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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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