Kenneth Brittain v. State of Indiana, 68 N.E.3d 611

On April 26, 2013, a pickup crashed into an apartment; driver Timothy Denny was found shot dead and Victoria Richie was wounded and identified her shooter as "Bart/ Ken Bart." Police recovered a handgun and Brittain's phone from the vehicle.
Brittain was charged with murder (Count I) and attempted murder (Count II). Richie was deposed by defense counsel in January 2014; she later died before trial.
The State sought to introduce Richie's deposition at trial; Brittain objected on Confrontation Clause grounds and later on perceived deficiencies in the deposition procedure.
The trial court admitted a redacted version of Richie's deposition and also admitted handwritten notes she made in the hospital; Brittain moved for mistrial based on the notes admission, which was denied.
Jury convicted Brittain on both counts; he received consecutive sentences totaling 85 years (55 + 30 with portions suspended) and appealed raising confrontation, evidentiary-admission, and mistrial issues.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Brittain)	Held
1. Admission of deposition — Confrontation Clause	Deposition was a prior opportunity for cross-examination (defense counsel deposed Richie for ~2 hours, 110 pages) so admission complies with Crawford.	A discovery deposition is not equivalent to a trial deposition; motives differ and defense had inadequate confrontation opportunity.	Admission did not violate Sixth Amendment or Indiana Constitution; deposition provided adequate prior opportunity for cross-examination.
2. Admission procedure — Trial Rule 30 / certification	State contended Brittain waived procedural objections by not making a contemporaneous Rule 30 objection at trial.	Deposition lacked Trial Rule 30 formalities (e.g., reporter certification, signature/review by witness), making it unreliable.	Issue waived on appeal because Brittain's trial objections were limited to confrontation; no contemporaneous Rule 30 objection was made.
3. Admission of hospital handwritten notes / mistrial	Notes were admissible as excited utterance and cumulative of other admissible statements; any error was harmless.	Court later indicated the deposition did not satisfy Evidence Rule 801(d)(1)(C) for admitting identification and failed to admonish jury after admitting the notes; moved for mistrial.	Court did not abuse discretion: notes admissible as excited utterance; alternatively admission was cumulative and any error harmless; mistrial denial affirmed.

Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause requires unavailability plus prior opportunity for cross-examination to admit testimonial statements)
Davis v. Washington, 547 U.S. 813 (2006) (distinguishes testimonial vs. nontestimonial statements for confrontation analysis)
Howard v. State, 853 N.E.2d 461 (Ind. 2006) (Indiana Supreme Court: lengthy discovery deposition can satisfy prior opportunity for cross-examination)
Berkman v. State, 976 N.E.2d 68 (Ind. Ct. App. 2012) (Indiana face-to-face right satisfied when witness was cross-examined previously and is unavailable)
Noojin v. State, 730 N.E.2d 672 (Ind. 2000) (trial court evidentiary rulings reviewed for abuse of discretion)