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FOR PUBLICATION

FILED
Jun 20 2012, 8:59 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: KIMBERLY A. JACKSON Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JASON MICHAEL PALILONIS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 42A05-1104-CR-197

APPEAL FROM THE KNOX SUPERIOR COURT The Honorable W. Timothy Crowley, Judge The Honorable Sherry B. Gregg Gilmore, Special Judge Cause No. 42D01-0509-FC-190

June 20, 2012 OPINION - FOR PUBLICATION VAIDIK, Judge

Case Summary Jason Palilonis was convicted of Class B felony rape for raping a fellow Vincennes University student after a night where both had been drinking. A year after the incident, the victim, B.S., committed suicide. At trial, statements Palilonis made to the police, statements B.S. made to the nurse during her sexual-assault examination, and evidence of B.S.'s death were admitted into evidence over Palilonis's objections. Testimony from a nurse vouching for the credibility of B.S.'s statements about the rape was also admitted, but without any objection from Palilonis. The jury found Palilonis guilty, but four days later a juror alleged juror misconduct, specifically that the foreperson told the jury the judge thought Palilonis was guilty and some of the jurors were aware that B.S. had committed suicide. Evidentiary hearings were held, and the trial court found that no misconduct occurred. This was the correct course of action for the trial court to take in this situation, and Palilonis's argument is merely asking us to reweigh the evidence adduced at the evidentiary hearings, which we may not do. We also hold that the trial court did not err in admitting evidence of B.S.'s death, as this was the fairest resolution for both parties of the issue of why B.S. was not testifying at trial. Finally, we find that the statements B.S. made to the nurse during her sexual-assault examination are admissible under Evidence Rule 803(4) and the reasoning in Perry v. State, 956 N.E.2d 41 (Ind. Ct. App. 2011), for the description of the events of the rape. Facts and Procedural History

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On September 22, 2005, Palilonis, a twenty-year-old Vincennes University student, was drinking alcohol with other students at his apartment. Among those students was twenty-one-year-old B.S. At some point that night, Palilonis and B.S. had sex in his bathroom and were discovered by Palilonis's girlfriend. B.S. went to Palilonis's

bedroom, but Palilonis told her that she had to leave. B.S. went to the living room and fell asleep on the couch. Palilonis also fell asleep and awoke the next morning to find B.S. "passed out" and "half naked" on his couch. Tr. p. 1005-06, 1008. Palilonis said that he remained in his apartment until B.S. left. Id. at 1014. The next night, both Palilonis and B.S. were at another nearby party. There were approximately thirty to fifty students there, including B.S.'s f riends Matt Devarenne, Brice Basford, and Andrew Bryant. At the party, the students were playing beer pong, a drinking game. B.S. had more than five alcoholic drinks and became very intoxicated. Around midnight or one o'clock in the morning, Basford walked B.S. back to his nearby apartment so that she could go to sleep. She took off her jeans and passed out face down on a couch. Basford left B.S. asleep on the couch and went next door to a friend's apartment. About an hour later, Devarenne drove a group of students from the party back to Basford's apartment. Palilonis arrived a short while later. At this time, B.S. was still passed out on her stomach on the couch. One of the residents of the apartment indicated that he was going to bed, so the guests left the apartment. Devarenne, however, returned to the apartment later and noticed that it was darker than normal. Id. at 891-92.

Devarenne saw Palilonis's head over the approximately three-foot-high brick wall that 3

separated the couch from the entryway, and Palilonis told Devarenne to be quiet. Devarenne moved closer to the couch and saw Palilonis squatting behind B.S., holding her in position and penetrating her vagina with his penis. Id. at 893-95. B.S. was still face-down on the couch and not making any noise. Id. at 894-95. Devarenne yelled for his friends, but no one answered, so he went next door and told his friends that Palilonis was raping B.S. Basford, Devarenne, Bryant, and others went back to the apartment. Palilonis was still on top of B.S., and B.S. was still not moving. Basford saw Palilonis raping B.S., asked him what he was doing, and told him to "get the f*** out of my house." Id. at 899, 933. Palilonis put on his pants and fled from the apartment. B.S. woke up, distraught, and yelled "Oh my God, guys, how could you let this happen to me?" Id. at 908. She then ran crying to a friend's apartment nearby. Devarenne, Basford, Bryant, and another friend left the apartment and went over to Palilonis's apartment. Basford and Br yant beat Palilonis up. They later returned with B.S., who, according to Devarenne, repeatedly slapped Palilonis. Palilonis's roommate called the police. Police arrived around 5:30 a.m. B.S. was transported to the Good Samaritan Hospital Emergency Room where she underwent a sexual-assault examination. B.S. told Tammy Freeman, the examining nurse, the details of what had happened during her rape. Specifically, B.S. said that she went to sleep on the couch at the apartment, and she "woke up and found a male that [she] had met last evening on top of [her]." State's Ex. 52. She also said that "he had vaginal sex with [her]." Id. 4 Id. at 911-12.

During the physical examination of B.S., Freeman found that B.S. had bruises on her arm and a large amount of discharge in her vagina. Tr. p. 860, 989. A vaginal smear slide confirmed the presence of seminal material in her vagina, but the vaginal wash, rectal smear slide, oral swab, and external genital swabs did not. State's Ex. 50-51. DNA testing did not identify the sperm contributor. Tr. p. 750-51, 755, 796. Sperm was also not detected on the couch where Palilonis and B.S. had been, and testing did not produce any evidence of foreign hair, debris, or secretions on B.S.'s body. Id. at 768, 856. She was recommended to counseling and prescribed birth-control pills. Id. at 84849. Vincennes Police Department Crime Scene Investigator Mark Dupire arrived at the apartment building between 6 and 7 a.m. He advised Palilonis of his rights and obtained consent to search his apartment. Palilonis said that he had drank about six or seven beers and three or four shots of Jagermeister during the night, with his last drink at around 3 a.m. Meanwhile, Vincennes Police Department Detective Dustin Luking interviewed Devarenne at the police department about the incident. Devarenne gave a forty-fiveminute recorded statement in which he told Detective Luking that he initially thought B.S. and Palilonis were engaged in consensual sexual relations when he first saw them. Id. at 918. Devarenne said he did not think that Palilonis was wearing a condom but that he "didn't look that close . . . as to actual [sic] which hole he penetrated." Id. at 920. After talking to Devarenne, Detective Luking went to Good Samaritan Hospital to interview B.S. He then returned to the police department to interview Palilonis. Palilonis 5

signed a second waiver of his Miranda rights before the interview. State's Ex. 54. During the interview, Palilonis initially denied any sexual contact with B.S. Detective Luking then falsely indicated that someone other than B.S.'s friends had seen him on top of B.S., and Palilonis admitted that he did attempt to initiate sex with her, but he thought it was consensual given their earlier sexual encounter. Tr. p. 1037-39. The following exchange took place during the interview: Q A Did she uh was she awake? Well she woke up and that is when I got off and she said no no stop. So I stopped and got off and said all right I'm out of here then. * * * Were you trying to penetrate her? No when she woke up no. * * * * * So she is asleep on the couch and you though [sic] you would try to have sex with her? Pretty much. * * What made her wake up? * * * * *

Q A

Q

A

Q A Q A Q A

I have no idea. I would imagine me trying to stick it in her. Okay. So you actually were trying to penetrate her? Yes I just told you that. Okay. Did you actually touch her vagina then with her [sic] penis? Ish. [sic] I mean I got pretty close to it. * * * * *

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Q

Now listen Jason uh I know that you came out of the room. You saw her on the couch and you saw an opportunity there. Okay, she at no time awoke and said she wanted to have sex, did she? No. Okay. And you though [sic] uh I am going to have a chance here to have some sex. Okay. Right? Pretty much.

A Q

A

Id. at 1039-44. During the interview, Palilonis denied penetration and ejaculation. Id. at 1044, 1046. After the recorded interview was completed, Palilonis told Detective Luking in the hallway of the police department that he thought he might have penetrated B.S. a few times but he was going to stick to his story because he did not remember with certainty. Palilonis also said "I hate to think I am going to prison for ten seconds of fun." Id. at 1052. Palilonis consented to accompany police to Good Samaritan Hospital to have a suspect rape kit completed that day. The rape kit did not establish any sexual contact between Palilonis and B.S. State's Ex. 50, 51. After the rape kit was performed, Detective Luking arrested Palilonis. Three days later, the State charged Palilonis with Class C felony rape in Judge Timothy Crowley's court, but it later amended the charge to Class B felony rape. Appellant's App. p. 37, 52-53. Approximately one year later, B.S. committed suicide. Id. at 111. Before trial, Palilonis attempted to exclude all evidence of B.S.'s death and her statements made during her sexual-assault examination. Id. at 111-12. The trial court overruled Palilonis's motion as to B.S.'s statements during her medical examination and 7

ruled that the State could present evidence that B.S. was deceased but could not reveal that she had committed suicide. Tr. p. 575-76. Palilonis also tried to suppress the statements he made to Detective Luking, alleging that he did not knowingly consent because he was intoxicated and had recently been beaten up. At a suppression hearing, Detective Luking testified that he did not observe any signs that Palilonis was intoxicated and that he would not have interviewed Palilonis if he were intoxicated and unable to consent. Id. at 114, 116. Detective Luking also noted that Palilonis did not ask for any medical treatment for the beating he sustained. Id. at 114. The trial court denied Palilonis's motion to suppress. Appellant's App. p. 157. Due to continuances and court congestion, the trial did not begin until May 5, 2009, nearly four years after the incident. During trial, Devarenne testified that he saw Palilonis raping B.S., Tr. p. 894 ("I saw Jason's penis go inside of her vaginally"), and Basford testified that he saw Palilonis naked on top of B.S. Id. at 933. Tammy Freeman, the Good Samaritan Hospital nurse who performed the sexual-assault examination on B.S., testified as to statements B.S. made to her during the examination that concerned the events of the rape. Id. at 851. She also made the following statements without objection from Palilonis: Q A Q A And [B.S.'s case] was noteworthy to you? Oh absolutely. And why is that? Uh. I guess the easiest way to say it is. Uh when you talk to someone and you have been around this situation enough times uh I guess you could just 8

say it was believable. The story is believable or should I say her story is believable. Q A Q So [B.S.] made an impression? Absolutely. You said she supplied you with a history so you could do your treatment. Is that correct? Yes. Did she do that in this circumstance? Yes she did. How would you describe, uh you said she made an impression on you. How would you describe her on this occasion? She was what I would call very straight forward with me . . . .

A. Q A Q

A

Id. at 820-21. The prosecutor referred to these statements again in his closing argument but did not give his own opinion as to B.S.'s truthfulness. Id. at 1162. The jury found Palilonis guilty. Appellant's App. p. 215. The jury was polled, and every juror agreed with the verdict. Tr. p. 1257-59. Four days after the verdict, however, Palilonis's counsel received an anonymous letter from a juror alleging juror misconduct. Palilonis filed a motion to set aside the verdict and asked that Judge

Crowley recuse himself because he was allegedly involved in the jury misconduct. Judge Crowley denied any misconduct but recused himself; Judge Sherry Gregg Gilmore was selected as a special judge. Judge Gilmore allowed Palilonis in-camera access to the jury questionnaires, through which he was able to identify the juror who wrote the letter

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