Appeal from the Marion Superior Court, No. 49G02-1210-FA-68981. The Honorable Marc T. Rothenberg, Judge.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1312-CR-614.
ATTORNEYS FOR APPELLANT: Valerie K. Boots, Ruth A. Johnson, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Michael G. Worden, Chandra K. Hein, Deputy Attorneys General, Indianapolis, Indiana.
Dickson and Massa, J.J., concur. Rucker, J., dissents with separate opinion in which Rush, C.J., joins.
Following a jury trial, Marq Hall was convicted of class A felony child molesting. On appeal, he claimed that the trial court erred in denying his motion to compel the victim's mother to answer a deposition question about an incident in the victim's past and in excluding from evidence a phone conversation with the victim's mother in which they discussed the incident. Finding that the trial court abused its discretion in both instances, the Court of Appeals reversed Hall's conviction and remanded for a new trial. However, our review of the evidence, construed in a light most favorable to the conviction, leads us to conclude that the two errors, even if considered violations of Hall's Sixth Amendment right to confront witnesses against him, were harmless beyond a reasonable doubt. We accordingly affirm Hall's conviction.
Facts and Procedural History
In September of 2012, Marq Hall was living in an Indianapolis apartment with his girlfriend A.D. and her twelve-year-old daughter M.T. Hall and A.D. had very recently decided to end their relationship after a few months together. On September 19th, Hall and A.D. were in the process of splitting up, but Hall was still residing in A.D.'s apartment. That afternoon, he was home alone with M.T. Hall approached M.T. from behind and rubbed his penis on her buttocks, which were covered by her gym shorts, for a couple of minutes. He then pulled down her shorts and underwear, pinned her to a bed, and forced her to have sexual intercourse with him.
When the ordeal was over, M.T. felt a wet spot on her leg. She promptly wiped the spot with toilet paper.
Minutes after the rape, Hall took a shower. While he was in the shower, M.T. put the same clothes she had been wearing back on and fled the apartment. Feeling very emotional and unsure of what to do next, M.T. headed to the apartment complex's leasing office, where she asked property manager Sonja Cumberlander if she could use the phone. Cumberlander observed that the girl appeared " very excited" and nervous. (Tr. at 119.)
After arriving at the office, M.T. immediately phoned a friend of her mother's and reported the rape and molestation. When A.D.'s friend told her that Hall had " [done] something to M.T.," (Tr. at 154), A.D. immediately left work and, as she drove to her apartment, called Hall. Hall denied having done anything to M.T. but told A.D. that he had been " asleep in the bed and he woke up and M.T. had her arm around him touching him." (Tr. at 155.) When A.D. arrived at the apartment complex, Hall saw A.D. but drove right past her and out of the complex without stopping. As M.T. observed Hall drive by the building, she exclaimed, " Oh my God, oh my God, there he is." (Tr. at 120.)
A.D. entered the office and observed her daughter, who appeared " hysterical" and was crying and unable to speak. (Tr. at 158.) She would later testify that " I've never seen her that upset." (Tr. at 159.) After M.T. told her that Hall had raped her, A.D. immediately took M.T. to the hospital, where sexual assault nurse Caroline Fisher observed three fresh lacerations to the girl's vaginal area that were consistent with penetration. Though subsequent testing of samples from the examination did not reveal Hall's DNA on M.T.'s body or underwear, a trace amount of Hall's semen was found on the crotch of the shorts M.T. was wearing during the incident.
The State charged Hall with class A felony child molesting and class C felony child molesting. After charges were filed, Hall remained a fugitive for three months, at one point fleeing the state, before surrendering to authorities.
Once discovery began, Hall conducted a deposition of A.D. He asked A.D. to elaborate on a previous statement she had made about M.T., specifically about " what happened before." (App. at 113.) This was seemingly a reference to an incident that occurred when M.T. was nine years old and living in Kentucky with A.D. One of A.D.'s friends had asked M.T. if she had ever been touched, and M.T. responded that she had. The Kentucky equivalent of the Department of Child Services then interviewed the girl. During the interview, M.T. revealed that the touching had been consensual with a boy her age. Nothing more came of the incident.
In response to Hall's deposition question, A.D. stated, " Well, that really don't have anything to do with this, so I won't answer that question because that's already been handled. No charges were filed because nothing took place. That's really all you need to know on that." (App. at 113.) Hall then asked, " What had happened?" and A.D. repeated that " I just told you that that's really none of your business. That's something that happened prior with another child. There was no charges filed or anything, so that has nothing to do with this." (App. at 113.)
Hall then certified the question and filed a motion to compel discovery in which he asked the trial court to order A.D. to answer the question, as he believed " the information requested relates to evidence that the alleged victim may have previously accused another and then recanted, which by itself is highly relevant in a case involving an accusation of improper sexual conduct." (App. at 109-110.) A few months later he renewed his motion, which the trial court denied.
The day Hall's jury trial began, the trial court granted the State's motion in limine as to, among other things, " [a]ny questions, testimony, evidence, argument, or comments regarding prior sexual conduct of any State's witnesses, including but not limited to [M.T.]," pursuant to Indiana Evidence Rule 412. (App. at 149-50.) Also known as the Rape Shield Rule, Rule 412 prohibits, subject to listed exceptions like a prior false accusation, the admission into evidence in a civil or criminal proceeding involving alleged sexual misconduct evidence offered to prove a victim's prior sexual behavior or sexual predisposition.
During trial and outside the presence of the jury, Hall made an offer of proof that he intended to inquire into what he characterized as a prior false accusation by M.T.--the Kentucky incident--as an exception to the Rape Shield Rule. Finding that M.T.'s report of consensual touching " wasn't a false allegation," the trial court excluded the proffered evidence. (Tr. at 477, 484-85.) Thus, during the testimony of M.T. and A.D., the Kentucky incident was off limits as inadmissible evidence, but the topic would soon return.
On the second day of Hall's trial, the State called A.D. to the stand. After having A.D. recount the events of September 19th, the prosecutor asked her about a phone call with Hall that occurred shortly after M.T.'s rape and molestation:
Q: [W]hat did Marq say to you?
A: He wanted to know information about M.T. that could clear his name.
Q: How do you mean?
A: He wanted to know about anything in M.T.'s past, medical records, anything that he could use to get out of his case.
(Tr. at 163-64.)
Then on cross examination of A.D., the following exchange occurred between A.D. and Hall's counsel:
Q: And when you were asked about a conversation you had with Mr. Hall when he wanted you to help clear his name, do you recall talking about that? Did you actually give him information?
A: Did I physically give him anything? No.
Q: No, did you--because you were having a conversation. Did you give him any information?
(Tr. at 196-97.) At this time, the prosecutor objected, contending among other things that A.D.'s answer would violate the motion in limine. The trial court then instructed A.D. to answer either yes or no, and Hall's counsel repeated the question. A.D. responded:
A: His request, no. I didn't give him any information.
. . .
Q: Is it your testimony here today that that conversation where he wanted to clear his name was one and done, he made a request and you gave him no information and that was the end of the conversation?
A: He asked me questions. He . . . basically said give me information . . .
(Tr. at 199) (emphasis added).
Once more, the prosecutor voiced his concern that A.D. would run afoul of the order in limine. The trial court then dismissed the jury from the courtroom, and the parties further discussed the risk that A.D. would, in answering the question, violate the order in limine when discussing her conversation with Hall. Upon the trial court's request, a recording of the phone call was played. The approximately four-minute-long recording contained the following relevant excerpt:
Hall: I'm sittin' here talkin' to my peoples and stuff, and I'm tryin' to, like write everything down that you was sayin' to get my little portfolio strong. And I mean, so give me back all, all of the evidence for, against [M.T.] to make her little statements uncredible. All that s**t that you was tellin' me about that happened in Kentucky, and all the other little s**t. Talk to me, baby, so I can write this s**t down.
A.D.: . . . [An attorney] was sayin' that you know basically a rape case is . . . word against word even if there's no evidence. So what you gotta do is like we had already talked about provin' somebody was [unintelligible] reliable. That's what we need to focus on. So gosh, I don't even know where to start.
. . .
Hall: Alright, so tell me about this stuff that happened in Kentucky?
A.D.: When she said some boys like touched her?
Hall: She said some boy did something to her.
A.D.: Yeah, and it came, found out that it was like a mutual thing. They were ...