The Indiana Court of Appeals said a Tippecanoe County man has the right to a retrial on a child molestation charge because the prosecutor inappropriately vouched for the victim’s credibility and had offered to show the victim a transcript of past statements without the teenager asking for that recollection.
In a unanimous ruling Tuesday in Michael J. Gaby v. State of Indiana, No. 79A02-1006-CR-804, the three-judge appellate panel reversed the Class A felony child molesting conviction and remanded for retrial before Tippecanoe Superior Judge Thomas Bush.
The case involves a girl known as M.C., born in 1993, who lived in the same apartment complex as Michael Gaby in the mid-90s. He watched her along with other children when M.C.’s mother went to work. One time, he was alone with the girl and told her to try on some clothes that his young daughter of the same age had outgrown. She undressed, and the court record says that Gaby put a blanket over her and used his fingers to molest her while she was sitting on the bed. The girl didn’t go to Gaby’s apartment alone after this incident, and Gaby and his daughter later moved out of the apartment. She never reported the incident until April 2009, when she was 15 years old and told a teacher what Gaby had done to her. That teacher contacted police and the investigation began, with Gaby denying he’d molested the girl.
Police charged him with felony child molesting in June 2009 and amended the charges in March 2010 based on dates of the incident. After a two-day trial, a jury found Gaby guilty. The trial court sentenced him to 20 years in prison and ordered that he serve that as a credit-restricted felon, based on a 2008 state statute, meaning that a convict only earns one day of credit for every six served.
But what led to this appellate reversal is the prosecutor’s conduct at trial. Gaby argued that the trial court abused its discretion in allowing the prosecutor to refresh M.C.’s recollection using a transcript from a previous interview. The girl testified at trial that Gaby hadn’t spoken or touched her anywhere else, but the prosecutor then showed her a past statement contradicting that. Gaby’s counsel objected and the trial court allowed it, saying attorneys are able to impeach their own witnesses on the stand. But the appellate panel disagreed, citing Indiana Rules of Evidence and past precedent stating that a witness must first state that he or she does not recall information sought by the questioner in order for the attorney to refresh that individual.
“We agree with Gaby that the transcript clearly shows that M.C. did not testify as to any lack of recollection regarding the events before the prosecutor showed her the transcript of previous statement,” Judge Paul Mathias wrote. “M.C. simply gave answers the prosecutor neither expected nor desired. The prosecutor attempted to rectify this by having M.C. read the transcript of her previous statement, after which M.C. still struggled to give the prosecutor the desired answers.”
The appeals court also found the prosecutor erred by saying she was “confident” that the jury would find M.C. credible, and that resulted in improper vouching on an issue central in this case.
Sending the case back for retrial, the appellate panel found the recollection and vouching issues to be non-harmless errors. A retrial is possible and double jeopardy doesn’t apply, said the appellate judges. They also determined that if Gaby is found guilty, he can’t be sentenced as a credit-restricted felon because the court in Upton v. State, 904 N.E. 2d 700, 704 (Ind. Ct. App. 2009), found that restriction unconstitutional when applied retroactively.