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State v. McKinney

Court of Appeals of Indiana

August 9, 2017

State of Indiana, Appellant-Plaintiff,
v.
Delbert McKinney, Appellee-Defendant.

         Appeal from the Posey Circuit Court The Honorable James M. Redwine, Judge Trial Court Cause No. 65C01-1602-F1-72.

          ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana.

          ATTORNEY FOR APPELLEE William W. Gooden Mt. Vernon, Indiana.

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Plaintiff, State of Indiana (State), appeals the trial court's denial of its motion to exclude Appellee-Defendant, Delbert McKinney (McKinney), during the victim's deposition; and its motion to have the victim testify via closed circuit television at McKinney's trial.

         [¶2] We reverse and remand.

         ISSUES

         [¶3] The State presents two issues on interlocutory appeal, which we restate as follows:

(1)Whether the trial court abused its discretion in denying the State's motion to exclude McKinney's presence during the victim's deposition; and
(2)Whether the trial court abused its discretion in denying the State's motion to have the victim testify via closed circuit television during McKinney's trial.

         FACTS AND PROCEDURAL HISTORY

         [¶4] On February 8, 2016, the State filed an Information, charging McKinney with child molesting, a Class A felony, Ind. Code § 35-42-4-3 (a)(1); child molesting, a Class C felony, I.C. § 35-42-4-3(b); child molesting, a Level 1 felony, I.C. § 35-42-4-3(a); and child molesting, a Level 4 felony, I.C. § 35-42-4-3(b). The alleged victim in McKinney's child molesting offenses was K.N., born in February of 2008.

         [¶5] On September 6, 2016, the State filed two motions: a motion to exclude McKinney's presence during K.N.'s deposition; and a motion to have K.N. testify via closed circuit television during McKinney's jury trial. On September 19, 2016, the trial court conducted a hearing on the State's motions, during which the trial court heard testimony from Dr. Shannon Jones (Dr. Jones), a psychologist, and Kayce Clevenger (Clevenger), a psychiatric social worker.

         [¶6] Dr. Jones, who was also K.N.'s treating physician, testified that in May 2016, eight-year-old K.N. became a resident of Evansville Psychiatric Children's Center, a State-operated facility that serves children from ages five to thirteen "having significant mental health issues." (Transcript Vol. II, p. 7). Dr. Jones testified that during the course of K.N.'s treatment, she diagnosed K.N. with "post[-]traumatic stress disorder, oppositional defiant disorder, and attention deficit hyperactivity disorder." (Tr. Vol. II, p. 8). Dr. Jones indicated that K.N.'s post-traumatic stress disorder (PTSD) diagnosis may have resulted from the various traumatic events that K.N. had endured in her lifetime. Specifically, Dr. Jones stated that K.N. had been "neglected, physically abused, sexually abused, and exposed to violence from adults." (Tr. Vol. II, p. 9). Dr. Jones added that K.N. was developmentally delayed, and noted that K.N.'s emotional maturity was that of a "toddler or preschooler." (Tr. Vol. II, p. 11).

         [¶7] At issue at the hearing was whether K.N. would suffer serious emotional harm if required to testify in McKinney's presence, and whether she would be able to effectively narrate the alleged abuse. Dr. Jones testified that having to testify in front of McKinney would present a substantial likelihood of emotional harm to K.N. Dr. Jones indicated that there is a "decreased likelihood" of K.N. being able to communicate to the jury in the presence of McKinney. (Tr. Vol. II, p. 10). Dr. Jones added, "[I]f [K.N.] is in front of a bunch of people . . . she will be overwhelmed by anxiety." (Tr. Vol. II, p. 10). Dr. Jones explained that during stressful events, K.N. "tends to retreat, hide, get silent. If she is pushed further, she gets disagreeable. She starts to act out or act in a negative way, and she can eventually become aggressive." (Tr. Vol. II, p. 10). Dr. Jones specified that it would be less stressful for K.N. to testify via "closed circuit TV than it would be in open court." (Tr. Vol. II, p. 12). On cross-examination, Dr. Jones was asked to compare the two venues, the courtroom and closed circuit television, and give an analysis, on a scale of one to ten, with ten being the most stressful and one being the least stressful venue for K.N. Dr. Jones stated that it would be difficult to give an analysis on a scale of one to ten; rather she explained that "it would be a lot easier to accurately describe the relative levels of stress. The least stressful is not talking about it at all. The most stressful is talking about it in open court." (Tr. Vol. II, p. 24). Dr. Jones indicated that seeing McKinney in person would be "more traumatic" for K.N. than seeing him on a television screen. (Tr. Vol. II, p. 33).

         [¶8] Clevenger, a psychiatric social worker and K.N.'s counselor at Evansville Psychiatric Children's Center, testified that since May 2016, she had been seeing K.N. for individual therapy at least once a week. When asked whether it would be less stressful for K.N. to see McKinney on a television screen, Clevenger stated that "[I]t may be a little bit less stressful, but it will still be very stressful for [K.N.]" (Tr. Vol. II, p. 36). Clevenger similarly stated that K.N. did not react very well to stressful situations and indicated that K.N. becomes very aggressive. Clevenger added that if K.N. was confronted with the stress of facing a courtroom full of jurors, she "would likely react very negatively. She would [] probably yell, scream, try to get out of here as much as possible. She would probably be aggressive to whomever is closest to her by hitting, kicking . . ." (Tr. Vol. II, p. 36). Clevenger indicated that although K.N. would be stressed testifying in both venues, either the courtroom or by closed circuit television, she indicated that the stress on K.N. would be "significantly less" by closed circuit. (Tr. Vol. II, p. 41). Additionally, Clevenger testified that if K.N. testified in open court, it may cause lasting emotional harm on her. Clevenger emphasized that regardless of the venue, it would be "very traumatic for [K.N.] to see [McKinney], " and more particularly, "it will be extremely traumatic for [K.N.] to be in the same room" as McKinney. (Tr. Vol. II, p. 41).

         [¶9] At the close of the evidence, the trial court denied the State's motion to exclude McKinney from K.N.'s deposition. In allowing McKinney's attendance at K.N.'s deposition, the trial court imposed safeguarding measures. Specifically, the trial court directed McKinney to sit ten feet away from K.N. at the deposition table; and that an officer, of the State's choosing, should be present during the taking of the deposition to ensure that there are no "untoward actions or statements" by McKinney. (Tr. Vol. II, p. 56). Finally, the trial court stated that "should there be any effort by [] McKinney to interfere with, intimidate, stare down, comment, do anything except be present and observe and listen, then the deposition will be terminated immediately." (Tr. Vol. II, p. 56).

         [¶10] Also, the trial court denied the State's motion to have K.N. testify via closed circuit. In denying the State's motion, the trial court stated:

As to the closed circuit, I think the testimony is this little girl is going to be stressed out no matter what we do, and we all feel bad about that. But from the testimony of the experts, there is very little difference in stress to her whether [] McKinney is present in the [c]ourtroom or she sees him on TV, and she has got to see him on TV. The statute requires that. So, since there is very little difference, I am trying to weigh his right to a fair trial vis-a-vis any harm to [K.N.]. I don't think we are saving the child at all based upon the testimony of the experts. So I am going to deny the request for closed circuit testimony, and I have set up ground rules for the deposition.

(Tr. Vol. II, p. 57).

         [¶11] On October 18, 2016, the State requested the trial court to certify its Order for interlocutory appeal, which was granted on November 3, 2016. On December 30, 2016, this court accepted jurisdiction over the ...


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