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. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  2. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  3. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  4. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  5. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

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