ATTORNEY FOR APPELLANT
Terry R. Curry
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
STEVE L. YOUNG, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0001-CR-32
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9709-CF-130751
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
May 4, 2001
BOEHM, Justice.
Steve Young was convicted of two counts of child molesting and of
being a habitual offender. He was sentenced to concurrent terms of fifty
and thirty years. The fifty-year sentence was enhanced by thirty years for
the habitual offender conviction resulting in an aggregate sentence of
eighty years imprisonment. In this direct appeal, he contends that (1) the
trial court abused its discretion by denying his motion for DNA testing;
(2) the trial court erred by granting the State’s motion in limine to
preclude evidence regarding prior false accusations by the victim; (3) the
State engaged in prosecutorial misconduct; and (4) trial counsel was
ineffective. We affirm the judgment of the trial court.
Factual and Procedural Background
Young, Erica Riley, and Riley’s father lived together with Riley’s
seven children, three of whom were Young’s. On the night of March 29,
1997, Riley left the house and her children in Young’s care. After the
children were ready for bed, they and Young went into Riley’s bedroom for
“treats.” Young gave sweets to some of the children and offered candy or
money to L.R., Riley’s eleven-year-old daughter, if she would put on
Riley’s nightgown. When L.R. refused, Young kept her in the room as the
other children left. Young secured the door and then pushed L.R. onto the
bed and penetrated her vaginally and anally. When the assault was over, he
told L.R. to take a shower. L.R. showered and fell asleep before her
mother returned home.
The next morning L.R. told her mother what had happened. Riley did
not believe L.R. and took her to the hospital for a physical exam. The
examination uncovered physical injuries consistent with L.R.’s description
of the events, including a superficial tear to L.R.’s anus, hypopigmented
inner labia, redness around L.R.’s hymenal edge, and abnormal vaginal
discharge. A rape kit was assembled. No seminal fluid was found on either
the oral or vaginal slides, but spermatozoa were found on the rectal slide.
Young was charged with two counts of child molesting. Both the State
and Young requested DNA testing on the rectal slide, but Dr. Mohammad
Tahir, the Technical Manager of the Marion County Crime Laboratory,
determined that the small number of sperm rendered any testing unreliable.
At trial, L.R. testified to the events as described above. She also
testified that her grandfather and her brother heard her screaming when
Young attacked her and they attempted to get inside the bedroom. Her
grandfather denied hearing any screams on the night of the attack. At
trial, her brother, Delance, also denied hearing L.R.’s screams. However,
Delance agreed that he had told police in a statement made shortly after
the attack that he had heard his sister scream. Young was convicted of
both counts of child molesting, found to be a habitual offender, and
sentenced to eighty years imprisonment. Young then filed a motion to
correct error, contending that his trial counsel was ineffective. The
trial court held a hearing on this motion and denied it in a written order.
I. DNA Testing
Young first claims that the trial court abused its discretion by
denying his pretrial motion to compel DNA testing of the sperm sample taken
from L.R.[1] The State’s response to the motion asserted that it did not
control the Crime Lab and any motion to compel must be directed to the
laboratory. The State also claimed, without evidentiary support, that it
had been advised by the laboratory that no reliable test could be
performed. We think it is obvious that it would be an abuse of discretion
to deny an impecunious defendant funding for a potentially exculpatory DNA
test. Cf. Sewall v. State, 592 N.E.2d 705 (Ind. Ct. App. 1992) (granting
postconviction discovery of DNA where the conviction predated DNA
technology and identification was the principal issue). But that is not
what happened here. On August 13, the trial court denied Young’s motion.
The court later, by minute entry, directed the State “to submit [an]
affidavit from the doctor about DNA testing.” In an affidavit filed on
December 8, 1998, Tahir stated that the sample in this case contained eight
spermatozoa and “we will not perform DNA typing analysis on a specimen
which contains less than approximately fifty (50) Spermatozoa to obtain a
reliable result . . . .”
The trial court has broad discretion in dealing with discovery
violations and may be reversed only for an abuse of that discretion
involving clear error and resulting prejudice. Berry v. State, 715 N.E.2d
864, 866 (Ind. 1999). It was not an abuse of discretion for the trial
court to refuse to expend public funds on a test that the record before the
trial court indicated would produce no reliable evidence. Cf. Graham v.
State, 535 N.E.2d 1174, 1175-76 (Ind. 1989). The trial court sua sponte
supplemented the record with Tahir’s affidavit, and Young provides nothing
to the contrary. If Young wished to dispute this claim of unreliability,
he was free to do so. On this record, we find no abuse of discretion in
refusing to fund testing.
II. Prior Accusations of Molestation
Young next claims that the trial court erred by sustaining the
State’s motion to exclude evidence of L.R.’s prior false allegations of
molestation. By motion in limine, the State requested exclusion of this
evidence. At the motion in limine hearing, Young’s counsel stated that
he intended to offer a statement by L.R. to Delance that L.R. intended to
“lie on” Young. The trial court ruled that this testimony would be
admissible. At trial, L.R. denied making such a statement, and the subject
was not raised with Delance. As to the claim of L.R.’s false allegations
against other men, the trial court took the view that evidence of this sort
would result in a trial within a trial as to whether L.R. made any such
allegations and, if so, as to the truth or falsity of L.R.’s accounts of
these other incidents. The trial court ruled on the motion in limine that
the defense would have to ask for relief if it sought to admit that
evidence. This was never done, so we have no idea what form this evidence,
if it exists, would have taken. As a result, we have no basis to evaluate
the degree to which the evidence would have complicated this trial. In the
hearing on the motion to correct error, Young’s counsel testified and again
referred to L.R.’s prior accusations of molestation by others, but again
gave no specifics. Failure to make an offer of proof of the omitted
evidence renders any claimed error unavailable on appeal unless it rises to
the level of fundamental error. Miller v. State, 716 N.E.2d 367, 370 (Ind.
1999); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind. 1985).
To constitute fundamental error, the “defendant must show that the
error was a substantial and blatant violation of basic principles which
rendered the result of the trial unfair.” Roach v. State, 695 N.E.2d 934,
942 (Ind. 1998). Even after the motion to correct error hearing, it is
entirely unclear from the record what evidence, if any, Young would have
presented. As a result, we cannot determine that the result of his trial
was unfair. Young also makes the bald allegation on appeal that, “the
potential for harm to Young by such exclusion cannot be denied.” Although
this may be true if the evidence exists, there is no offer to prove that it
does exist, or if it does, what it is.
III. Prosecutorial Misconduct
Young claims that the State engaged in prosecutorial misconduct by
suggesting that statements made by the victim’s brother Delance were
substantive evidence that corroborated L.R.’s version of the attack. A
claim of prosecutorial misconduct requires a determination that there was
misconduct by the prosecutor and that it had a probable persuasive effect
on the jury’s decision. Marcum v. State, 725 N.E.2d 852, 858 (Ind. 2000).
During closing argument, the State said:
And Delance told us that just a day after this allegedly occurred, not
even, not even twenty-four hours, he talked to Det. Cathy Graban in
this case, and he told her that he heard screams. Something was going
on in that room.
. . . .
Did [L.R.] scream out loud? Well, that’s what Delance said the day
after.
At trial, Delance testified that he heard no screams or noise coming from
the bedroom during the attack. He also claimed no memory of having told
the police of hearing screams. The State presented Delance with a
transcript of his statement to police on the day following the incident in
an effort to refresh his recollection. Although the term “refresh
recollection” was not used, use of the transcript for this purpose was
appropriate. See 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101
(2d ed. 1995) (“If the witness replies that the writing has refreshed his
memory, he may be examined on the subject but may not testify from the
writing itself.”).[2] Delance then admitted that he had told the officer
of screaming on the night of the incident. The obvious next question was
whether he was truthful in his statement to the officer. That question was
not asked.
Young contends that Delance’s admission that he made the prior
statement was not admissible for the purpose cited by the prosecution,
i.e., to prove that Delance heard screaming. He is correct that the
admissible evidence (Delance’s statement on the stand, not the transcript)
established only that Delance reported screaming to the officer, not that
it was true that he heard screaming on the night of the assault. Young
correctly points out that the testimony did not satisfy the requirements of
Indiana Evidence Rule 801(d)(1)(A) if offered to prove that Delance heard
screaming. That rule provides that:
[a] statement is not hearsay if: The declarant testifies at the trial
or hearing and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with the declarant’s
testimony and was given under oath subject to the penalty of perjury
at a trial, hearing or other proceeding, or in a deposition.
Young is correct in his contention that because Delance’s prior statement
was apparently not made under oath, it was not admissible under Rule
801(d)(1)(A). It was, however, admissible under Rule 613 to impeach
Delance’s denial of having heard screaming. Miller, supra, § 613.101.
Ordinarily, prior inconsistent statements are used to impeach, not as
substantive evidence of the matter reported. Id. As a result the jury was
left with Delance’s testimony that, on the day after the event, he had
reported screaming, and his denial at the trial that he had heard it.
Presumably, his credibility in contesting L.R.’s account that included
screaming was significantly impaired, but the statement was not, as the
prosecutor described it, proof that Delance heard screaming. There is no
basis to conclude that the prosecutor intentionally finessed this rather
elegant point of evidence law, and all of this is insufficient to amount to
prosecutorial misconduct. In any event, Young made no objection to the
prosecutor’s references to Delance’s statement as support and requested no
instruction on this point. Accordingly any claim of error is waived unless
it constitutes fundamental error. Robinson v. State, 693 N.E.2d 548, 552
(Ind. 1998). This omission is plainly not fundamental error. See Allen v.
State, 716 N.E.2d 449, 453 (Ind. 1999).
IV. Ineffective Assistance of Counsel
Finally, Young claims that his trial counsel was ineffective. A
defendant claiming a violation of the right to effective assistance of
counsel must establish the two components set forth in Strickland v.
Washington, 466 U.S. 668 (1984); accord Williams v. Taylor, 529 U.S. 362,
390-91 (2000). First, the defendant must show that counsel’s performance
was deficient. Strickland, 466 U.S. at 687. This requires a showing that
counsel’s representation fell below an objective standard of
reasonableness, id. at 688, and that the errors were so serious that they
resulted in a denial of the right to counsel guaranteed the defendant by
the Sixth Amendment, id. at 687. Second, the defendant must show that the
deficient performance prejudiced the defense. Id. To establish prejudice,
a defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord those decisions deference. Id. at 689. A
strong presumption arises that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. The Strickland Court recognized that even the
finest, most experienced criminal defense attorneys may not agree on the
ideal strategy or the most effective way to represent a client. Id. at
689. Isolated mistakes, poor strategy, inexperience, and instances of bad
judgment do not necessarily render representation ineffective. Ingram v.
State, 508 N.E.2d 805, 808 (Ind. 1987).
The two prongs of the Strickland test are separate and independent
inquiries. Thus, “[i]f it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice . . . that course should be
followed.” Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting
Strickland, 466 U.S. at 697).
In this case, Young alleges nine instances of deficient performance
by trial counsel, two of which are failures to preserve the issues
discussed in Parts II and III. The other allegations include that defense
counsel did not: advise Young’s daughter about a separation of witnesses
order, cross-examine a doctor who testified for the State about L.R.’s
physical injuries, confront L.R. concerning inconsistencies in her
statements, object to additional parts of the State’s closing argument,
establish a foundation for Riley’s testimony, or use evidence that the
State had removed L.R. from her mother’s care. Young further alleges that
defense counsel fell asleep during a meeting with him. In its order on
Young’s motion to correct error, the trial court addressed Young’s
counsel’s failure to advise his daughter and present her testimony and to
cross-examine the doctor and concluded that:
taken as a whole, counsel’s performance was objectively reasonable.
Second, the Court finds that, even if counsel’s performance were
deficient, the victim’s testimony, the physical findings made by the
doctor the day after the crime, and the finding of semen in her rectal
area constitute overwhelming evidence of Young’s guilt such that
jury’s verdict and Young’s trial were reliable and fair.
We cannot conclude that the trial court abused its discretion in making
these findings.
Even if there were isolated instances of deficient performance, we
need not address every allegation in detail because Young has failed to
establish prejudice. L.R. described the attack in great detail. Her
testimony was corroborated by the physical evidence, including the injuries
to her genital and rectal area and the semen in her rectal area. The trial
court found the evidence so persuasive that the claimed errors would not
have affected the result of the trial. We cannot say this finding was
clearly erroneous. Although the trial court’s finding of lack of prejudice
was with respect to only two of the nine alleged shortcomings in trial
counsel’s performance, we reach the same result on Young’s remaining
claims. On this record, Young has not persuaded us that there is reasonable
probability that the result of the proceeding would have been different if
his trial counsel had performed adequately. Accordingly, he cannot succeed
on his claim of ineffective assistance of counsel.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] Young also alleges that this failure to have the DNA tested violated
“Indiana Trial Rule 34, Art. I, Section 12 of the Indiana Constitution, and
the Sixth and Fourteenth Amendments to the United States Constitution.”
Because he does not present cogent arguments in support of these
contentions, they are waived. Former Ind.Appellate Rule 8.3(A)(7) (now
App.R. 46(A)(8)).
[2] The term “refresh recollection” was not used by either the prosecutor
or the witness. However, the following exchange was in substance used for
this purpose. On cross-examination, defense counsel asked, “And you didn’t
hear any screaming, did you?” Delance responded, “No.” On redirect,
Q (State): Okay. And did you tell the detective [the day after the
attack] that you heard [L.R.] scream? Did you tell her that?
A (Delance): I can’t remember, because that was a long time ago.
Q: Okay. Delance, I’m going to show you what I’ve marked as State’s
Exhibit Number 10, and ask if you recognize this.
A: Yes.
Q: Okay. Is this the, a statement that you, you’ve seen before?
….
A: Yes.
Q: Okay. Is this the statement that you gave to the police officer on
that day?
A: Yes.
Q: Okay. Did—have you read it over before today?
A: Yes.
Q: Okay. Delance, I’m going to direct your attention to the bottom
of page 2, and ask you to read over from the question that begins, was
she screaming. Just read it to yourself. Let me know when you’re
finished. Delance, at that time that you talked to the detective did
you tell her that you heard your sister scream?
A: I think I did.
Although a trial practice professor might demand that the questioner ask
the witness if his memory is refreshed and remove the item before
continuing, the foregoing was sufficient.