ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER JEFFREY A. MODISETT
Chief Public Defender Attorney General of Indiana
JANET L. PARSANKO
Deputy Attorney General
COURT OF APPEALS OF INDIANA
MICHAEL LEE KOCHERSPERGER, )
vs. ) No. 10A01-9902-CR-53
STATE OF INDIANA, )
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Daniel F. Donahue, Judge
Cause No. 10C01-9707-CF-49
March 24, 2000
OPINION - FOR PUBLICATION
Appellant-defendant Michael Lee Kochersperger (Kochersperger) appeals from his convictions for one count of
child molesting/deviate sexual conduct,
a Class B felony, and one count of child
a Class C felony.
We affirm in part and remand in part for further proceedings.
Kochersperger presents the following issues for our review:
(1) whether the trial court erred when it determined that the seven-year-old victim was
competent to testify at trial;
(2) whether the trial court erred when it denied his motion to suppress evidence
obtained through a polygraph examination and post-testing interrogation; and
(3) whether his convictions for child molesting/deviate sexual conduct and child molesting/fondling are barred
by the constitutional protections against double jeopardy.
Facts and Procedural History
Kochersperger lived with his wife, Rebecca Kochersperger (Rebecca), and their two daughters, T.K.
in Jeffersonville, Indiana. Kochersperger stayed at home with T.K. and
A.K. during the day while Rebecca worked. In early 1996, Kochersperger made
T.K. touch his penis with her hand while they were in an upstairs
room; during this same incident he also made T.K. lick and suck his
penis. T.K. subsequently told her mother that she had a secret Kochersperger
would not allow her to reveal. When T.K. ultimately disclosed the secret
to her mother, Rebecca notified Child Protective Services (CPS).
On March 24, 1997, a CPS caseworker interviewed T.K. regarding the incident. Finding
T.K.s statement to be credible, the caseworker forwarded the information on to Detective
Charles Thompson (Detective Thompson) of the Jeffersonville Police Department. Following a brief
telephone conversation, Kochersperger agreed to meet with Detective Thompson at his office on
April 11, 1997. During their meeting, Detective Thompson did not place Kochersperger
under arrest. However, he did review with Kochersperger an advice of rights
warnings and including an advisement of his right to counsel.
Kochersperger read and signed the advice of rights form. The meeting culminated
in Kochersperger signing an agreement with the prosecutor to undergo a polygraph examination;
the agreement stipulated that the results of the examination would be admissible in
any subsequent trial. A test date was set for May 6, 1997,
and Kochersperger appeared to take the polygraph examination as agreed.
Officer Gary Hall (Officer Hall), a polygraph operator with the Clarksville Police Department,
conducted the examination. Immediately prior to administering the examination, Officer Hall asked
Kochersperger whether he recalled reading and signing the stipulation on April 11, 1997;
Kochersperger responded that he did. Nevertheless, Officer Hall reviewed the document with
Kochersperger, along with a certificate of understanding regarding polygraph examinations, which Kochersperger also
Thereafter, Officer Hall conducted three separate polygraph examinations and concluded that Kochersperger had
been untruthful during all three of them. When Officer Hall confronted Kochersperger
with the results during a post-testing interrogation, Kochersperger admitted that T.K. had touched
his penis and that his penis had been in her mouth.
The State charged Kochersperger in relevant part as follows:
Between January 1996 and June 30, 1996, [Kochersperger] did submit to deviate sexual
conduct by having [T.K.], a child under fourteen (14) years of age, place
her mouth on his penis. . . .
Between January 1996 and June 30, 1996, [Kochersperger] did submit to any fondling
or touching by [T.K.], a child under fourteen (14) years of age, with
intent to arouse or to satisfy the sexual desires of either [T.K.] or
Prior to trial, Kochersperger moved to suppress the evidence obtained through his polygraph
examination and post-testing interrogation; the trial court denied his motion. A jury
trial was conducted on December 15 and 16, 1998, after which the jury
found Kochersperger guilty on Counts I and III. The trial court merged
Kocherspergers conviction under Count III with his conviction under Count I and imposed
an enhanced sentence of fifteen years on Count I only, with five years
Discussion and Decision
I. Competency of T.K. to Testify at Trial
Kochersperger first asserts that the trial court should not have permitted T.K., who
was seven years old at the time of trial, to testify. He
specifically challenges T.K.s competency to testify and argues that her responses to questions
posed during a previous competency hearing did not provide the trial court with
sufficient basis to infer that she understood the differences between telling a lie
and telling the truth or knew she was under a compulsion to tell
Kochersperger has waived consideration of this issue on appeal because he offered no
objection to the trial courts ruling at the conclusion of the competency hearing
and likewise failed to offer any objection when T.K. was called as a
witness at trial. Timely objection should be made to any improprieties that
may occur during the course of a trial so that the trial judge
may be informed and may take effective action to remedy the error or
grievance complained of.
Jackson v. State, 485 N.E.2d 144, 145 (Ind. Ct.
App. 1985) (quoting Morgan v. State, 243 Ind. 315, 320-21, 185 N.E.2d 15,
17-18 (1962)), trans. denied. A defendants failure to object to a childs
testimony acts as a waiver of any question of the competency of the
child as a witness. Jackson, 485 N.E.2d at 145 (child molesting case).
II. Admissibility of Polygraph Examination and Post-testing Interrogation
Kochersperger next challenges the trial courts denial of his motion to suppress evidence
obtained through the polygraph examination and post-testing interrogation. In particular, he makes
two contentions: (1) that his Sixth Amendment right to counsel was violated
because he was not represented at the time the examination was administered and
the interrogation was conducted; and (2) that his decision to sign the polygraph
stipulation was based on misrepresentations and improper inducement by police.
A. Right to Counsel
It is well settled in Indiana that absent a proper waiver or stipulation
by the defendant and prosecuting attorney, the results of a polygraph examination are
not competent evidence and are inadmissible in a criminal prosecution. Casada v.
State, 544 N.E.2d 189, 198 (Ind. Ct. App. 1989). In Owens v.
State, 176 Ind. App. 1, 3-4, 373 N.E.2d 913, 915 (1978), this court
first adopted from the Arizona Supreme Court four prerequisites that must be met
before the results of a polygraph examination can be admitted into evidence.
See Arizona v. Valdez, 371 P.2d 894, 900 (1962); see also Pavone v.
State, 273 Ind. 162, 402 N.E.2d 976 (1980) (approving Owens decision). The
first prerequisite, and the only one at issue here,
is that the [prosecuting]
attorney, defendant and his counsel . . . all sign a written stipulation
providing for defendants submission to the test and for the subsequent admission at
trial of the graphs and the examiners opinion thereon on behalf of either
defendant or the state. See Owens, 176 Ind. App. at 3, 373
N.E.2d at 915 (quoting Valdez, 371 P.2d at 900) (emphasis added).
Kochersperger makes much of the fact that his stipulation was not signed by
defense counsel because he had no representation at that time and argues that
the first prerequisite set forth in
Owens was therefore not met. However,
Kochersperger was fully advised of his right to counsel prior to executing the
stipulation on April 11, 1997, and waived such right by signing the advice
of rights form provided by Detective Thompson. Kochersperger chose to sign the
stipulation without counsel and does not contend on appeal that his waiver of
the right to counsel was involuntarily or unknowingly made. See Taylor v.
State, 409 N.E.2d 1246, 1249 (Ind. Ct. App. 1980) (holding that defendants lack
of counsel prior to polygraph examination did not vitiate the effect of the
stipulation; defendant was advised of right to counsel, chose to proceed without counsel,
and did not contend that waiver of his right to counsel was involuntarily
or unknowingly made). Thus, he cannot now complain that his right to
have counsel present when he signed the stipulation was impinged upon, nor can
he challenge the validity of the stipulation for lack of defense counsels signature.
See id. (holding that although an accused has a right to advice
and assistance of counsel, he also has right to forego such representation); see
also Owens, 176 Ind. App. at 3, 373 N.E.2d at 915 n.2 (noting
that defendants counsel would be required to sign the stipulation only when a
defendants right to counsel has already attached and where the defendant has not
waived such right to counsel).
Kochersperger further contends that his right to counsel under the Sixth Amendment was
violated when the polygraph examination and post-testing interrogation were conducted without the presence
of defense counsel. Specifically, he urges that such examinations and interrogations are
critical stages of a criminal proceeding that necessarily trigger a defendants Sixth Amendment
right to counsel.
The Sixth Amendment provides that an accused has a right to counsel at
any stage of the prosecution, formal or informal, in court or out, where
counsels absence might derogate from the accuseds right to a fair trial.
Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (quoting U.S. v. Wade,
388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967)).
Such a stage is considered a critical stage, that is, any stage in
a criminal proceeding where incrimination may occur or where the opportunity for effective
defense must be seized or be foregone. Greenlee v. State, 477 N.E.2d
917, 920 (Ind. Ct. App. 1985).
Greenlee, a panel of this court held that [t]he polygraph examination and
the post-test interrogation constituted a critical stage of the proceedings, triggering the Sixth
Amendment right to counsel. Id. (nevertheless affirming trial courts decision because Greenlee
had waived his right to counsel). This is not to say that
all such examinations and subsequent interrogations, without exception, are deemed critical stages of
a criminal proceeding. Rather, as another panel of this court clarified in
Callis v. State, 684 N.E.2d 233, 238 (Ind. Ct. App. 1997), we must
distinguish between pre- and post-arrest/indictment proceedings. See Little v. State, 475 N.E.2d
677, 683 (Ind. 1985) (observing that commencement of a prosecution is governed by
Ind. Code § 35-34-1-1, which provides that the filing of an information or
indictment begins the formal criminal process).
The polygraph examination and post-testing interrogation at issue in
Greenlee occurred during pre-trial
plea negotiations and thus after the initiation of criminal proceedings and the attachment
of Greenlees right to counsel. See Greenlee, 477 N.E.2d at 919; see
also Taylor, 409 N.E.2d at 1249 (noting that defendant was advised orally and
in writing of his right to counsel prior to taking a polygraph examination
conducted after defendants arraignment and release on bond, but that he had waived
this right). The examination and post-testing interview at issue in Callis, on
the other hand, occurred before the commencement of criminal proceedings and thus did
not constitute critical stages in a prosecution requiring the presence of counsel.
Callis, 684 N.E.2d at 238 (concluding that exclusion of defense attorney from polygraph
examination and post-testing interview did not violate defendants right to counsel); see also
Casada v. State, 544 N.E.2d at 199 (concluding that defendants lack of counsel
at signing of stipulation agreement and during polygraph examination conducted prior to arrest
did not derogate defendants right to a fair trial).
Here, Kochersperger had not been arrested, arraigned, or indicted at the time he
signed the agreement and stipulation,
see Casada, 544 N.E.2d at 198, nor had
he been so at the time the polygraph examination and post-testing interrogation were
conducted, see Callis, 684 N.E.2d at 238. As such, the examination and
interrogation did not constitute critical stages of a criminal proceeding because criminal proceedings
had not yet commenced; likewise, Kocherspergers right to counsel had not yet attached.
See id. at 238 and 238 n.8 (stating that [w]e find no
support for the assertion that the right to counsel can attach earlier than
the initiation of criminal proceedings and observing that event occurring prior to the
initiation of criminal proceedings may only be challenged on due process grounds, which
is independent of any right to counsel claim). Kochersperger was not deprived
of his Sixth Amendment right to counsel, and the trial court did not
err when it denied his motion to suppress on such grounds.
B. Validity of Stipulation
Kochersperger also contends that his decision to sign the polygraph stipulation was based
on misrepresentations and other improper inducements by police. The stipulation is a
contract between the State and Kochersperger. See Atkinson v. State, 581 N.E.2d
1247, 1250 (Ind. 1991). As such, contract principles control its use and
interpretation, Willey v. State, 712 N.E.2d 434, 440 (Ind. 1999), including the well-settled
precept that a contract must not be the product of misrepresentation. Park
100 Investors, Inc. v. Kartes, 650 N.E.2d 347, 349 (Ind. Ct. App. 1995)
(holding that where one employs misrepresentation to induce a partys obligation under a
contract, one cannot bind that party to the terms of the agreement).
Kochersperger claims that Detective Thompson gave him the impression, prior to signing the
stipulation, that if he passed [the polygraph examination] no charges would be filed,
and urges that it would seem obvious the opportunity to avoid criminal prosecution
would be a strong incentive for an individual to agree to take a
polygraph examination. He further alleges that Detective Thompson advised him that he
would not be allowed to see his children unless he agreed to take
the polygraph examination.
The circumstances under which Kochersperger signed the stipulation presented a question of fact
that was to be determined by the trial court and should not be
reweighed by this court.
See Atkinson, 581 N.E.2d at 1250. Detective
Thompson flatly denied that he ever told Kochersperger he would be prohibited from
seeing his children, and both he and Officer Hall testified that they reviewed
the stipulation with Kochersperger at length to insure his full comprehension of and
cooperation in submitting to the polygraph examination. Indeed, Kochersperger signed a certificate
of understanding which stated that he was under no force, coercion, or threats
of any type to submit to a polygraph examination, or to sign either
this Certificate or the attached . . . Stipulation. His appeal invites
us to reweigh the evidence and assess the credibility of the witnesses, tasks
not within our prerogative on appeal. Cf. Lewis v. State, 272 Ind.
365, 368, 397 N.E.2d 983, 985 (1979) (holding that admissibility of a confession
made after an aborted polygraph examination should be reviewed as a sufficiency matter
and that trial courts ruling as to the admissibility of a confession based
on conflicting evidence would not be disturbed). Accordingly, we find no error
in the trial courts denial of Kocherspergers motion to suppress evidence obtained through
the polygraph examination and post-testing interrogation.
III. Double Jeopardy
Finally, Kochersperger argues that his convictions for child molesting/deviate sexual conduct (Count I)
and child molesting/fondling (Count III) are barred by constitutional protections against double jeopardy
and specifically, the proscription against multiple punishments for the same offense. The
State counters that Kochersperger was not subjected to double jeopardy because the trial
court merged his two convictions and did not impose any sentence on Count
This court has held that a conviction even without a sentence is in
violation of double jeopardy and must be vacated.
Abron v. State, 591
N.E.2d 634, 636-37 (Ind. Ct. App. 1992). While the record reflects that the
trial court merged Count III with Count I and sentenced Kochersperger only on
Count I, it entered judgment of conviction on both counts. In so doing,
however, the trial court noted that Counts I and III . . .
arose out of the same factual situation. There was no time differentiation
at least in terms of the evidence presented, and so therefore I am
going to merge the Class C offense with the Class B offense.
It is clear from the trial courts sentencing remarks that it did not
intend to punish Kochersperger twice for the same offense in violation of double
jeopardy principles and attempted to avoid such a result through merger. Nevertheless,
the trial court should have vacated the conviction on Count III instead of
merely merging it into Count I. See Redman v. State, 679 N.E.2d
927, 932 (Ind. Ct. App. 1997) (concluding that vacating the lesser offense which
would have merged into the greater offense would have been the more appropriate
resolution). Accordingly, we remand to the trial court with instructions to vacate
Kocherspergers child molesting/fondling conviction under Count III. In all other respects, the
trial court is affirmed.
Affirmed in part and remanded in part with instructions.
NAJAM, J., and ROBB, J., concur.
Footnote: See Ind. Code § 35-42-4-3(a); see also Ind. Code § 35-41-1-9(1)
(defining deviate sexual conduct as an act involving the sex organ of one
person and the mouth or anus of another person).
See Ind. Code § 35-42-4-3(b) (fondling or touching or submitting to
T.K. has a birthdate of June 29, 1991. A.K. has
a birthdate of January 6, 1994.
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
Kochersperger claimed that T.K. had walked in on him while he
was in the shower, touched his penis, and asked if it was a
popsicle; when he said no, she put her mouth on it.
Footnote: Count II alleged that Kochersperger molested his other daughter, A.K. The
trial court granted Kocherspergers motion for directed verdict as to this count, and
it is not an issue on appeal.
Footnote: Kochersperger concedes that the other three prerequisites concerning the polygraph examiners
qualifications and testing conditions; defendants right to cross-examine the examiner at trial; and
instructions limiting the use of the examiners testimony, were met.
176 Ind. App. at 3-4, 373 N.E.2d at 915.
Kochersperger appears to claim that the issue of whether defense counsels
signature is required on a stipulation is unresolved. In so doing, he
points to our supreme courts decision in
Willey v. State, 712 N.E.2d 434,
439 n.3 (Ind. 1999) (This Courts opinion in Sanchez [v. State, 675 N.E.2d
306 (Ind. 1996)] does not specifically note the role of defense counsel in
the stipulation before it.). While Sanchez reiterated the four conditions for admitting
polygraph evidence first identified in Owens, 176 Ind. App. at 3-4, 373 N.E.2d
at 915, the question of whether defense counsels signature is required on a
stipulation is not unresolved. As noted above, defense counsels signature is necessary
only when a defendants right to counsel has already attached and where the
defendant has not waived such right to counsel. See Owens, 176 Ind.
App. at 3, 373 N.E.2d at 915 n.2.
Kochersperger claims that [o]pinions from our Court of Appeals reflect the
courts are not in agreement on this issue [of whether polygraph examinations and
post-testing interrogations constitute critical stages of a criminal proceeding]. We would not
characterize the decisions of
Callis, Casada, and Greenlee as being in conflict.
Rather, Callis merely clarified the general rule set forth in Greenlee and reiterated
in Casada, thereby limiting its application to post-arrest/indictment proceedings.
Our conclusion in this case, however, should not be interpreted to
mean that all polygraph examinations and post-testing interrogations may be conducted without defense
counsel present or without at least advising a suspect of his right to
have such representation. Rather, the Fifth and Fourteenth Amendments guarantee a suspect
the right to the presence and advice of counsel during custodial interrogation by
the police. Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995).
Clearly, a person who has been taken into custody or otherwise deprived of
his freedom of action in any significant way must, before being subjected to
interrogation by law enforcement officers, be advised of his rights to remain silent
and to the presence of an attorney and be warned that any statement
he makes may be used as evidence against him. Id. (quoting Miranda
v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694
(1966)). Statements elicited in violation of this rule are generally inadmissible in
a criminal trial. Id. Therefore, where a polygraph examination is conducted
while the suspect is in custody and where the police interrogate the suspect
regarding the test results, he must first be advised of his right to
counsel and be given the opportunity to forego such representation. See id;
see also Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 2650,
110 L.Ed.2d 528 (1990) (interrogation for purposes of Miranda analysis includes express questioning
and words or actions that, given the officers knowledge of any special susceptibilities
of the interviewee, the officer should know are reasonably likely to have the
force of a question on the person being questioned).
Here, we can discern no violation of due process rights under the Fifth
and Fourteenth Amendments requiring the suppression of evidence obtained through the polygraph examination
and post-testing interrogation. Indeed, Kochersperger acknowledges that he was not in custody
when he submitted to the polygraph examination and post-testing interrogation and concedes that
Miranda warnings were not required. Our review of the record confirms as much,
where Officer Hall testified that he advised Kochersperger he was not in custody,
that he was not under arrest, that he was free to leave, that
he was not required to take the polygraph examination, and that he [could]
get up and walk out of this door at any time[.]