106 N.E.3d 546
Ind. Ct. App.2018Background
- On Nov. 18, 2016 S.G. was severely injured (stabbed in the eye); at the hospital she identified Robert Carr and gave a statement to Detective Cobain describing confinement and stabbing.
- Carr was charged with multiple felonies, including criminal confinement (Level 3) and battery resulting in serious bodily injury (Level 5).
- Trial court entered a no-contact order prohibiting Carr from contacting S.G.; nonetheless Carr repeatedly contacted her, offered money, a car, and housing, and discussed having her change her story.
- Defense counsel deposed S.G. on Apr. 28, 2017 (audio recorded). That audio later was taken by Carr’s family and returned erased.
- S.G. ceased cooperating with the prosecutor and did not appear at Carr’s January 2018 trial despite being personally served with a subpoena; the State offered S.G.’s prior hospital statement to Detective Cobain at trial.
- The trial court admitted the statement under the forfeiture-by-wrongdoing doctrine and Evidence Rule 804(b)(5); Carr was convicted and appealed claiming Confrontation Clause and hearsay-rule errors.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Carr) | Held |
|---|---|---|---|
| Whether admission of S.G.’s out-of-court hospital statement violated the Sixth Amendment Confrontation Clause | Carr forfeited confrontation rights by wrongdoing (he caused S.G.’s unavailability), so admission did not violate the Sixth Amendment | Admission violated Crawford-based confrontation rights because Carr had no opportunity to cross-examine S.G. about the specific statement admitted | Held for State: Carr forfeited his confrontation right by his misconduct; no Sixth Amendment violation |
| Whether S.G. was "unavailable" and her prior statement admissible under Evid. R. 804(b)(5) (wrongdoing to procure unavailability) | State proved by a preponderance that Carr engaged in wrongdoing intended to and that did procure S.G.’s unavailability (no-contact violations, repeated offers, numerous calls, deposition erased) | State failed to establish adequate foundation; S.G. had been subpoenaed and no direct evidence Carr told her explicitly to stay away; deposition erasure was by family not proved to be Carr’s act | Held for State: trial court did not abuse discretion—S.G. was unavailable and 804(b)(5) foundation satisfied by preponderance |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (establishes testimonial statement confrontation rule)
- Davis v. Washington, 547 U.S. 813 (forfeiture-by-wrongdoing doctrine preserves trial integrity; defendants who procure witness silence may forfeit confrontation rights)
- Giles v. California, 554 U.S. 353 (forfeiture requires wrongful act with purpose to make witness unavailable)
- Reynolds v. United States, 98 U.S. 145 (early statement on forfeiture-by-wrongdoing)
- Speers v. State, 999 N.E.2d 850 (standard of review for evidentiary rulings and constitutional evidence issues in Indiana)
- Holmes v. State, 671 N.E.2d 841 (separating confrontation-clause analysis from hearsay exceptions)
- Howard v. State, 853 N.E.2d 461 (confrontation satisfied only if opportunity to cross-examine about the exact statement admitted)
- Ikemire v. State, 852 N.E.2d 640 (review of hearsay rulings; standard of abuse of discretion)
- White v. State, 978 N.E.2d 475 (interpreting Indiana Evidence Rule patterned on Fed. R. Evid. 804(b)(6); preponderance standard and partial-motive requirement)