ILNews

Father’s testimony at molestation trial not fundamental error

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The Indiana Court of Appeals upheld a Lake County man’s conviction of Class C felony child molesting, rejecting the defendant’s claims that some of the victim’s father’s testimony at trial resulted in fundamental error.

In Terrence T. Walker v. State of Indiana, 45A04-1208-CR-441, Terrence Walker raised three issues on appeal: the victim’s father made several inadmissible statements concerning Walker’s guilt, that the trial court erred in not instructing the jury on Class D felony sexual battery as a lesser-included offense, and that the trial court abused its discretion in replacing the only African-American juror after he was late for court.

Walker was on trial on charges of Class C felony child molesting involving fondling or touching and Class A felony child molesting involving sexual intercourse. He was accused of forcing his stepdaughters’ friend A.B. into the back of his car, where he got on top of her, pulled down her leggings and removed her underwear. The jury only found him guilty of the Class C felony charge.

Walker claimed that portions of A.B.’s father’s testimony on direct examination and cross-examination should be excluded, but since he did not object at trial, he argued on appeal that the statements made resulted in fundamental error. The trial judge told the jury to disregard an outburst the father had after direct examination.

The Court of Appeals found only one portion of the father’s testimony violated Ind. Evidence Rule 704(b), when a comment he made voluntarily implied that Walker was guilty. But this testimony did not deprive him of a fair trial because of other evidence. The judges ruled that some of the comments were invited error because they were in response to defense counsel questioning, and that the admonishment to the jury cured any error arising from the father’s initial outburst.

There was no fundamental error in not instructing the jury on Class D felony sexual battery because that offense is not an inherently nor a factually included offense of Class C felony child molesting as charged.

The judges also found no abuse of discretion in removing Juror 271, the only African-American on the panel, after he was two hours late for court. Walker doesn’t allege the juror was replaced based on racial discrimination nor present any facts to suggest that, but wants the COA to assume prejudice. The trial court attempted to reach the juror, but he did not respond to phone calls and they did not know if or when he would appear, so the trial court had reasons to replace him on the jury, the court ruled.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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