*1 1031 firmly hearsay excep 'falls within a rooted prongs Because both of the Ohio v. Rob tion,' supported by met, it 'a show erts test have been we hold that particularized guarantees deprived trust defendant was not of his constitu Wright rights worthiness." Idaho v. at tional U.S. of confrontation.
815, 3147, S.Ct. at L.Ed.2d at 653. "firmly hearsay exception" rooted is one Cоnclusion long being that has "a tradition of outside jury instruction on the attempted compass general hearsay of the exclusion." charge, whole, murder taken аs a did not Bou rjaily v. United States constitute fundamental error. Additional- 171, 183, 2775, 2782, 483 U.S. 107 S.Ct. 97 ly, the defendant's confession was properly L.Ed.2d 157. Both federal and state admitted as were heаrsay certain state- courts have held that an excited utterance ments. Price's convictions are firmly falls within the realm of rooted hear affirmed. say exceptions. See, United States v. Cir., 566; Moore 7th 791 F.2d. SHEPARD, C.J., and GIVAN and (1985), Ind., Holmes v. State 480 N.E.2d DICKSON, JJ., concur. Thus, the statements submitted DeBRULER, J., result, concurs in with- part this case meet the first of the Ohktov. sepаrate opinion. out test; possess Roberts the statements suffi reliability." cient "indicia of
We must now determine see- part
ond of the Okio v. Roberts test has met, is,
been that whether either the declar- utility
ant was unavailable or the of con-
frontation was remote. We hold that the victim's sub-parts statements met both (Formerly Wenning) Robin LAMB this test. Appellant-Petitioner First, the victim was unavailable to testi- fy for two reasons: She had filed an affida- Larry Appellee- N. WENNING informing vit with the court it Respondent testify she would invoke her "Fifth silent", Amendment to remain No. 31A01-9104-CV-99. prohibited her mental illness her from testi- Indiana, Appeals Court of fying. Secondly, utility of confronta- First District. tion was remоte because the crux of the May4, 1992. victim's statement-that she had been shot .by Jake Price-was uncontested. Price clear,
made at trial and in both brief,
late issue this case was intent, identity. only hearsay not
statements admitted concerned identity perpetrator of the crime. At no time
did Price the accuracy contest of these fact,
statements. Price affirmed them Consequently, his confession. it is diffi- prejudiced by
cult to see he how was
admission of these statements. Because challenging
the defendant hearsay
truth of the declarant's state-
ments, apparent cross-exami-
nation of the declarant
statements would have little or no value. *2 Naville, New Lorch, Lorch & B.
Linda appellant-petitioner. Albany, Corydon, for Burgher, M. Marcus lee-respondent. REHEARING ON
OPINION ROBERTSON, Judge. Wenning, petitions
Father, Larry N. rehearing of our court Wenning as Lamb dissenting). (Hoffman, J. Lamb, divorсe court changing primary parties' custody of the We re Father. from the prove failed to versed, holding that Father substantial so changed circumstances еxisting continuing as to make required unreasonable 81-1-11.5- under IND.CODE modifications asserts, consistent 22(d). Father Judge Hoff dissenting opinion authored stringent "best man, the less standard apрropriate is the standard ests" apply determin- for the divorce whether the justified can be de provision should be modified within a pending upon description of thе legal custody arrangement. deny Fa- petition. ther's *3 interpret argument, We Father's
FACTS
upon
based
Judge
dissenting
Hoffman's
opinion,
suggesting
that-in the
context
report-
As set out in detail in
our earlier
ed
agreed
joint
Father and Mother
of a
custody arrangement-a
change
of
upon
conditions
joint legal
substantially
their divorceeto be
which
custodi-
alters one
of the factors underlying
assumptions
the
ans of their
with Mother
to
enjoy primary physical custody. Jerry
upon
which successful and
beneficial
custody arrangements
(6) years
six
triggers
based
old at the time of the
divorce
(8)
eight
years
and is now
old. Soon after
ability
the
custodian to sue for
divorce,
primary physical custody of the child or
the
Mother announced her inten-
tion to move to Missouri. Father filed for
children,
preserving
while
the
modification,
a
requesting that he be
relationship. We dо not believe that one
primary physical custody
Jerry.
of
parent's failure
to adhere to the
custo
court,
The divorce
preserving
while
the
dy "groundrules" (583
752) upon
N.E.2d at
joint legal custody arrangement, granted
which
custody arrangements
the
finding
best
based, should
trigger
serve to
a
custo
interests were served
pri-
an award of
ability
diаn's
to sue for
mary physical custody in the Father. As
may
award
not be
above,
noted
peti-
we reversed and Father
punish
modified in order to
parent.
.
a
rehearing.
tions for
(1980), App.,
Clark v. Clark
Ind.
404 N.E.2d
23. We believe the effect of the
best
DECISION
ests/joint custody groundrules standard
guiding principle
in determin
encourage parents
would be to enable and
modify
custody is the best
punish
each other with
over
interests of the
Marriage
child. In re
alleged
joint custody
violations of the
of
(1982), Ind.App.,
Davis
tion of a child
higher
right
parents
than
of
their
raise
obtaining
standard for
an initial
award
children is an essential
and basic
eustody
prevent
of child
disruptive
protection
within the
of the Fourteenth
moving
effect of
children back and forth Amendment to the United States Constitu
parents. Lamb,
between divorced
Adoption
tion.
In the Matter
N.E.2d 745. We fail to
understand how the
Topel
Ind.App.,
tionship my dissent For persons including whether factors I dissent earlier to subor- able custody are rehearing. The on to those needs оwn dinate and by open served are better bar and was awarded who parent child-as legal issues. dialogue continuous impor- Other case. custody in Solomоn's devised formulas adherence Dogmatic joint le- a successful groundrules tant legal as such to considerations prior par- include gal custodial realistically reflect custody does and willingness commitment ents' legal process. necessary evolution cooperate and communicate ability to resolu- amicable it is evident While However, welfare. advancing the pref- far would be custody matters tion of appro- are matters not believe dowe cоurts, courts erable once the subjects for priate issues. such to decide regularly relationship is established. arrange- Recognition per- courts often, ask our All too upon the unique demands present ments completely they are services form facilitate courts and children parties, provide. incompеtent By en- disputes. the resolution matter. such just one is children specific provisions acting for the wrong tool simply the courts 31-1-11.5- IND.CODE arrangements, § serve must not courts job. Our dis- exposed 21(f)-(g), re- joint custodial parents" "referee sole cus- initial awards between tinction lationships. awards initial tody modi- no less distinction knowing way of no have proceedings. fication particular not, only time work will rehearing af- grant vote I would (1989), Ind. v. Walker can tell. Walker trial court. judgment firm In the 509. N.E.2d App., 589 agreed to be hаve Robin Larry and enjoy Robin to legal custodians custody. We believe fun parents' clothed
relationship is child own raise their right to
damental judicial inviolate kept arrange If a vention. sole to a fails, be it should
ment Meneou
Meneou
Petition denied.