Gallagher v. State, No. 1-184A19

Docket NºNo. 1-184A19
Citation466 N.E.2d 1382
Case DateAugust 14, 1984
CourtCourt of Appeals of Indiana

Page 1382

466 N.E.2d 1382
Michael GALLAGHER, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 1-184A19.
Court of Appeals of Indiana,
First District.
Aug. 14, 1984.

Page 1384

Priscilla L. Seaborg, Monroe County Deputy Public Defender, Bloomington, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Michael Gallagher appeals from a conviction for forgery, a class C felony. We affirm.

FACTS

Michael Gallagher was arrested with William McBride for forging a doctor's signature on a prescription for Talwin. 1 The prosecution entered into a plea agreement with McBride in exchange for his testimony at trial against Gallagher. Record at 492-93. Less than a week before trial, defense counsel took the deposition of McBride in the presence of the state but Gallagher, the defendant, was absent. McBride was questioned only by defense counsel during the deposition. On the first day of the trial, McBride did not appear despite the issuance of a subpoena. On the second day, a police officer testified as to his inability to locate McBride and the state moved to admit the witness' deposition pursuant to Indiana Rules of Procedure, Trial Rule 32. The deposition, which was the state's only direct evidence against Gallagher, was admitted into evidence over the objections of defense counsel that T.R. 32 was not satisfied and that Gallagher's confrontation right was violated because he was never provided with the opportunity to confront McBride face-to-face. The jury convicted Gallagher of forgery and he appeals.

ISSUES

The issues presented for review are restated as follows:

1. Did the admission at trial of a deposition requested, and taken, by defense counsel but outside the presence of the defendant violate the Indiana and United States Constitutional guarantee of confrontation?

2. Did the trial court err in finding that the testimony of the witness was admissible pursuant to T.R. 32?

Page 1385

DISCUSSION AND DECISION

Issue One

Gallagher initially claims that his right of confrontation was violated because he was absent when the deposition was taken. 2 The defendant argues that he had a right to be present during the deposition because it constituted a critical stage in the proceedings against him. Childers v. State, (1980) Ind.App., 408 N.E.2d 1284. We have found no Indiana case that provides a defendant the right to be present at a deposition taken prior to the actual trial. Jones v. State, (1983) Ind., 445 N.E.2d 98. The right to be present during all critical stages of the proceedings requires only that the defendant be present during his trial. Illinois v. Allen, (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, reh. denied 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80; Snyder v. Massachusetts, (1934) 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; Bowen v. State, (1975) 263 Ind. 558, 564, 334 N.E.2d 691, 695. See also, State v. Dolen, (1980) Fla.App., 390 So.2d 407.

The next argument raised by Gallagher poses a much more difficult question. He argues that the deposition should not have been admitted because he never had the opportunity to physically confront McBride. It has been held that before a deposition can be used against a defendant at trial, confrontation requires the defendant to have been present at the deposition. United States v. Benfield, (8th Cir.1979) 593 F.2d 815; Collins v. State, (1971) 12 Md.App. 239, 278 A.2d 311, aff'd 265 Md. 70, 288 A.2d 163 (1972). However, these cases are distinguishable because both involved situations where the deposition was taken at the request of the prosecution for the purpose of preserving the witness' testimony for admission at trial as a substitute for live testimony. We believe, although it is unnecessary for us to decide, that when the state takes a witness' deposition to perpetuate the testimony for use at trial, the defendant and his counsel should be given notice of the deposition and an opportunity to confront and cross-examine the witness. See Indiana Rules of Procedure, Trial Rule 30(B); see also, Federal Rules of Criminal Procedure 15. See State v. Wilkinson, (1980) 64 Ohio St.2d 308, 415 N.E.2d 261; cf. Jones, 445 N.E.2d at 100. If this procedure is followed the trend is to allow the deposition to be admitted at trial as substantive evidence if the witness is unavailable. Ohio v. Roberts, (1980) 448 U.S. 56, 73, 100 S.Ct. 2531, 2542-43, 65 L.Ed.2d 597, 612 (preliminary hearing testimony subject to cross-examination admissible); United States v. Knop, (7th Cir.1983) 701 F.2d 670; United States v. Steele, (3rd Cir.1982) 685 F.2d 793, cert. denied 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170. Indeed, we believe that the admission of a deposition at trial which was taken in the absence of the defendant or his counsel could be so fundamentally unfair as to violate the defendant's due process rights. California v. Green, (1970) 399 U.S. 149, 186 n. 20, 90 S.Ct. 1930, 1950 n. 20, 26 L.Ed.2d 489, 513 (Harlan, J., concurring).

However, in the present case McBride's deposition was not taken at the request of the prosecution and was not taken to preserve testimony for trial. Defense counsel requested the deposition and conducted it. The fact that the state never even asked questions during the deposition

Page 1386

indicates the prosecution expected the witness to appear at trial. Therefore, the deposition was not the type which required the presence of the defendant to satisfy confrontation. Furthermore, the confrontation clause has never been held to be absolute. Ohio v. Roberts, 448 U.S. at 63, 100 S.Ct. at 2537, 65 L.Ed.2d at 605-06; Mattox v. United States, (1895) 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409, 411; Alspach v. State, (1982) Ind.App., 440 N.E.2d 502. For us to hold under the facts presented that the lack of a face-to-face confrontation between Gallagher and McBride violated confrontation would be contrary to existing precedent. Dutton v. Evans, (1970) 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (hearsay admissible); United States v. Garner, (4th Cir.1978) 574 F.2d 1141, cert. denied 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (grand jury testimony admissible); United States v. West, (4th Cir.1978) 574 F.2d 1131 (grand jury testimony admissible); Alspach, 440 N.E.2d at 502 (hearsay admissible). Hearsay is generally admissible if it meets a well-rooted hearsay exception despite the fact that the one who makes the statement never comes face-to-face with the defendant. See generally, Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608; see also United States v. Carlson, (8th Cir.1976) 547 F.2d 1346, 1355-60, cert. denied 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224. Similarly, under the circumstances of this case, confrontation was not violated even though Gallagher never had an opportunity to physically confront McBride.

Next we must determine whether the admission of the deposition at trial violated confrontation. Prior to 1982, Indiana Code section 35-1-31-8 provided that when defense counsel takes a deposition on behalf of the defendant, any objection based on confrontation is waived if the state subsequently seeks to admit the deposition at trial. 3 Roberts v. State, (1978) 268 Ind. 348, 354-55, 375 N.E.2d 215, 220. In Roberts v. State, the deposition at issue was taken by defense counsel prior to the trial of a separate charge of theft and used against the...

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21 practice notes
  • People v. McClendon, No. 4-89-0500
    • United States
    • United States Appellate Court of Illinois
    • May 9, 1990
    ...presence, do not violate his confrontation rights. (See Coleman v. State (Ind.1989), 546 N.E.2d 827; Gallagher v. State (Ind.App.1984), 466 N.E.2d 1382; State v. Wells (Iowa 1989), 437 N.W.2d 575.) However, other courts have found a defendant must waive his presence at the deposition prior ......
  • Iseton v. State, No. 2-883A295
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 1984
    ...testimony was described by the Seventh Circuit Court of Appeals in its opinion in United States v. Wolff. See also Gallagher v. State, 466 N.E.2d 1382 (Ind.App.1984). The first part of the test requires the prosecution to "either produce or demonstrate the unavailability of the declarant wh......
  • Abner v. State, No. 383
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 1985
    ...the deposition at trial. Roberts v. State (1978), 268 Ind. 348, 354-355, 375 N.E.2d 215, 220. In Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382, 1386, our Court of Appeals determined that even though Ind.Code Sec. 35-1-31-8 has been repealed, the holding of Roberts is still controllin......
  • Ingram v. State, No. 49S00-8610-CR-936
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1989
    ...v. State (1985), Ind., 479 N.E.2d 1254; Roberts v. State (1978), 268 Ind. 348, 375 N.E.2d 215; Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382. See also Hammers v. State (1987), Ind., 502 N.E.2d Furthermore, separate and apart from the issue of waiver, the defendant's right of confront......
  • Request a trial to view additional results
21 cases
  • People v. McClendon, No. 4-89-0500
    • United States
    • United States Appellate Court of Illinois
    • May 9, 1990
    ...presence, do not violate his confrontation rights. (See Coleman v. State (Ind.1989), 546 N.E.2d 827; Gallagher v. State (Ind.App.1984), 466 N.E.2d 1382; State v. Wells (Iowa 1989), 437 N.W.2d 575.) However, other courts have found a defendant must waive his presence at the deposition prior ......
  • Iseton v. State, No. 2-883A295
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 1984
    ...testimony was described by the Seventh Circuit Court of Appeals in its opinion in United States v. Wolff. See also Gallagher v. State, 466 N.E.2d 1382 (Ind.App.1984). The first part of the test requires the prosecution to "either produce or demonstrate the unavailability of the declarant wh......
  • Abner v. State, No. 383
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 1985
    ...the deposition at trial. Roberts v. State (1978), 268 Ind. 348, 354-355, 375 N.E.2d 215, 220. In Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382, 1386, our Court of Appeals determined that even though Ind.Code Sec. 35-1-31-8 has been repealed, the holding of Roberts is still controllin......
  • Ingram v. State, No. 49S00-8610-CR-936
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1989
    ...v. State (1985), Ind., 479 N.E.2d 1254; Roberts v. State (1978), 268 Ind. 348, 375 N.E.2d 215; Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382. See also Hammers v. State (1987), Ind., 502 N.E.2d Furthermore, separate and apart from the issue of waiver, the defendant's right of confront......
  • Request a trial to view additional results

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