ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
E. THOMAS KEMP STEVE CARTER
Richmond, Indiana Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
LARRY FLAKE, ) ) Appellant-Defendant, ) ) vs. ) No. 89A01-0111-CR-428 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION FOR PUBLICATION
Whether the trial court erred when it denied Flakes motion to continue the
Whether the trial court erred when it permitted the State to rehabilitate its
. . . .
THE COURT: And the fact that her testimony would be cumulative, theres another witness
that you intend to produce that can basically testify to the same matter,
and apparently Mr. Flake is going to testify as well. So her
testimony would be cumulative. That bears on my decision, plus this fact.
Mr. Flake has already asked for five continuances. This case is
over a year and a half old. It concerns allegations against a
child. Were at risk of having memories fade, appearances change. Im
concerned about getting this case to trial and getting it resolved.
Flake appeals the trial courts judgment. Additional facts are supplied as needed.
Our supreme court applied this fundamental principle within the realm of habitual offender
instructions in both Seay v. State, 698 N.E.2d 732 (Ind. 1998) and Parker
v. State, 698 N.E.2d 737 (Ind. 1998).
[E]ven where the jury finds the facts of the prerequisite prior felony conviction to be uncontroverted, the jury still has the unquestioned right to refuse to find the defendant to be a habitual offender of law.
Seay, 698 N.E.2d at 734. However, an instruction which minimizes the jurys
power of discretion in making a determination on habitual offender status does not
necessarily amount to reversible error, if accompanied by another instruction informing the jury
that it is the judge of the law and the facts. Parker,
698 N.E.2d at 742.
That the defendant:
Was convicted of the crime of child molesting, a class B felony for
which he was sentenced on or about September 9, 1980.
Was convicted of the crime of sexual battery, a class D felony, for
which he was sentenced on or about March 22, 1989, and that this
crime of sexual battery was committed after sentencing for the class B felony
on September 9, 1980.
Committed the crime of which he was convicted in this cause after March
If the State failed to prove each of these elements beyond a reasonable
doubt, you should find the defendant not to be a habitual offender, and
the form of your verdict should be:
We, the jury, find the defendant, Larry Flake, is not a habitual offender.
If the State did prove each of these elements beyond a reasonable doubt,
then the State has proven the defendant to be a habitual offender.
The proper form of a verdict finding the defendant to be a habitual
offender would be:
We, the jury, find the defendant, Larry Flake, was convicted of two (2)
prior unrelated felonies and is a habitual offender.
(App. 324.) (Emphasis added.) Flake argued that the above italicized language
created a presumption in violation of the case law contained in Seay and
Parker. We agree.
In Seay, our supreme court held that the trial court erred when it instructed the jury that it was the judge only of the facts, and that it was restricted to determining the facts only and not the law. Seay, 698 N.E.2d at 737. Nevertheless, our supreme court summarily adopted this Courts determination that the giving of the instruction did not amount to reversible error. Id.; See Seay v. State, 673 N.E.2d 475, 480 (Ind. Ct. App. 1996) (holding in part that the habitual offender instructions did not make it impossible for Seay to receive a fair trial.) In Parker, our supreme court vacated a habitual offender determination holding that the trial court erred when it instructed the jury that if it found that the State had proved the predicate felonies, then it should find defendant to be a habitual offender. Parker, 698 N.E.2d at 737. The habitual offender instruction presently before us is similarly misleading.
Here, however, the errant habitual offender instruction was accompanied by the following instruction:
Under the Constitution of the State of Indiana the jury is given the right to determine both the law and the facts. The instructions of the Court are your best source in determining the law.
(App. 322.) This instruction clearly expressed the dictates of Article I, §
19, of the Indiana Constitution. Accordingly, the entire habitual offender jury charge
did not prevent the jury from exercising its constitutional discretion and no reversible
error took place.
(1) Prior statement by witness. 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; or (B) consistent with the declarant's testimony, offered to rebut an
express or implied charge against the declarant of recent fabrication or improper influence
or motive, and made before the motive to fabricate arose; or (C)
one of identification of a person made shortly after perceiving the person .
However, [b]ecause Rule 801(d) speaks only to the admission of prior consistent statements
for their substance, we must look to pre-rule cases for the relevant common
law on the rehabilitative use of these statements. Moreland v. State, 701
N.E.2d 288, 292 (Ind. Ct. App. 1998). Many pre-rules cases stated that
prior consistent statements were admissible to rehabilitate witnesses. Id.
A[A.B.]: I did.
Q: Okay. Tell the jury what you told him about that.
A: Told him I was a virgin and I was only fifteen.
. . . .
Q: Okay, when did you tell him?
A: When he started when he started doing he was doing.
(App. 407.) (Emphasis added.) On cross-examination, Flakes defense attorney sought to
impeach A.B. by referencing her responses in a statement given to police a
week after the alleged misconduct.
Q: [Detective Raver] asked you, Did you tell him your age?, is that correct?
Q: And you told Detective Raver, Yeah, cause he asked me and I told
him I was fifteen. Do you remember that?
Q: And Detective Raver asked you, Well, when did he say say that?
When did he ask you that? Do you remember your response?
Q: When he got done, while he was unlocking the door. He asked
me and I told him I was fifteen. Is that correct?
(App. 410-11.) (Emphasis added.) Thereafter, over Flakes objection, the State was
permitted to rehabilitate A.B.s testimony on re-direct, referencing her testimony from a previous
Q: Question, . . . when did [the defendant ask you how old you were] . . .?
A: Before when we were getting when he was getting on top of
me thats when he asked me how old I was.
The above scenario repeated itself with A.B.s testimony at trial that Flake had lifted her shirt and touched her breast. On direct examination, A.B. testified as follows:
Q: Tell the jury what [Flake] did to you after he leaned the seat back.
A: He had pulled down my shorts and lifted up my shirt and was
rubbing on one of my breasts . . .
(App. 406.) On cross-examination, A.B. stated:
Q: [In your deposition] I asked you if you were wearing a bra, your response?
Q: I asked . . . if he pulled up your bra. And
(App. 408.) Again, the State was permitted, over Flakes objection, to introduce
prior consistent statements. This time the prior consistent statements came from a
previous statement to police.
Q: [A.B.], [Detective] Raver asked you again, Tell me what he did with your clothes., and what was your answer?
A: He pulled my shorts down and pulled up my top, lifted one side
of my bra and started rubbing on on me.
In Moreland, the trial court allowed the State to rehabilitate its witness, an alleged child molestation victim, following a cross-examination that created numerous inconsistencies between the victims trial testimony and deposition testimony. In its effort to rehabilitate its witness, the State was permitted to call to the stand a social worker and police detective. These witnesses testified as to what the victim told them had occurred between her and the defendant. On appeal, we held that since the defenses theory was that the victim had been lying the entire time there was no recent fabrication, and therefore meeting the rigors of Indiana Rule of Evidence 801(d)(1) was not necessary to give rise to admissible evidence. See Moreland, 701 N.E.2d at 292; Evid.R. 801(d)(1)(B). Rather, the States efforts were better characterized as the introduction of prior consistent statements to rehabilitate a witness.
In reaching our holding in Moreland, we relied on such case law as Patterson v. State, 563 N.E.2d 653 (Ind. Ct. App. 1990), stating:
[I]n Patterson . . . , the defendant offered evidence that the child victim in a molestation case had recanted her accusation against him. The State then introduced the victim's statements to her mother and a police detective to show the consistency of the victim's accusations against the defendant. Noting that testimony which rehabilitates a witness who has made prior inconsistent statements may be relevant and admissible, we held that the statements were properly admitted for rehabilitative purposes.
Moreland, 701 N.E.2d at 292. Here, the defenses theory from the beginning
was that A.B. willingly went with Flake and informed him of her age
after engaging in sexual relations. Thus, as in Moreland, there was no
recent fabrication. Moreover, this case is akin to the testimonial fact pattern
of such pre-evidentiary rules cases as Patterson, wherein the additional testimony was allowed.
As such, Indiana Rule of Evidence 801(d)(1) need not have been applied
and the trial court did not abuse its discretion by permitting the rehabilitation
SHARPNACK, J., and DARDEN, J., concur.