Stamm v. State
556 N.E.2d 6
Ind. Ct. App.
1990
Check Treatment
SULLIVAN, Judge.

On Fеbruary 10, 1984, Jeffrey A. Stamm (Stamm) pleaded guilty to operating a vehicle while intoxicated. He filed a petition for post-conviction rеlief on March 11, 1988, which was denied. Stamm appeals the court's denial of his petition for post-conviction relief.

We reverse.

Stamm argues on appeal that his guilty plea was not knowing, intelligent or voluntary because the trial court failed to adequately advise him of his right to confront and cross-examine the witnesses against him.

The right to confrontation is conferred upon defendant by the Sixth Amendment to the United States Constitution. The defendant's voluntary waiver of the right to confrontation at a guilty plea hearing is governed by Boykin v. Alabama (1969) 395 U.S. 2838, 89 S.Ct. 1709, 23 LEd.2d 274. Compliance with Boykin is determined by reference to White v. State (1986) Ind., 497 N.E.2d 898. In order for us to determine that defendant's guilty plea was voluntary, knowing and intelligent, the record must reflect that the defendant knew or was advised of his right to confrontation at the time of pleading guilty.

"Of course, unless the record revеals that the defendant knew or was advised at the time of his plea that he was waiving his right to a jury ‍‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌‌​​​​​​​‌‌‌​‌‌‌​​‌‌​​​‌‍trial, his right of confrontation and his right against self-incriminаtion, Boykin will require that his conviction be vacated." White, supra, 497 N.E.2d at 905.

The right to confrontation "encompasses both the cross-examination of witnesses and their physical confrontation by the accused". Klenk v. State (1989) 3d Dist.Ind.App., 546 N.E.2d 110, 111. 1 Precise language need not be used if the facts and circumstances surrounding the taking of the plea indicate that an adequate advisement was given. Id.

In the present case, thе record reflects that the only advisement given was as follows:

"THE COURT: You have a right to a speedy and public trial by jury. Do you care to hаve a trial by jury or not, sin?
MR. STAMM: No. THE COURT: You are going to waive or give up that right, is that correct?
MR. STAMM: Yes. THE COURT: You may have witnesses appear, have thе State subpoena those witnesses ‍‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌‌​​​​​​​‌‌‌​‌‌‌​​‌‌​​​‌‍if they will not come in voluntarily. Are there any witnesses you wish to call on your behalf?
MR. STAMM: No, sir. THE COURT: You have no witnesses to call then?
*8 MR. STAMM: No. THE COURT: You are presumed to be innocent. The burden on the State is present [sic] their evidence and witnesses in Court аnd the State need [sic] to present enough evidence to prove this charge beyond a reasonable doubt. At a hearing to dеtermine your guilt or innocence, you have a right to remain silent, you cannot be compelled to testify or give a statement in this matter. Do you understand that?
MR. STAMM: Yes. THE COURT: On the other hand you can give a statement, you have a right to give a statement, if you waive or give up your right to rеmain silent. There has been a plea agreement submitted to the Court. I am not a party to that agreement, Mr. Stamm, I am not bound by that agreement and, in fact, I could reject that agreement. Do you understand that?
MR. STAMM: Yes." Supplemental Record at 7-9.

Although it is not necessary that the court use specific words in аdvising the defendant concerning the right to confrontation, the advisement must meaningfully convey the substance of the right. See Decker v. Statе (1990) 3d Dist.Ind.App., 550 N.E.2d 341, trans. pending. The substance of the right to confrontation was the focus of Coy v. Iowa (1988) 487 U.S. 1012, 108 S.Ct. 2798, 101 LEd.2d 857, which emphasized that the right to confrontation includes not only the right ‍‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌‌​​​​​​​‌‌‌​‌‌‌​​‌‌​​​‌‍to cross-examine witnesses, but also the right to physically face the State's witnesses. 2 More importantly, however, Article 1, Section 18 of the Indiana Constitution grants the right of an accused "to meet the witnesses face to face." See Casadа v. State (1989) lst Dist. Ind.App., 544 N.E.2d 189. Therefore, our review of whether the defendant was adequately informed.of the substance of the right to confrontаtion must be guided by both the federal and the Indiana constitutional requirements.

The advisement given in this case does not address either aspect of the right of confrontation. Although Stamm was informed that the State was required to produce evidence and witnesses in court, Stamm was not informed that he had the right to question those witnesses or to be physically present while they testified. We note that, prior to the decision in Coy, our Supreme Court, in a few instances, upheld advisements which did not convey either the right to confront the witnesses or the right to cross-examination. See Taylor v. State (1984) Ind., 459 N.E.2d 87; Romine v. State (1982) Ind., 481 N.E.2d 780. However, our understanding of Coy v. lowa, supra, as related to a guilty plea advisement concerning the right to confrontation, is that the defendant who seeks to plead guilty must at least, from the information given to him or the circumstances of the taking of the plea, understand that, were he to have a trial, he would have a right to physically face the witnesses who testify against him. 3 See Woodford v. State (1989) Ind., 544 N.E.2d 1855 (advising of the right to "see and hear" the witnesses against the defendant is adequate); Decker v. State, supra, 550 N.E.2d 341 (advising defendant he had thе right "to meet all the witnesses face to face" ‍‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌‌​​​​​​​‌‌‌​‌‌‌​​‌‌​​​‌‍is an adequate advisement); Guajardo v. State (1989) 8d Dist.Ind.App., 544 N.E.2d 174 ("the right to face witnesses аgainst" the defendant is an adequate advisement).

We do not imply a return to a requirement that the trial court use specific or prеcise words in advising defendants *9 about their right to confrontation. However, we do read Boykin, White and Coy to require that the defendant be advised of at least some component of the right to confrontation. We may not presume that a defendant's waiver is knowing, voluntary аnd intelligent from a record which is silent regarding the right to confrontation. Stewart v. State (1990) 2d Dist.Ind.App., 548 N.E.2d 1171, trans. pending.

In the present case, the court not only fаiled to use the words "cross-examine" or "confront", there is nothing in the advisement to meaningfully convey to Stamm that he had the right to physicаlly confront, face, or see or hear the witnesses in court. We therefore hold that Stamm was not adequately advised of his right to confront the witnesses against him. Because the right to confrontation is a Boykin right, the defendant need not show prejudice to merit reversal. See White v. State, supra, 497 N.E.2d 898.

We therefore reverse the judgment and remand to the post-conviction court with instruction to grant Stamm's petitiоn for post-conviction relief.

SHIELDS, P.J., and CHEZEM, J. concur.

Notes

1

. The right to cross examination is neither separately nor specifically conferred ‍‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌‌​​​​​​​‌‌‌​‌‌‌​​‌‌​​​‌‍either by thе United States Constitution or by the Indiana Constitution.

2

. It appears clear that a majority of the United States Supreme Court does not find to be absolute the requirement that a witness face the defendant. See Craig v. Maryland (1989) 316 Md. 551, 560 A.2d 1120 (cert. granted, - U.S. ---, 110 S.Ct. 834, 107 LEd.2d 830; oral arg. held 4/18/90 U.S. # 89-478, 58 U.S.L.W. 3687).

3

. That the defendant also has the right to cross-examine those witnesses who testify against him apparently is implicit in an advisement that he may be physically present to face those who testify against him in court. Woodford v. State (1989) Ind., 544 N.E.2d 1355, but see Justice DeBruler's dissent (an advisement that defendant had the right to "see and hear" the witnesses agаinst defendant is inadequate because it fails to adequately convey that defendant also had the right to cross-examine those witnesses).