ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR. JEFFREY A. MODISETT
Merrillville, Indiana Attorney General of Indiana
LARRY W. ROGERS TERESA DASHIELL GILLER
Valparaiso, Indiana Deputy Attorney General
COURT OF APPEALS OF INDIANA
TIMOTHY MCCARTHY, JR., )
vs. ) No. 37A04-9903-CR-108
STATE OF INDIANA, )
APPEAL FROM THE JASPER SUPERIOR COURT
The Honorable J. Philip McGraw, Judge
Cause No. 37D01-9711-CF-389
March 30, 2000
OPINION - FOR PUBLICATION
Timothy McCarthy was found guilty by a jury of one count of sexual
misconduct with a minor as a Class B felony and one count of
sexual misconduct with a minor as a Class C felony. The trial
court ordered an enhanced sentence of thirteen years for the Class B felony
and an enhanced sentence of five years for the Class C felony, which
sentences were ordered to be served consecutively. McCarthy appeals his convictions and
resulting sentence. We reverse.
McCarthy raises five issues for our review, of which we find the following
dispositive: whether the trial court properly limited McCarthys cross-examination of an alleged
victims mother and excluded evidence that she had filed a notice of
tort claim against the school corporation which employed McCarthy and possibly intended to
file a lawsuit against McCarthy personally.
Facts and Procedural History
The facts most favorable to the verdict reveal that in the fall of
1997, McCarthy was a music teacher and band director at Kankakee Valley High
School. On November 4, 1997, McCarthy told his fifteen year old student
assistant, M.T., that he needed to speak with her and arranged to meet
her in the faculty bathroom. Once in the bathroom, McCarthy locked the
door, kissed M.T., exposed and touched her breasts, exposed himself, and attempted to
make her touch his penis. M.T. refused and McCarthy unlocked the door
and let her out of the bathroom.
Also on November 4, 1997, McCarthy and a fifteen year old student, K.G.,
engaged in a game of strip perdiddle while McCarthy drove K.G. home.
Perdiddle is usually played by spotting cars with one headlight out. Because
it was daylight, however, they played perdiddle with white mailboxes instead of headlights:
the first person to spot a white mailbox and say perdiddle told
the other player to remove a specific article of clothing. When both
McCarthy and K.G. were naked, McCarthy had K.G. stroke his penis, he touched
her breasts and penetrated her vagina with his finger, and he attempted intercourse
but was unable to complete the act.
McCarthy was charged with two counts of sexual misconduct with a minor by
information filed November 14, 1997. A jury trial was held in June
of 1998, which ended in a mistrial due to the jurys inability to
reach a unanimous verdict. A new trial was scheduled for November of
At the November re-trial, a jury found McCarthy guilty of both counts of
sexual misconduct with a minor. McCarthy was subsequently sentenced to an enhanced
sentence of thirteen years for the Class B felony and five years for
the Class C felony, which sentences were ordered to be served consecutively.
Additional facts will be provided as necessary.
Discussion and Decision
Limitation of Cross-Examination
McCarthy contends that the trial court erred in limiting his cross-examination of M.T.s
mother regarding the fact that she had filed a notice of tort claim
against the school corporation for McCarthys alleged actions and possibly intended to file
a lawsuit against McCarthy personally and therefore had a potential financial interest in
the outcome of this case.
A. Standard of Review
A defendants Sixth Amendment right of confrontation assures him the opportunity to conduct
an effective cross-examination of the States witnesses against him in order to test
Thornton v. State, 712 N.E.2d 960, 963 (Ind. 1999).
This right is subject to reasonable limitations placed upon the cross-examination at the
discretion of the trial judge. Id. However, the trial courts exercise
of its discretion in determining the permissible scope of cross-examination to test the
credibility of a witness must be consistent with due process. McIntyre v.
State, 460 N.E.2d 162, 165-66 (Ind. Ct. App. 1984). Thus,
[w]here the record reflects a curtailment of a requested line of bias cross-examination
in limine, so that the jury is unable properly to perform its fact-finding
function in inferring bias from the testimony as a whole, we will assess
cross-examination errors by a per se error standard. . . . If, however,
the trial court has permitted some cross-examination so that the jury has sufficient
information from which to infer bias (should it so choose), this court will
evaluate error by application of the harmless constitutional error test . . .
Haeger v. State, 181 Ind. App. 5, 390 N.E.2d 239, 241 (1979) (quoting
Springer v. United States, 388 A.2d 846, 856 (D.C. 1978)).
B. Jodi Coopers Testimony
At trial, M.T.s mother, Jodi Cooper, testified. McCarthys counsel sought to inquire
on cross-examination into the fact that Cooper had filed a notice of tort
claim against the school corporation and possibly intended to file a lawsuit against
McCarthy personally based upon the same alleged actions for which McCarthy was on
trial. Counsel asked Cooper, how much money are you going to make,
or do you seek to get because of [this]? R. 1403.
The State objected, and the trial court sustained the objection. Counsel then
made an offer to prove, during which he stated that if this witness
were allowed to answer this question, she would indicated [sic] that a Notice
of Tort Claim has been filed against the Kankakee Valley School Corporation seeking
damages from the school corporation and perhaps Mr. McCarthy personally . . .
. R. 1403. The trial court stated that it would only
reconsider its ruling if McCarthy can show a substantial deviation from her prior
testimony that might have been shaded because shes trying to aide [sic] her
lawsuit . . . . R. 1404. The trial court also
[w]hat has happened subsequent, as you well know, either you meet the statutory
guidelines for a tort claim against an administrative agency or you lose it.
. . . [W]hether or not she sues or whether or not
shes filed a complaint is not an issue at this point. . .
. Because its the same as raising your constitutional right to remain
silent. You cant use someones raising their legal having done something
to protect their legal rights against them. It seems to be the
R. 1404-05.C. Evidence of Bias or Financial Motive
McCarthy contends that the trial court erred in limiting his cross-examination of Ms.
Cooper regarding her financial interest in the outcome of this criminal prosecution. Any
fact tending to impair the credibility of a witness by showing his interest
is a material matter regarding which cross-examination is a right and not a
mere privilege, and a denial of cross-examination upon such a material matter is
Acker v. State, 239 Ind. 466, 158 N.E.2d 790, 791
(1959). However, an actual infringement of cross-examination must be shown and the
defendant must also show how the forbidden subject related to the credibility of
the witness. Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475, 479
(1978). A witness credibility may be affected by financial considerations and thus,
such considerations may be a proper subject for cross-examination. Domangue v. State,
654 N.E.2d 1, 3 (Ind. Ct. App. 1995). If a witness in
a criminal trial has a financial motive for testifying in a certain fashion,
the jury should hear about those matters as they are relevant evidence of
Kleinrichert v. State, 530 N.E.2d 321 (Ind. Ct. App. 1988), trans. denied,
this court reversed the defendants conviction for possession of cocaine and held that
the jury was not able to properly perform its fact finding function because
relevant evidence was excluded by the trial court. Id. at 323.
The relevant evidence was evidence that the defendant had filed a tort claim
notice against the county sheriffs department for false arrest and his stated intention
to sue Detective Kitch personally. The trial court excluded all evidence of
pending or contemplated lawsuits and evidence of animosity between the defendant and Kitch.
This court held that such evidence may have demonstrated bias, prejudice, and
interest in the outcome of the case on the part of Kitch and
may have affected the jurys evaluation of Kitchs credibility. This was especially
important because there was a conflict in the testimony of Kitch and the
confidential informant. Thus, we applied the per se error standard and reversed
the defendants conviction.
Pfefferkorn v. State, 413 N.E.2d 1088 (Ind. Ct. App. 1980), this
court reversed convictions of theft and burglary because the trial court improperly restricted
in limine cross-examination regarding possible bias or prejudice of the investigating officer.
Id. at 1090. The defendant urged that evidence that members of his
family had been involved in an automobile accident with the county sheriffs department
and had instituted a civil lawsuit against the department might show a bias
or hostility against him and his family which would be a motive to
overzealously investigate him. This court agreed, holding that the witness, the investigating
officer, was crucial and that the defendant was wholly precluded from pursuing his
line of questioning and presenting this evidence to the jury. Thus, application
of the per se error rule was appropriate, and the convictions were reversed.
In this case, too, we have a total curtailment of cross-examination on an
issue which could expose potential bias of the witness due to her financial
interest in the outcome of the criminal case. Neither of the two
reasons given by the trial court for curtailing the cross-examination on this issue
justify such a curtailment. The State conceded at oral argument that in
such situations in the past, the per se rule has been properly applied,
but urges that in this case, we either disapprove the line of cases
Haeger and decline to apply the per se rule or distinguish this
case on its facts from the Haeger line of cases and apply the
harmless error rule instead. We decline to do so.
The only point on which this case is factually distinguishable from
Pfefferkorn is that in both of those cases, the witness whose bias was
not allowed to be inquired into was the prosecuting witness, and here, Ms.
Cooper had no first-hand knowledge of the events giving rise to the charges
against McCarthy. Nonetheless, the State chose to call Ms. Cooper as a
witness in its case-in-chief seeking what benefit it could gain from her testimony,
but the defense was not then allowed to offset that benefit by evidence
which properly could have detracted from that testimony. The jury was only
allowed to hear from the potentially sympathetic mother of an alleged victim, not
the potential recipient of a financial settlement or award. On the record
before us, we find a curtailment of a requested and proper line of
bias cross-examination leaving the jury unable to properly perform its function of determining
whether that bias affected the testimony as a whole. Thus, we hold
this constitutes reversible error, and we grant McCarthy a new trial.
BROOK, J., and NAJAM, J., concur.
Although we do not address the sentencing issue raised by McCarthy
due to the dispositive nature of the other issues raised, we note that
to the extent the trial court relied on generalities regarding sex offenders in
making its sentencing determination, this would be error.
See Bluck v. State,
716 N.E.2d 507, 512 (Ind. Ct. App. 1999) (There is literature indicating that
typical sex offenders cannot be rehabilitated until they admit their behavior. However,
when sentencing a particular defendant, profile evidence regarding the average child molester may
or may not be probative. While [the defendants] character is at issue,
the court must base its sentencing decision on factors attributable specifically to him
rather than on his identification with a general class or category of offenders.)
(citation omitted). Moreover, the type of conduct with which the State charges
the defendant is what determines the severity of the crime and the sentencing
parameters. Thus, the nature of the crime is already taken into account
by the legislature in the sentencing statutes.
Oral argument was heard in this case on March 2, 2000,
at Wabash College. We extend our appreciation to the students, faculty, and
administration of the college for their interest and hospitality.
Footnote: McCarthy also raised the issue of whether the trial court erred in
admitting evidence of McCarthys alleged romantic interest in the mother of one of
the victims. McCarthy made a persuasive case at oral argument that this
evidence was outside the scope of permissible 404(b) evidence. However, although McCarthy
filed a pre-trial motion
in limine to exclude such evidence, he did not
object to this testimony during the trial. See R. 1159-61, 1377-83.
In order to preserve error in the overruling of a pre-trial motion in
limine, the appealing party must have objected to the admission of the evidence
at the time it was offered or the argument is waived. Robinson
v. State, 720 N.E.2d 1269, 1271 (Ind. Ct. App. 1999).
We acknowledge that McCarthy was convicted of two counts of sexual
misconduct one count for alleged misconduct related to M.T. and the other
for alleged misconduct related to K.G. Although the curtailed cross-examination which we
find to be reversible error herein related most directly to M.T., as it
was her mothers testimony which was affected, the two cases are integrally related
not only in factual terms, but also in terms of the way in
which they were tried. Therefore, it would be pure speculation on our
part to say that the excluded evidence affected only one case. Accordingly,
we reverse both convictions.