ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer Nandita G. Shepherd
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
ANDREW W. CARIE, ) Supreme Court No.
Defendant-Appellant, ) _________________
)
v. ) Court of Appeals No.
) 53A01-0009-CR-304
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Elizabeth N. Mann, Judge
Cause No. 53C04-9912-CF-840
________________________________________________
On Petition To Transfer
January 9, 2002
DICKSON, Justice, dissenting from denial of transfer.
This case presents an opportunity for this Court to clarify and
direct the bench and bar regarding whether to instruct a jury in criminal
cases that a conviction "may rest upon the uncorroborated testimony of the
victim." A majority of my colleagues have decided to deny transfer in this
case. There is a significant variance between the trial objection and the
issues raised on appeal. Notwithstanding this concern, I would grant
transfer to enable this Court to express its disapproval of the future use
of such an instruction.
At the defendant's trial for molesting an eleven-year-old girl, one
of the court's final instructions to the jury stated: "A conviction for
child molesting may rest upon the uncorroborated testimony of the victim."
Record at 561. This instruction should be avoided for several reasons: it
improperly refers to the State's witness as "the victim;" it improperly
emphasizes a single piece of evidence and may be understood to advise the
jury to ignore other evidence; its use of the legal term "uncorroborated"
may confuse or mislead the jury; and it imports a standard of appellate
review not appropriate for jury consideration.
In criminal cases, particularly those in which the defendant disputes
the nature or cause of harm inflicted, or challenges whether an alleged
crime occurred, it is reasonable for a prosecutor to refer to the person
harmed as the "victim," notwithstanding the defense counsel's preference
for a different designation. But the court must remain neutral. "A trial
judge must maintain an impartial manner and refrain from acting as an
advocate for either party." Beatty v. State, 567 N.E.2d 1134, 1136 (Ind.
1991). By referring to the complaining witness as "the victim," the
instruction implies to the jury that the trial judge accepts as truthful
the complaining witness's contentions regarding the alleged incident. The
trial court thereby improperly expresses approval of the State's case and
invades the province of the jury.
The instruction also improperly highlights the testimony of one
witness. Instructions that unnecessarily emphasize one particular
evidentiary fact, witness, or phase of the case have long been disapproved.
See Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001); Perry v. State, 541
N.E.2d 913, 917 (Ind. 1989); Patrick v. State, 516 N.E.2d 63, 65 (Ind.
1987); Coleman v. State, 465 N.E.2d 1130, 1133 (Ind. 1984); Fehlman v.
State, 199 Ind. 746, 755, 161 N.E. 8, 11 (Ind. 1928); Danville Trust Co. v.
Barnett, 184 Ind. 696, 700, 111 N.E. 429, 431 (1915). "'[A]n instruction
directed to the testimony of one witness erroneously invades the province
of the jury when the instruction intimates an opinion on the credibility of
a witness or the weight to be given to his testimony.'" Pope v. State, 737
N.E.2d 374, 378 (Ind. 2000)(quoting Fox v. State, 497 N.E.2d 221, 225
(Ind.1986)); see also Webb v. State, 259 Ind. 101, 105-07, 284 N.E.2d 812,
814-15 (Ind.1972)(finding error, although not fundamental error, in the
trial court giving an instruction declaring that the credibility of a
witness could be attacked by evidence that the witness had been convicted
of a crime where the instruction applied only to one witness). But see
Black v. State, 153 Ind.App. 309, 316, 287 N.E.2d 354, 358 (1972) (holding
that where several witnesses were impeached by evidence of prior
convictions there was no error in giving an instruction concerning the
effect of prior convictions on the weight to be given to a witness's
testimony). By training the jury's attention on the complaining witness's
testimony, the instruction communicates the trial judge's apparent
determination of credibility. Just as instructions directing the jury to
question accomplice or paid informant testimony have been disapproved, so
should we disapprove the use of the instruction here. See, e.g., Sherwood
v. State, 702 N.E.2d 694, 698 & n.2 (Ind. 1998)(rejecting tendered
instruction that stated that the testimony of an accomplice, "who provides
evidence against a Defendant for immunity or for personal advantage or
vindication, must always be examined and weighed by the jury with greater
care and caution than the testimony of ordinary witnesses"); Brown v.
State, 671 N.E.2d 401, 409-10 (Ind. 1996)(disapproving tendered instruction
that stated that the testimony of an alleged accomplice and a person who
provides evidence for pay, immunity, or personal advantage or vindication
"must always be examined and weighed by the jury with greater care and
caution than the testimony of ordinary witnesses").
Further, the meaning of the legal term "uncorroborated" in this
instruction is likely not self-evident to the lay juror. Jurors may
interpret this instruction to mean that baseless testimony should be given
credit and that they should ignore inconsistencies, accept without question
the witness's testimony, and ignore evidence that conflicts with the
witness's version of events. Use of "uncorroborated" without a definition
renders this instruction confusing and of dubious efficacy.
Finally, the instruction expresses an appellate level of review that
is not well suited for application by the jury at trial. "'The mere fact
that certain language or expression [is] used in the opinions of this Court
to reach its final conclusion does not make it proper language for
instructions to a jury.'" Drollinger v. State, 408 N.E.2d 1228, 1241, 274
Ind. 5, 25 (Ind. 1980)(quoting Jacks v. State, 394 N.E.2d 166, 174 (Ind.
1979)); see also Dunlop v. State, 724 N.E.2d 592, 595 (Ind. 2000); Spence
v. State, 429 N.E.2d 214, 216 (Ind. 1981); Meek v. State, 629 N.E.2d 932,
933 (Ind. Ct. App. 1994); cf. Myers v. State, 532 N.E.2d 1158, 1159 (Ind.
1989). In the appellate review of claims alleging that a trial court
judgment is not supported by sufficient evidence, we often observe that a
conviction may rest upon the uncorroborated testimony of the victim. E.g.,
Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000). This observation is
not, however, relevant to the issues before a jury in a criminal trial.
Its usefulness as an appellate guideline does not justify its use as a jury
instruction.
For the foregoing reasons this instruction should not be given. I
acknowledge, however, that this Court has allowed similar instructions to
survive appellate review. In Lottie v. State, 273 Ind. 529, 532-33, 406
N.E.2d 632, 636 (Ind. 1980), this Court declined to find error in the
giving of a similar instruction.[1] It rejected the claim that the
instruction "invited the jury to give undue weight to the testimony of the
victim," noting the adequacy of other instructions, the fact that the
challenged instruction was not mandatory, and that the instruction was
likely helpful to the jury. Id. at 533, 406 N.E.2d at 636. A jury
instruction informing the jury that the defendant may be convicted on the
uncorroborated testimony of the victim was also permitted in Hicks v.
State, 536 N.E.2d 496, 499 (Ind. 1989), despite a claim that it invaded the
province of the jury and gave tacit approval of the victim's testimony.
Without substantive discussion of these claims, these opinions noted the
adequacy of other principal instructions and found no error. I believe
that the Court today would decline to find Lottie and Hicks to be
controlling precedent, and would find the giving of such an instruction to
be improper.
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[1] In Lottie, the instruction stated: "A person may be found guilty
of the crime of rape upon the uncorroborated testimony of the victim." 273
Ind. at 532, 406 N.E.2d at 636.