Brittain v. State

• Decision Date: 31 January 2017
• Docket Number: Court of Appeals Case No. 49A02-1511-CR-1784
• Citation: 68 N.E.3d 611
• Parties: Kenneth BRITTAIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

68 N.E.3d 611

Kenneth BRITTAIN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 49A02-1511-CR-1784

Court of Appeals of Indiana.

January 31, 2017

Attorney for Appellant : John (Jack) F. Crawford, Indianapolis, Indiana.

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, Indiana.

Brown, Judge.

[1] Kenneth Brittain appeals his convictions for murder and attempted murder as a class A felony. Brittain raises three issues which we revise and restate as:

I. Whether the court's admission of deposition testimony violated Brittain's right of confrontation;

II. Whether the court abused its discretion in admitting deposition testimony into evidence; and

III. Whether the court erred by denying Brittain's motion for a mistrial.

We affirm.

Facts and Procedural History

[2] On April 26, 2013 at approximately 10:31 p.m., Indianapolis Metropolitan Police Department ("IMPD") Officer Joel Anderson responded to a call of shots fired in Indianapolis, Indiana, and upon arriving observed a pickup truck, which was still smoking, driven through the wall of an apartment building. Inside the truck, Officer Anderson observed a male, later identified as Timothy Denny, who had been fatally shot twice in the back of the head, behind the steering wheel. He also observed a female victim lying outside the building on the ground who was alive, bleeding from the face and neck area, and crying, and she identified herself as Victoria Richie. IMPD Officer David Carney, who had also arrived at the scene, spoke with Richie, who said she had been shot, and when asked her who did it she said "it was Bart." Transcript at 144, 149. Richie gave a description of "Bart" as an African-American male with burn marks on his face. Id. at 149. Richie was transported to Wishard Hospital.

[3] IMPD Detective Greg Hagan had just "logged on," meaning he "got on [his] radio and marked on duty" when he heard a dispatch about a shooting, and "[s]hortly thereafter" he was asked to check on one of the victims at Wishard Hospital. Id. at 172-173. He proceeded to "the shock room wing" at the hospital where he met Officer Aaron Schlesinger, who had followed the ambulance from the scene of the shooting. Id. at 173. After receiving an initial rundown from Officer Schlesinger, Detective Hagan went into the shock room and met Richie. Detective Hagan attempted to interview her at the hospital, but she had a difficult time speaking because she had been shot through the mouth. To accommodate her injury, Detective Hagan asked Richie to write down her answers to his questions on a piece of paper. Detective Hagan asked Richie who had shot her and she wrote down "Ken Bart."¹ Id. at 183; see also State's Exhibit 11.

[4] Police recovered a cell phone later identified as belonging to Brittain from the back seat of the pickup truck. They also examined Richie's cell phone. Police obtained cell tower records, text message records, and Facebook instant message records from the two phones, and they were able to extract the messages and show a pattern of activity between the phones throughout the day on April 26, 2013, ending at about 10:15 p.m.

[5] On April 28, 2013, IMPD Detective Chuck Benner spoke with a confidential informant with whom he had been associated for at least ten years, and, following the conversation, he drove to a vehicle and recovered a handgun which was located on the front seat and had a magazine next to it. The handgun was identified as a Walther .22 caliber semi-automatic. Police later matched the gun with shell casings recovered from the pickup truck.

[6] On April 30, 2013, the State charged Brittain with Count I, murder; and Count II, attempted murder as a class A felony. On January 23, 2014, Brittain's defense counsel deposed Richie. Richie later died.² On July 29, 2015, the State filed a list of witnesses which included Richie by her deposition as a potential witness. At a pretrial conference held on July 31, 2015, the court addressed a motion to exclude Richie's deposition filed by Brittain. Brittain agreed that Richie was "unavailable" for purposes of Ind. Evidence Rule 804, but he argued that its admission would violate his confrontation rights under the Sixth Amendment and Article 1, Section 13 of the Indiana Constitution. After hearing argument, the court denied his request to exclude the deposition. Brittain then asserted that the deposition lacked "indicia of reliability" because Richie "never signed or reviewed the deposition." Transcript at 9. The State responded that the deposition lasted nearly two hours and resulted in 110 pages and argued that "the fact that she was there, she was sworn to an oath to tell the truth and was, had every opportunity ... to examine her," and that accordingly the deposition was reliable. Id. at 10. The court again denied Brittain's motion to exclude.

[7] On September 28, 2015, the court commenced a jury trial. At trial, the State introduced the deposition of Richie. Brittain objected to the admission of the deposition, stating:

I believe it's a violation under the sixth amendment to the U.S. Constitution and Article I, Section 13 of the Indiana Constitution in regards to the right of Mr. Brittain to confront and cross examine witnesses and have a face-to-face confrontation with the witness and I would incorporate my previous argument and case law from the hearing on July 31st of this year.

Id. at 159-160. The court overruled Brittain's objection and allowed the State to read a redacted version of the deposition to the jury.

[8] In her deposition, Richie stated that she had first met up with the person she knew as Ken Bart on Facebook when she posted on the website that she was interested in purchasing drugs in 2013. She testified that, on April 26, 2013, the day of the shooting, she owed Brittain $200 for cocaine and had devised a plan to sell or give Brittain Xanax to pay off the debt and come away with some additional money. She stated that she and Brittain had texted and sent messages using Facebook during that day and that earlier in the day Denny called off the meeting because he had a "bad feeling" about the place. State's Exhibit 137(a) at 63. However, Denny and Richie later decided that they "needed the money" and rescheduled the meeting. Id. at 76.

[9] Richie testified that they picked up Brittain on the evening of April 26, 2013, that Denny was in the driver's seat, she was in the front passenger's seat, and Brittain was in the back seat, and that Brittain counted the Xanax

pills and placed them in a bag. She stated that, afterward, she turned around and observed a gun pointed at her face, that Denny turned, that Brittain shot Denny twice in the back of the head, and that he then shot her in the face.

[10] During the trial, Brittain objected when the State offered, as State's Exhibit 11, the handwritten answers of Richie that she provided to Detective Hagan in the shock room of the hospital on the grounds that it was inadmissible hearsay testimony. The court overruled Brittain's objection, relying upon Ind. Evidence Rule 801(d)(1)(C)³ , and admitted the exhibit. The following morning, the court returned to the subject, stating that it "went through the manual" and noted that the notes could only be admitted under Rule 801(d)(1)(C)"if the witness is present and available for cross examination." Transcript at 263. The prosecutor responded that the deposition satisfied that requirement, but the court disagreed. The court noted that, nevertheless, it believed the notes were "surplusage." Id. It stated that it could not "unring the bell," but it instructed the State to "think a little bit more before you use that exception when the witness himself or herself is not present." Id. at 265. Brittain moved for a mistrial, which the court denied.

[11] The jury found Brittain guilty as charged. On October 16, 2015, the court sentenced Brittain to fifty-five years on Count I, and thirty years, with twenty-five years executed and five years suspended, on Count II, to be served consecutively.

Discussion

I.

[12] The first issue is whether the court's admission of Richie's deposition testimony violated Brittain's right of confrontation. Generally, we review the trial court's ruling on the admission of evidence for an abuse of discretion. Noojin v. State , 730 N.E.2d 672, 676 (Ind. 2000). However, here because the issue is one of constitutional law, we review Brittain's claim de novo . See Jones v. State , 982 N.E.2d 417, 421–422 (Ind. Ct. App. 2013) (constitutional challenges are reviewed de novo ), trans. denied .

[13] The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST . amend. VI. "A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." Lehman v. State , 926 N.E.2d 35, 39 (Ind. Ct. App. 2010) (citing Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ), reh'g denied , trans. denied ; see also Davis v. Washington , 547 U.S. 813, 821–822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

[14] Brittain argues that "[e]very trial lawyer and trial judge knows that there is a difference between a ‘discovery’ deposition and a ‘trial’ deposition" in that "[t]he motives are entirely different." Appellant's Brief at 18. He contends that a "discovery deposition" is "not intended to be ‘confrontational’ because the deposing party wishes to encourage the witness to volunteer as much information as he or she can." Id. Brittain acknowledges that the Indiana Supreme Court in Howard v. State , 853 N.E.2d 461 (Ind. 2006), rejected this difference as creating a confrontation issue, but he asserts that...