Summary
observing that defense counsel's failure to object to hearsay evidence in a child sexual assault case that consisted of mother's testimony as to what the child had told her regarding the alleged assault and a police officer's testimony as to the mother's report of the child's statements, was not particularly prejudicial, did not amount to ineffective assistance of counsel, and did not rise to the level of fundamental error requiring reversal
Summary of this case from Eastwood v. StateOpinion
No. 64S04-9704-CR-230.
April 2, 1997.
Appeal from the Porter Superior Court, Mary R. Harper, J.
John E. Martin, Valparaiso, for Appellant.
Pamela Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellee.
Appellant George Stavropoulos appeals his conviction for sexual assault, a class D felony, Ind.Code § 35-42-4-8.
The evidence at trial showed that Stavropoulos forced six-year-old J.V. to have sexual contact with him. Stavropoulos argues that the trial court erred by admitting hearsay testimony. J.V.'s mother recounted the girl's description of the crime, and a police officer testified about the mother's report of J.V.'s statements. J.V. herself subsequently testified. There was no objection to any of the testimony at trial.
Stavropoulos also argues that his lawyer rendered ineffective assistance by not objecting to the hearsay.
A divided Court of Appeals reversed. Stavropoulos v. State, No. 64A04-9605-CR-182, 676 N.E.2d 36 (Ind.Ct.App., Jan. 29, 1997). It held that admission of the hearsay was fundamental error. Judge Chezem dissented, asserting that the hearsay did not sufficiently prejudice Stavropoulos' right to a fair trial as to require reversal. She also concluded that counsel was not ineffective.
Judge Chezem is right. Admitting the hearsay was not particularly prejudicial, and trial counsel could very well have decided to sit by while the mother and the officer gave their version of the child's statements, on the hope that inconsistent versions might emerge from which the defense could benefit.
We grant transfer and affirm the trial court.
DICKSON, SULLIVAN and BOEHM, JJ., concur.
SELBY, J., not participating.