ILNews

Court can determine when defendant testifies

Jennifer Nelson
January 1, 2008
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Defendants have the constitutional right to testify at trial, but they do not have the right to dictate when they take the stand, the Indiana Court of Appeals ruled Feb. 25.

At issue in Kevin Book v. State of Indiana, No. 49A05-0707-CR-385, is whether the trial court violated Book's Fifth and Sixth Amendment rights when he was allegedly compelled to make a decision whether to testify at a particular time during his trial.

Book was accused of smothering to death his girlfriend's 20-month-old daughter with his hand as his girlfriend slept. A jury found Book guilty of murder, and the trial court sentenced him to 60 years in prison, finding no mitigating factors.

Book appealed his conviction. He argued his constitutional rights were violated when the trial court allegedly tried to compel him to testify at a particular point in the trial. Book also believed the court shouldn't have allowed his 10-year-old cousin to testify at trial about an incident that took place between Book and his girlfriend's daughter several days before the murder. Book also appealed the sufficiency of evidence and his sentence.

During his trial, his defense counsel wanted to wait to put Book on the stand until after their only witness, Dr. Scott Wagner, could testify. The court decided Wagner would testify Saturday to accommodate his schedule and to complete the trial before Monday morning. The trial judge told the defense late Friday afternoon that if it had any more evidence besides Wagner, it had to be presented that day.

The trial court was trying to follow a schedule and complete the case in order to hear other cases on its docket. The trial judge told the defense it was up to them whether to rest after Wagner testified and also whether to call Book to the stand, but it could not guarantee there would be enough time to allow Book to testify after Wagner.

Because there was still available time Friday afternoon, the trial judge would not grant a continuance to prepare for Book's testimony, saying Book had a right to testify but did not have the right to testify when he wanted.

Book declined to testify Friday or after Wagner Saturday; the defense rested after Wagner's testimony.

On appeal, Book argued he was forced to testify when the trial court decided he should, not when Book's counsel believed was best. The decision of the trial court violated his constitutional right to determine when he would testify on his own behalf.

Book had plenty of time to prepare his defense, wrote Chief Judge John Baker, since discovery for the case began nearly 14 months prior. Book should have known what Wagner's testimony would include well before he testified, so his defense counsel's claim that Book's testimony hinged upon what Wagner said fails.

Book failed to show how the trial court's actions resulted in any harm or that the trial court prevented his counsel from full participation in the adversary fact-finding process, wrote Chief Judge Baker.

Book wanted his conviction reversed because of the testimony of his 10-year-old cousin was improperly permitted. His cousin testified that days before the murder, Book had told his girlfriend's daughter to shut up and threw a pillow at her.

Book's counsel did not object to the testimony at trial, so "the issue is waived," Chief Judge Baker wrote. Even if the issue wasn't waived, the trial court conveyed to the jury it was to consider the testimony only to understand the relationship between the young child and Book.

Finally, the Court of Appeals determined there was sufficient evidence to support Book's conviction and his 60-year sentence was appropriate.
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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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