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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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  2. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  3. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

  4. "The commission will review applications and interview qualified candidates in March and April." Riiiiiight. Would that be the same vaulted process that brought us this result done by "qualified candidates"? http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774 Perhaps a lottery system more like the draft would be better? And let us not limit it to Indiana attorneys so as to give the untainted a fighting chance?

  5. Steal a little, and they put you in jail. Steal a lot, and they make you king. Bob Dylan ala Samuel Johnson. I had a very similar experience trying to hold due process trampling bureaucrats responsible under the law. Consider this quote and commentary:"'When the president does it, that means it is not illegal,' [Richard] Nixon told his interviewer. Those words were largely seen by the American public -- which continued to hold the ex-president in low esteem -- as a symbol of his unbowed arrogance. Most citizens still wanted to believe that no American citizen, not even the president, is above the law." BWHaahaaahaaa!!!! http://www.philly.com/philly/blogs/attytood/When-the-president-does-it-that-means-it-is-not-illegal.html

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