STATE оf Indiana, Appellant, (Plaintiff Below) v. Bertha Jane OWINGS, Appellee. (Defendant Below)
No. 32S05-9310-CR-1194
Supreme Court of Indiana
Oct. 29, 1993
Stephen A. Oliver, Boren & Oliver, Martinsville, Samuel S. Shapiro, Bloomington, for appellee.
ON PETITION TO TRANSFER
KRAHULIK, Justice.
We grant transfer to address whether
Facts
Bertha J. Owings was charged with dealing in cocaine, a class A felony,
Zook was deposed by Owings counsel оn May 30, 1991. Although free on bond at the time of the deposition, Owings did not attend. Zook testified in his deposition that Owings son told him that he had swallowed cocaine-filled balloons brought to the Center by his mother. Zook further testified that he provided Owings son with water to induce regurgitation, and afterward, the son gave the balloons to Zook. Zook signed the deposition transcript pursuant to Indiana Trial Rule 30(E).
Zook committed suicide in July, 1991. Owings moved to suppress the deposition on the grounds that Zooks testimony was not sufficiently reliable and its admission would violate her rights of confrontation under the
The Court of Appeals reversed the trial court and held that Zooks deposition was admissible because it bore sufficient indicia of reliability and Owings had waived any right to а face-to-face confrontation. State v. Owings (1992), Ind.App., 600 N.E.2d 568. We agree that the deposition is admissible, but address the contentions made in Owings petition to transfer that (1) use of the deposition at trial would deny her the right of confrontation, including cross-examination, a face-to-face meеting with the accusing witness, and the right to have the jury observe the demeanor of the witness; and (2) the deposition was not reliable.
Rights of Confrontation
The
These cases exemplify this Courts tradition of recognizing that Indianas confrontation right contains both the right to cross-examination and the right tо meet the witnesses face to face. It places a premium upon live testimony of the States witnesses in the courtroom during trial, as well as upon the ability of
the defendant and his counsel to fully and effectively probe and challenge those witnesses during trial before the triеr of fact through cross-examination. The defendants right to meet the witnesses face to face has not been subsumed by the right to cross-examination. That is to say, merely ensuring that a defendants right to cross-examine the witness is scrupulously honored does not guarantee that the requirements of Indianas Confrontation Clause are met. The Indiana Constitution recognizes that there is something unique and important in requiring the face-to-face meeting between the accused and the States witnesses as they give their trial testimony. While the right to cross-examination may be the primary interest protected by the confrontation right in Article I, § 13 of the Indiana Constitution , the defendants right to meet the witnesses face to face cannot simply be read out of our States Constitution.
Nonetheless, neither the
The right is not absolute. It is secured where the testimony оf a witness at a former hearing or trial on the same case is reproduced and admitted, where the defendant either cross-examined such witness or was afforded an opportunity to do so, and the witness cannot be brought to testify at trial again because he has died, become insane, or is permanently or indefinitely absent from the state and is therefore beyond the jurisdiction of the court in which the case is pending. Wilson v. State (1910), 175 Ind. 458, 93 N.E. 609. In such cases, there has been a prior face-to-face meeting with the opportunity to cross-examine the witness beforе a trier of fact in the same case and a necessity for the reproduction of testimony exists. Such an opportunity for cross-examination in a prior civil case, however, will not suffice.
Although the following cases do not expressly discuss Indianas face-to-face requirement, they recognize the rule that prior testimony from a subsequently-unavailable witness is admissible at a subsequent trial, provided that the defendant had the opportunity to confront the witness when the testimony was originally given. Atkins v. State (1990), Ind., 561 N.E.2d 797, 801 (testimony given at bail hearing); Ingram v. State (1989), Ind., 547 N.E.2d 823, 826 (deposition testimony); Coleman v. State (1989), Ind., 546 N.E.2d 827, 829-30 (deposition testimony); Hammers v. State (1987), Ind., 502 N.E.2d 1339, 1344 (bail hearing); Abner v. State (1985), Ind., 479 N.E.2d 1254, 1262 (deposition testimony).
However, where a defendant has never had the opportunity to cross-examine a witness and meet him face to face, admission of prior testimony at a subsequent proceeding violates the constitutional right of confrontation. Brady, 575 N.E.2d at 989 (videotaped testimony taken outside the presence of defendant and used at trial); Miller, 517 N.E.2d at 74 (videotаped statement of child where defendant received no notice); Driver v. State (1992), Ind.App., 594 N.E.2d 488, 489-90 (testimony from prior trial at which defendant did not have the opportunity for a face-to-face confrontation).
Criminal defendants generally have no constitutional right to attend depositions. Jones v. State (1983), Ind., 445 N.E.2d 98, 99. This is so bеcause the constitutional right of confrontation applies only to “those criminal proceedings in which the accused may be condemned to suffer grievous loss of either his liberty or his property,” and a deposition taken for purposes of discovering information is nоt
The right of a criminal defendant to confrоnt the witnesses against him, however, is an individual privilege relating to the procedure at trial and, therefore, may be waived. Brady, 575 N.E.2d at 987. For a waiver to be effective, there must be “an intentional relinquishment or abandonment of a known right or privilege.” Phillips v. State (1989), Ind.App., 543 N.E.2d 646, 648. The determination of whether a defendаnt has waived a constitutional right depends on the circumstances of the particular case, including the conduct of the defendant. Id.
Waiver can occur by word or deed. Where there is no showing in the record that a defendant is unable to attend a deposition and he makes no objection to it proceeding, the defendant waives his right to confrontation even if the witness is unable to testify at trial. Coleman, 546 N.E.2d at 830. A defendant who calls a witness at a prior hearing waives his right to confrontation at a later trial. Hammers, 502 N.E.2d at 1344. Where defense counsel takes the depositiоn and actively participates in it, defendant is deemed to have waived his right of confrontation at trial. See e.g., Ingram, 547 N.E.2d at 826; Abner, 479 N.E.2d at 1262; Gallagher, 466 N.E.2d 1382. Where, however, neither the defendant nor his attorney were given notice of the taking of a statement, no waiver occurred. Miller, 517 N.E.2d at 73. Similarly, a defendant who had nоt waived his right to be present at his first trial had not waived the right to a face-to-face confrontation with a witness against him and, therefore, testimony of that witness who had since died could not be used on retrial. Driver, 594 N.E.2d at 490.
This constitutional framework allows the use of prior deposition testimony рrovided that the trial court finds (1) the witness is “unavailable” and (2) the statement to be used bears sufficient “indicia of reliability.” Freeman v. State (1989), Ind., 541 N.E.2d 533, 537 citing Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). The “reliability” requirement is usually satisfied where there is recorded testimony taken by defense counsel during which defense counsel comprehensively questions the witness abоut his memory and perception of the incidents surrounding the crime, possible bias, and the veracity of the testimony. Ingram, 547 N.E.2d 823, 827. In short, a deposition which comports with the principal purposes of cross-examination provides sufficient “indicia of reliability.” Id. at 827; see also Ohio v. Roberts, 448 U.S. at 67, 100 S.Ct. at 2540. The focus of the test is not upоn whether the trial court believes the witness to be telling the truth, but rather upon the process by which the prior statement was obtained.
In a criminal prosecution, the State may take and use depositions in accordance with the Indiana Trial Rules.
The court concluded that Zooks deposition showed there were “serious questions as to [his] credibility and motivation.” In doing so, the court applied an impropеr test of “reliability.” The issue is not whether the trial court believed the testimony, but whether it was obtained pursuant to procedures designed to elicit the truth. Testimony given under oath, subject to penalties of perjury and recorded by a court reporter has sufficient indicia of reliability.
In аddition, Owings waived her right of a face-to-face confrontation by failing to attend the deposition. Owings was free on bond at the time of the deposition, and we may presume that she had notice of the deposition.1 The only information in the record tending to suggest that Owings absence from the deposition was not an intentional relinquishment of a known right comes from her counsels remarks to the trial court during oral argument that he thought Owings was prohibited from attending the deposition because it took place at the Indiana Youth Center and officials had banned Owings from visiting there. However, counsel admitted that no request was made that she be allowed to enter the Indiana Youth Center or that the deposition be taken elsewhere. Under these circumstances, Owings waived her constitutional rights to confront Zook face to face.
In summary, wе hold that Zooks deposition was admissible because (1) he is unavailable, and (2) sufficient procedural safeguards were in place to assure reliability. The trial court erred in suppressing such deposition testimony.
Conclusion
Accordingly, we grant transfer, reverse the trial court and affirm the Court of Appeals.
SHEPARD, C.J., and GIVAN and DICKSON, JJ., concur.
DeBRULER, J., dissents with opinion.
DeBRULER, Justice, dissenting.
In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.
When there is judicial, legislative, and executive respect for and observance of all of the enumerated individual rights granted by this provision, the promised security will be manifest. Each such right is of the highest rank. The state constitutional waiver standard applicable to each should therefore be of the highest rank as wеll. A waiver of an