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02/17/88 JOHN K. DUFFITT v. STATE INDIANA

Filed: February 17, 1988.

JOHN K. DUFFITT, APPELLANT (DEFENDANT),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF).



Appeal from the Madison Circuit Court, The Honorable Fredrick R. Spencer, Judge, Cause Nos. 7-84-CR-79 and 8-84-CR-80

Buchanan, J., Conover, J. Concurs. Sullivan, J. Concurs With Separate Opinion.

Author: Buchanan

BUCHANAN, J.

CASE SUMMARY

Appellant-defendant John K. Duffitt (Duffitt) appeals his jury convictions on six counts of child molesting, class C felonies,[Footnote 1] one count of child molesting, a class B felony,[Footnote 2] and one count of attempted child molesting, a class B felony,[Footnote 3] claiming the trial court's actions and comments denied him a fair trial, that the trial court erred in denying his motion to be examined by a psychiatrist and for psychiatric examinations of the victims, that there was insufficient evidence to sustain the convictions, that he was denied a fair trial due to impropriety on the part of a deputy prosecutor, and that the trial court erred in imposing consecutive sentences.

We affirm.

FACTS

The pertinent facts demonstrate that in May of 1982, L.R., nine years old, and her sister S.R., eleven years old, were acquaintances of Duffitt's children, and were spending the night at Duffitt's house in Elwood, Indiana. That night, Duffitt called L.R. into his bedroom, where he was lying on his bed wearing no clothes. Duffitt called L.R. to him, unbuttoned her pants, got on top of her, and attempted to engage in sexual intercourse. Later the same night, Duffitt also called S.R. to his bedroom, pulled her to his bed, got on top of her, and had sexual intercourse.

In June of 1982, S.R. was again at Duffitt's home, when Duffitt called her into the bathroom and forced her to touch his penis.

In April, 1984, Duffitt drove eleven-year-old P.M., her sister, and his daughters to a skating rink in Alexandria, Indiana. On the way home from the skating rink, he allowed P.M. to "drive" the car, by having her sit on his lap. As she was sitting on his lap, Duffitt undid her pants, and put his hands on her "privacy", down the front of her pants.

The next month, Duffitt was driving P.M. and some others to a Dairy Queen in Elwood, Indiana, and again P.M. sat on his lap. Duffitt put his hands down the front of her pants, and told her if she would not kiss him that he would not drive her home. At that time, Duffitt's passengers departed from the car and later reported him to the police.

In June, 1984, Duffitt drove J.B., ten years old, and her twin sister, D.B., their babysitter, and three of J.B.'s and D.B.'s sisters to a fair in Anderson, Indiana. On the way home from the fair, J.B. was sitting on Duffitt's lap when Duffitt placed his hands down her pants and moved them around. Later on that trip, D.B. was sitting by Duffitt, and he put his arms around her and then put his hand down the back of her pants.

The jury found Duffitt guilty of seven counts of child molesting, and one count of attempted child molesting. On June 10, 1985, the trial court sentenced Duffitt to five years on each of the class C child molesting convictions, to ten years on the class B child molesting conviction, and to ten years on the attempted class B child molesting conviction. Counts one, two, five and seven were to be served consecutively and to run concurrently with counts three, four, six and eight, which were to run consecutively.

ISSUES

Duffitt appeals, raising seven issues, which we restate as:

1. Was Duffitt denied a fair trial because the trial court, before trial, hung children's pictures and posters throughout the courtroom?

2. Was Duffitt denied a fair trial due to the trial court's comments during trial?

3. Did the trial court err in denying Duffitt's motion to be examined by a psychiatrist?

4. Did the trial court err in denying Duffitt's motion for psychiatric examinations of the victims?

5. Was there sufficient probative evidence to support the convictions?

6. Was Duffitt denied a fair trial due to alleged impropriety on the part of a deputy prosecutor?

7. Did the trial court err in ordering an aggravated sentence?

ISSUE ONE -- Was Duffitt denied a fair trial because the trial court hung children's pictures and posters throughout the courtroom?

PARTIES' CONTENTIONS -- Duffitt urges that the trial court's conduct in hanging the pictures denied him a fair trial because the pictures caused the jury to react in a parental fashion toward the victims and because the conduct undermined his presumption of innocence.

The response by the State is that the trial court acted within its discretion and was only attempting to put the witnesses at ease while they testfied. The State adds that any possible error was cured by the trial court's final instruction.

Conclusion -- No reversible error occurred by the trial court's hanging of children's pictures and posters in the courtroom.

Before trial, the trial court placed children's posters and paintings throughout the courtroom, as shown in Duffitt's exhibits. Record at 435-441. The trial court explained that this decorative effect was intended to lessen the anxiety of some of the young witnesses testifying in the case. Record at 177, 776.

A trial court has wide discretion in managing the conduct of a trial, and we will not disturb the trial court's discretion unless a defendant demonstrates he was so prejudiced by the conduct that an abuse of discretion is manifest. Green v. State (1984), Ind., 461 N.E.2d 108. It is the trial court's responsibility to conduct the trial in a manner which facilitates the ascertainment of truth, insures fairness, and maintains economy of time and effort. See Armstrong v. State (1986), Ind., 499 N.E.2d 189; Mahla v. State (1986), Ind., 496 N.E.2d 568.

It appears from the record that the reason for hanging the posters and pictures was to create an atmosphere familiar to young children which might encourage them to testify more freely. See record at 177-776. Although this procedure was somewhat unusual, the drawings were not referred to in any way by the trial Judge or the prosecutor in the presence of the jury during the trial. The trial court did grant a motion by Duffitt to remove the pictures when the older witnesses were testifying.

Courts in other jurisdictions have also recognized the trial court's discretion in matters which, although unusual, are intended to place a witness at ease. See State v. Bolton (1981), La., 408 So.2d 250 (within trial court's discretion to allow grandfather of witness to stand by him while he testified); Brooks v. State (1975), 24 Md.App. 334, 330 A.2d 670 (no abuse of discretion in trial court's allowing clergy to sit by witness while she testified regarding details of rape); People v. Joseph (1983), 89 A.D.2d 825, 465 N.Y.S.2d 915 (within trial court's discretion to exclude public from courtroom because victim-witness was tense and uncomfortable); Mosby v. State (1985), Tex.Ct.App., 703 S.W.2d 714 (neither exclusion of general public from courtroom during eleven-year-old's testimony in order to protect witness from embarrassment or intimidation nor allowing victim to sit in guardian ad litem's lap in absence of jury constituted prejudicial error).

Unusual courtroom decorum does not necessarily require a new trial. In People v. Knapp (1985), 113 A.D.2d 154, 495 N.Y.S.2d 985, cert. denied 107 S.Ct. 158, the defendant's trial was held in the church hall of the Roman Catholic Church which was decorated with religious pictures and artifacts, including a crucifix. The court held that the defendant was not denied a fair trial as the effect of the religious environment on the jurors was uncertain and because the jury was as likely to be honest and fair as it was to be prejudiced. Id. Similarly, beginning a trial with a prayer regarding the lawlessness of society does not necessarily produce an unfair trial. See U.S. v. Walker (4th Cir. 1982), 696 F.2d 277, cert. denied, 464 U.S. 891. In People v. Creda (1967), 254 Cal.App.2d 16, 61 Cal. Rptr. 784, the court concluded that the trial court's direction to a witness to say "hello" to her husband after she testified was not reversible error, as the jury was still able to fairly carry out its duty.

These cases lend support for our Conclusion that any error in the trial court's decision to decorate the courtroom does not necessarily call for a new trial.

Duffitt's authority is not persuasive. In Murry v. State (1917), 19 Ariz. 49, 165 P. 315, the trial court allowed a blackboard to stand in the courtroom which showed the court's calendar for the day, indicating to the jury that the defendant, charged with illegally transporting liquor, was also charged in three other cases. The trial Judge also allowed twenty cases of whiskey to be placed in the courtroom, although the character and existence of the whiskey was not at issue. The reviewing court found these exhibits clearly prejudicial to the defendant, although not sufficient to mandate reversal. In State v. Gevrez (1944), 61 Ariz. 296, 148 P.2d 829, reversible error occurred when the deceased's mother was allowed to sit within four to five feet of the jury, "weeping bitterly" throughout the trial and occasionally standing to make emotional outbursts. In contrast ...


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