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COA splits on reversal of child molesting conviction

September 4, 2014

A panel on the Indiana Court of Appeals was divided Thursday over whether a man’s Class A felony child molesting conviction should be overturned. The dissenting judge believed any error by the trial court was harmless, so the conviction should stand.

Marq Hall was convicted of molesting M.T, the 12-year-old daughter of his girlfriend, A.D. M.T. claimed Hall forced her to have sex, although an exam did not find any evidence of his DNA except for on shorts M.T. wore over her underwear and was inconclusive as to whether genital tears were caused by sex.

Hall claimed the trial court abused its discretion when it excluded a phone call between himself and A.D. discussing how to impeach M.T. A.D. told Hall several things, including about an incident in Kentucky in which M.T. claimed a boy had “did something to her” and tried to get him locked up. But A.D. said it turned out they were mutually experimenting on each other and it was the “same situation” as with M.T. and Hall.

The phone call was excluded by the trial court’s order in limine prohibiting questioning, testimony or evidence concerning specific acts of dishonesty by any state witness, but Hall argued that the state opened the door to that evidence through its questioning of himself and A.D.

“We agree with Hall that the State opened the door to the admissibility of the phone call. The State’s cross-examination of Hall insinuated that he had no basis for asking A.D. questions about M.T.’s credibility, that he had a bad motive in asking those questions, and that his request for information was for naught, all of which was untrue. When the trial court ruled that A.D.’s statements made during the phone call were inadmissible, Hall was denied the opportunity to demonstrate to the jury that A.D. had, in fact, given Hall information relevant to A.D.’s credibility,” Judge Edward Najam wrote.

“In essence, the State used the phone call as a sword to attack Hall’s credibility, while it simultaneously used the motion in limine as a shield to immunize A.D. from cross-examination, to bolster A.D.’s false testimony, which went to her credibility, and to keep Hall from answering questions to rebut the State’s attack. The State cannot have it four ways. The trial court abused its discretion when it excluded the proffered evidence.”

This was not a harmless error, so the majority ordered Hall be retried.

Chief Judge Nancy Vaidik dissented, finding the entire contents of the phone call should not be admitted. She also believed any error by the trial court in excluding the call was harmless.

“Reading between the lines here, this reversal is not about whether a false impression was created concerning whether Hall in his phone call for the first time or second time asked A.D. about M.T.’s past. The State did not make any argument about the phone call during its closing argument. Instead, this reversal is about smoke with no fire in the midst of overwhelming evidence of Hall’s guilt. If there is fire, our criminal-justice system provides a remedy through post-conviction relief,” she wrote.

The case is Marq Hall v. State of Indiana, 49A05-1312-CR-614.
 

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