Completely Infeffective: Court Of Appeals Of Indiana Uses Rule Of Completeness To Reject Ineffective Assistance Of Counsel Claim

Like its federal counterpart, Indiana Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require at that time the introduction of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.

What this means is this whenever a party introduces part of a writing or recorded statement that helps his case, there will usually be another part of that writing/recorded statement or another writing/recorded statement that hurts his case. And what this means is that a party will likely be unable to prove a claim of ineffective assistance of counsel when his trial attorney fails to introduce a writing/recorded statement that is both helpful and hurtful to his case, which is what happened in the recent opinion of the Court of Appeals of Indiana in Chenoweth v. State, 2010 WL 3011960 (Ind.App. 2010).

In Chenoweth, James Chenoweth was charged with two counts of Class A felony child molesting. Before trial, there was a "Protected Person's Statute" ("PPS") hearing, during which (1) the alleged victim apparently merely testified that Chenoweth touched the outside with her vagina with his finger, and (2) the alleged victim's mother apparently testified that she did not tell two individuals that she saw the victim inappropriately playing with dolls. At trial, the alleged victim and her mother provided testimony that was apparently inconsistent with their testimony at the PPS hearing. At trial, however, defense counsel did not introduce the relevant portions of the transcript of the PPS hearing, and Chenoweth was eventually convicted of both counts of child molesting.

Chenoweth thereafter appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial attorney failed to introduce these portions of the transcript of the PPS hearing. The Court of Appeals of Indiana disagreed, finding that if Chenoweth's trial counsel would have introduced these favorable portions of the transcript, it would have opened the door for the admission of several other unfavorable portions of the transcript pursuant to Indiana Rule of Evidence 106. Specifically, the court noted that these unfavorable portions would have revealed that

(1) the victim was in fear of Chenoweth; (2) the victim had to sit on the prosecutor's lap during a portion of the questioning; and (3) a child psychologist testified that the victim described several sexual acts that involved her and Chenoweth. Additionally, trial counsel would have revealed that the victim now was afraid to enter bathrooms because of sexual acts that Chenoweth committed with her in his bathroom. Furthermore, trial counsel would have revealed the child psychologist's testimony that post-traumatic distress caused the victim's change of testimony.

Thus, the court found that "[g]iven the nature of these portions of the victim's PPS hearing testimony, trial counsel's decision to forgo the use of the transcript does not constitute ineffective assistance of counsel."

-CM