Stone v. State

GARRARD, Presiding Judge,

concurring in result.

In Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482 our Supreme Court embarked upon a worthy experiment to aid the truthfinding process. In operation the rule there announced has had a rather checkered experience because of the ease of abusing it. See, e.g., Lewis v. State (1982), Ind., 440 N.E.2d 1125; Stone v. State (1978), 268 Ind. 672, 377 N.E.2d 1372; Samuels v. State (1978), 267 Ind. 676, 372 N.E.2d 1186. Two recent decisions suggest its practical impact may be to provide a tool for the prosecution that will be denied to the defense. See Doemer v. State (1986), Ind., 500 N.E.2d 1178 and Gaunt v. State (1983), Ind., 457 N.E.2d 211. Perhaps it is time to reevaluate whether the rule has properly performed its function or whether a different rule such as that provided in § 801(d)(1)(B) of the federal rules might better serve Indiana.

Secondly, I recognize that the fact a child witness tells a number of people of his or her abuse may demonstrate that the child is crying out for help. Even so the verbatim repetition of all those accounts, as occurred here, can be highly prejudicial. I agree with the majority that it was an abuse of discretion prejudicial to defendant to permit those repeated accounts over proper objection.

I therefore concur in the result reached.