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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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