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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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