Bartruff v. State

• Decision Date: 14 September 1988
• Docket Number: No. 64A04-8708-CR-262,64A04-8708-CR-262
• Parties: Timothy J. BARTRUFF, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 110

528 N.E.2d 110

Timothy J. BARTRUFF, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 64A04-8708-CR-262.

Court of Appeals of Indiana,

Fourth District.

Sept. 14, 1988.

Rehearing Denied Oct. 26, 1988.

Thomas J. Mullins, Merrillville, Ellen S. Podgor, Bensalem, Pa., for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Presiding Judge.

Defendant-Appellant Timothy Bartruff (Bartruff) appeals his conviction of two counts of dealing in a schedule II controlled substance.

We affirm.

Bartruff presents twenty issues on appeal. Restated, they are: ¹

1. whether the trial court erred in admitting the deposition of Alex Thomas, a confidential informant who resided in another state;

2. whether the trial court erred in refusing to order the appearance of Bartruff's minor son pursuant to a subpoena;

3. whether the trial court properly refused to dismiss the charges against Bartruff based on alleged defects in the charging instruments;

4. whether the trial court erred in permitting the rebuttal testimony of a witness who was present in the courtroom during other witnesses' testimony despite the existence of a prior order for separation of witnesses;

5. whether the trial court erred in admitting testimony of previous incidents of drug dealing by Bartruff;

6. whether the trial court improperly admitted postal records to indicate the receipt of drugs through the mail;

7. whether the trial court improperly admitted the seized drugs as evidence;

8. whether there is sufficient evidence to support the verdict;

9. whether the tape recordings of the transaction were properly admitted and handled by the trial court; and

10. whether the trial court erred in allowing the jury to hear the tape recordings after retiring to the jury room.

In October, 1985, Ronald Keifer (Keifer) and Alex Thomas (Thomas), confidential informants, went to Bartruff's home where they purchased "crank", a drug containing methamphetamine hydrochloride. Keifer was wired with a recording device and Thomas with a transmitter, which enabled them to record their conversation with Bartruff.

Bartruff was charged with two counts of dealing in a schedule II controlled substance, class B felonies. After a jury trial, Bartruff was convicted of both counts and sentenced to two concurrent terms of ten years each. He now appeals.

Further facts as necessary appear below.

I.

Bartruff contends the trial court erred in permitting the State to introduce Thomas's deposition into evidence, thereby depriving him of his constitutional right to confront the witnesses against him and depriving the jury of the opportunity to observe them as they testified. The deposition was admitted because Thomas was deemed unavailable based on his residency in another state at the time of trial.

In several cases the United States Supreme Court has discussed the test for determining the unavailability of a witness. It stated a witness is not unavailable unless prosecutorial authorities make a good-faith effort to secure his presence at trial. Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597; Berger v. California (1969), 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508; Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255. (Emphasis supplied). If no possibility of procuring the witness's attendance exists, "good faith" demands nothing of the prosecution; however, if there is even a remote possibility affirmative measures will be successful, good faith may demand their effectuation. Ohio, supra. The extent to which the prosecution must go to produce a witness is a question of reasonableness. Id.

Bartruff contends Thomas's deposition was inadmissible at trial because the State failed to prove it made a "good faith effort" to procure his attendance so he could testify in person. Because the State did not petition for the issuance of a subpoena directed to Thomas to attend and testify under IND.CODE 35-37-5-5, the required showing of a good faith effort to compel Thomas's attendance was not shown, Bartruff claims. We agree.

A defendant in a criminal case has a Sixth Amendment right to personally confront the witnesses against him. Before out-of-court statements are admissible against the defendant in a criminal trial in circumvention of this right, the State must demonstrate,

(a) the witness at the time the hearsay statement was taken was subject to cross-examination by the defendant, Roberts, 100 S.Ct. at 2542-43, and

(b) it made a good faith effort to secure the witness's attendance at trial.

The mere fact a prosecution witness is out of the state is not sufficient to warrant admission of the hearsay statement. Berger, 89 S.Ct. at 541. ²

The State here argues because the witness Thomas repeatedly refused to return to Indiana to testify and stated in his deposition he would not return here for such purposes even if he were subpoenaed, the required showing of unavailability was made. We disagree.

Indiana has adopted the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, cf. IND.CODE 35-37-5-1, et seq. IND.CODE 35-37-5-5 sets out a procedure by which reluctant witnesses residing out of state may be brought into court to testify. Under that act the trial judge upon request may issue a certificate to a judge in the reciprocal state's county where the witness resides compelling such witness's appearance at trial. ³ The statute further provides if the witness so subpoenaed fails to testify, he is subject to sanctions by the court. Further, if the forwarding judge deems it necessary, he may request the witness's arrest without notice in the reciprocal state and his delivery to the requesting state's officer without bond. Cf. I.C. 35-37-5-4(c).

Here, Tennessee, Thomas's home state, was a reciprocal state, also having adopted the Uniform Act in question. Cf. Tenn.St. Sec. 40-2429, Tenn.Code Annot'd. Secs. 40-17-201 to 40-17-210.

Although we find no Indiana precedent directly on point, ⁴ we believe the minimum required to show a good faith effort in this regard is evidence the prosecution filed a petition for the issuance of a subpoena under I.C. 35-37-5-5 and continuing reasonable attempts to procure the witness's attendance at trial before his deposition is admissible, even though the witness was subject to cross-examination when the deposition was taken. Mere statements by an out-of-state witness he will not attend and testify even if subpoenaed do not satisfy the good faith effort requirement nor demonstrate the witness is unavailable. Thus, we conclude the trial court erred by admitting Thomas's deposition into evidence. However, such error is harmless.

When there is legal and competent evidence supporting the court's conclusion, a judgment will not be reversed. Batchelor v. State (1920), 189 Ind. 701, 125 N.E. 773, 778. Even when a constitutional right is invaded, we will not reverse a verdict for harmless error. Sparks v. State (1942), 220 Ind. 343, 42 N.E.2d 40, 41. When a constitutional error is found, we may still affirm when the error is harmless beyond a reasonable doubt. Hewell v. State (1984), Ind.App., 471 N.E.2d 1235, 1239.

Here, Keifer's testimony standing alone provides adequate support for the conviction. A conviction may be sustained on the uncorroborated testimony of a single witness. Mullins v. State (1987), Ind., 504 N.E.2d 570, 573. Keifer testified he was present when he and Thomas purchased crank from Bartruff. Keifer's testimony provided substantial competent evidence supporting the judgment. The trial court's error in admitting Thomas's deposition was harmless.

II.

Bartruff next contends the court erred in refusing to order the production of his minor son who was present at the drug transaction. During the trial, Bartruff served a subpoena on his ex-wife to compel the appearance of their seven year old son. The child was not listed on Bartruff's witness list. The trial judge instructed Bartruff's ex-wife the child need not appear. Bartruff argues he was denied his Sixth Amendment right to present witnesses on his behalf.

While a witness may be excluded from testifying, witness exclusion should not be employed unless the defendant's breach was purposeful or intentional or unless substantial and irreparable prejudice would result to the State. Wiseheart v. State (1986), Ind., 491 N.E.2d 985, 991. When a defendant seeks to call a previously undisclosed witness, he must make an offer of proof on the nature of the proffered testimony. Id. If he does not make an offer of proof, he has not adequately preserved the issue for appellate review. Id.

Here, Bartruff had knowledge of his son's potential testimony more than six months prior to the date of trial, yet he waited until the middle of the State's case to inform the court and the State of his desire to call his son as a witness. Bartruff's breach was intentional. Further, he failed to include his son's name on his list of witnesses. The trial court did not err in excluding the witness.

III.

Bartruff next argues the trial court erred in denying his motion to dismiss based on duplicity in the informations and a resulting failure to apprise him of the crimes with which he was charged. The wording of the informations is identical and states, in pertinent part:

Timothy J. Bartruff ... on or about the 23rd day of October A.D. 1985 ... knowingly or intentionally deliver (sic) a controlled substance classified in Schedule II, to-wit: methamphetamine hydrochloride, ...

Bartruff contends the informations fail to state the nature, the times and the places of the offenses, as required by IND.CODE 34-34-1-2.

The purpose of an information is to inform the court of the facts alleged and furnish the defendant with a description of the charges against him so he may prepare his defense. Trotter v. State (1981), Ind., ...