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Wednesday, September 06, 2006

Ind. Decisions - Supreme Court issues two today

In Ronald C. Howard v. State of Indiana, a 12-page, 5-0 opinion, Justice Rucker writes:

After a trial by jury the defendant Ronald C. Howard, Jr., was found guilty of child molesting based largely upon the deposition testimony of a child witness who refused to testify at trial. Because there was no showing that the witness was unavailable for trial within the meaning of the protected person statute, the trial court erred in allowing the deposition into evidence. We therefore reverse the judgment of the trial court and remand this cause for further proceedings. * * *

As explained in more detail in part II below, we conclude that C.C. was available for cross-examination when her deposition was taken. However, notwithstanding that conclusion, the trial court erred in allowing C.C.’s deposition into evidence because C.C. was not shown to be unavailable for trial. In sum, for Confrontation Clause purposes a hearsay statement that allowed a prior opportunity for cross-examination may be admitted into evidence but only if the declarant is unavailable. C.C. was not unavailable within the meaning of the protected person statute – the mechanism for determining trial unavailability for children that are alleged to have been sexually abused.4 It is true the record shows that C.C. was apparently emotionally upset when called upon to testify. But there was no testimony by a medical or mental health professional about the nature and extent of her condition. Nor was there a finding by the trial court that C.C. was unable to participate at trial for medical reasons or that C.C. was legally incompetent to testify.

Because C.C. was present at trial and took the stand but refused to testify, we conclude that in the absence of an unavailability finding pursuant to the protected person statute, C.C. was not “unavailable.” The judgment of the trial court is therefore reversed and Howard’s conviction is set aside. This does not however end our analysis. The evidence in this case, specifically C.C.’s deposition testimony, was sufficient to support the jury’s verdict. As a result there is no double jeopardy bar to retrial. See Smith v. State, 721 N.E.2d 213, 220 (Ind. 1999). And should the State decide to retry Howard, and if a proper unavailability determination is made, the question remains whether C.C.’s pre-trial deposition may be admitted into evidence. We now address this issue. * * *

[B]efore the deposition testimony of a child covered by the protected person statute may be introduced at trial, the Sixth Amendment demands “unavailability and a prior opportunity for cross-examination.” (emphasis added). Crawford, however, provides no guidance concerning what “opportunity” is sufficient to satisfy the demands of the Sixth Amendment. Distinguishing between a “discovery” deposition and a “trial” deposition, Howard insists that he had no “adequate opportunity” to cross-examine the child witness in this case. * * *

We acknowledge that trial counsel’s motivation for taking a deposition solely for the purpose of discovery may differ from that of a deposition to perpetuate testimony. * * * But we make two observations. First, although Howard contends that the purpose of the deposition in this case was “for discovery” only, counsel for Howard nonetheless conducted a vigorous and lengthy examination. The deposition lasted approximately two hours and resulted in ninety-two typewritten pages, nearly all of which constitute counsel’s examination of C.C. We thus disagree with Howard’s claim that he was denied his right of confrontation. * * *

Second, and perhaps more importantly, Crawford speaks only in terms of the “opportunity” for adequate cross-examination. The right of confrontation under the Sixth Amendment is honored where “the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” Maryland v. Craig, 497 U.S. 836, 847 (1990) (quoting Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam)). Whether, how, and to what extent the opportunity for cross-examination is used is within the control of the defendant. * * *

Conclusion. Because there was no showing that C.C. was unavailable for trial within the meaning of the protected person statute, the trial court erred in allowing C.C.’s pretrial deposition into evidence. We conclude however that Howard had a full, fair, and adequate opportunity to confront and cross-examine C.C., within the meaning of the Sixth Amendment, when her pretrial deposition was taken. Accordingly, subject to a trial court finding of unavailability consistent with the protected person statute, C.C.’s deposition may be introduced into evidence at any subsequent retrial.

The judgment of the trial court is reversed and this cause remanded.

In Joshua Staton v. State of Indiana, a 9-page, 3-2 opinion, Justice Boehm writes:
It is a core constitutional principle that in a criminal prosecution the State must prove every element of an offense. We hold that when the age of a defendant is an element of a crime the defendant does not waive that requirement by failing to file a motion to dismiss on the ground that he is not of the required age. * * *

On appeal, Staton challenges the sufficiency of the evidence to support his conviction. Specifically, he contends that the State failed to prove beyond a reasonable doubt that he was at least eighteen years of age at the time of the offense.

The Court of Appeals affirmed the conviction, holding that Staton waived any challenge to the sufficiency of proof of his age because he did not file a motion to dismiss on the ground that he was not at least eighteen years old at the time of the charged offense. Staton v. State, 843 N.E.2d 75, 76 (Ind. Ct. App. 2006). The Court of Appeals believed that this Court’s opinion in McGowan v. State, 267 Ind. 16, 366 N.E.2d 1164 (1977) compelled that result. Judge Vaidik disagreed as to the effect of McGowan, concluding that more recent decisions by this Court “and sound policy considerations support the position that where the offender’s age is an element of the crime charged, the State bears the burden to establish age beyond a reasonable doubt.” Judge Vaidik concurred in affirming Staton’s conviction, however, believing that the State had presented sufficient evidence to establish that Staton was at least eighteen years of age at the time he committed the charged offense. * * *

[State's Burden] We agree with Judge Vaidik that proof of age is required by the Fourteenth Amendment Due Process Clause. A long and solid line of federal constitutional doctrine dictates this result. * * *

[Sufficiency of Evidence] We conclude it was a permissible inference for the jury to find that age was established beyond a rea-sonable doubt.

Conclusion. The decision of the trial court is affirmed. Shepard, C.J., and Dickson, J., concur.

Sullivan, J,. concurs and dissents with separate opinion in which Rucker, J., joins.

Sullivan, Justice, concurring and dissenting. I concur with the Court's holding concerning the McGowan case but respectfully dissent from its conclusion on the sufficiency of the evidence as to the defendant's age. While there may have been enough evidence here to meet a preponderance of the evidence standard, I cannot agree that the testimony of a sole 16-year-old witness that she "imagine[d]" and “under[stood]” defendant to be over the age of 18 constitutes substantial evidence of probative value that, beyond a reasonable doubt, the defendant was over the age of 18. I also disagree with the Court's suggestion in several places that defendant's failure to challenge what little proof the State did offer affects this assessment. I would reverse the judgment of the trial court.

Rucker, J., joins.

Posted by Marcia Oddi on September 6, 2006 11:47 AM
Posted to Ind. Sup.Ct. Decisions