the has reason to know party likely than opposing
that the will more making produce the rebuttal clearly the case here.
appropriate. That was obligation had an to disclose Win- prospective as a rebuttal witness. For
ters reason, fully Issue I I concur as to Two.
concur as to One. Issue