Jackson v. State

• Decision Date: 04 October 2000
• Docket Number: No. 43S00-9903-CR-196.,43S00-9903-CR-196.
• Citation: 735 N.E.2d 1146
• Parties: Edward Lee JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

735 N.E.2d 1146

Edward Lee JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 43S00-9903-CR-196.

Supreme Court of Indiana.

October 4, 2000.

Christopher D. Kehler, Kehler Law Office, P.C., Warsaw, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

RUCKER, Justice

After a trial by jury Edward Lee Jackson was convicted of child molesting as a Class A felony and also was adjudged a habitual offender. In this direct appeal, Jackson raises four issues for our review which we rephrase as follows: (1) was Jackson denied the right of confrontation when the trial court admitted into evidence the deposition testimony of a police witness in lieu of live testimony; (2) did the trial court err by admitting into evidence the results of Jackson's polygraph examination and related exhibits; (3) did the trial court err by admitting into evidence Jackson's inculpatory statement; and (4) did the trial court abuse its discretion when sentencing Jackson. We affirm.

Facts

The record shows that over a period of approximately seven years, Jackson occasionally lived with his girlfriend and her minor daughter, E.C. On several occasions during that period, thirty-plus year old Jackson engaged E.C. in sexual intercourse. The first assault occurred when E.C. was only five years of age. The last took place in March 1997 when E.C. was eleven. During their investigation, officers of the Warsaw Police Department confronted Jackson concerning the child molesting allegations. Jackson initially denied the allegations and agreed to take a polygraph test. After the test indicated deception, Jackson admitted engaging E.C. in sexual intercourse but claimed it occurred only once and not numerous times as alleged. He also claimed the one occasion did not happen in March 1997. The State charged Jackson with child molesting as a Class A felony. The State also alleged that Jackson was a habitual offender based on two prior convictions for child molesting. In the guilt phase of trial, the State introduced into evidence the results of the polygraph examination and related exhibits along with Jackson's incriminating statement. Because the officer who conducted the polygraph examination was not present for trial, the State moved to introduce the officer's deposition testimony. The trial court granted the motion over Jackson's objection. The jury returned a verdict of guilty as charged and also adjudged Jackson a habitual offender. The trial court sentenced Jackson to the maximum term of fifty years for child molesting enhanced by an additional thirty years for the habitual offender adjudication. This direct appeal followed. Additional facts are set forth below where relevant.

Discussion

I.

Jackson first contends that he was denied the right of confrontation when the trial court admitted into evidence the deposition testimony of the polygraph examiner in lieu of the officer's live testimony. The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him." The Fourteenth Amendment makes this right of confrontation applicable to the states.¹ Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Owings, 622 N.E.2d 948, 950 (Ind.1993). The essential purpose of the Sixth Amendment right of confrontation is to insure that the defendant has the opportunity to cross-examine the witnesses against him. Id.

As a general rule the deposition testimony of an absent witness offered in court to prove the truth of the matter asserted represents classic hearsay. However, under both Indiana Trial Rule 32 and Indiana Evidence Rule 804 this hearsay testimony may be admissible as evidence at trial as an exception to the hearsay rule.² Nonetheless, the Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay: (1) the hearsay must bear a sufficient indicia of reliability, and (2) the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Owings, 622 N.E.2d at 952; compare White v. Illinois, 502 U.S. 346, 356-57, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)

(limiting the reach of Roberts to statements given in a prior proceeding). A deposition that comports with the principal purposes of cross-examination provides sufficient indicia of reliability. Owings, 622 N.E.2d at 952; Roberts, 448 U.S. at 71,

100 S.Ct. 2531 (observing that the principal purpose of cross-examination is to challenge "whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter related, and whether the declarant's intended meaning is adequately conveyed by the language he employed") (quoting David S. Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 HARV. L.REV. 1378 (1972)).

The record shows that in a motion to suppress hearing conducted in September 1997, the polygraph examiner revealed that he no longer was employed by local law enforcement. Rather, he was scheduled to begin working with the United States Secret Service. Although the record is not completely clear, apparently this information prompted the State to schedule the officer's evidentiary deposition which was taken sometime in November 1997. Defense counsel was given appropriate notice, and the State transported the officer from Glenco, Georgia, the site of the officer's Secret Service training. The record shows that in addition to the officer's testimony that Jackson was being deceptive regarding his denial of sexual contact with E.C., the State also elicited testimony laying a foundation for the admission of four exhibits into evidence: (1) a polygraph interview outline, showing a checklist of topics the officer discussed with Jackson before the polygraph examination began; (2) a form entitled "consent to submit to polygraph examination" which included a Miranda advisement and bore Jackson's signature; (3) a form entitled "waiver of objection to use of results of polygraph" which also included a Miranda advisement and bore Jackson's signature and the signature of the prosecuting attorney; and (4) a post-examination report declaring that Jackson was not "totally truthful" in response to questions concerning whether he engaged in sexual activity with E.C. The record also shows that although Jackson was not present for the deposition,³ his counsel did attend and comprehensively examined the officer concerning his training, competency, validity of polygraphs, and the conclusions on which the officer's opinions were based. R. at 312-22. We are satisfied that the deposition in this case comported with the principal purposes of cross-examination and thus provided sufficient indicia of reliability.

We have a different view however on the question of whether the officer was unavailable. "[A] witness is not `unavailable' for purposes of ... the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Robert, 448 U.S. at 74, 100 S.Ct. 2531 (quoting Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)). The record shows that at the time of trial in March 1998 the officer in question was present in the nation's capital attending a Secret Service training session. The deputy prosecutor conceded to the trial court, "I cannot tell the Court we couldn't get him here, we could." R. at 298. The State argued however that transporting the officer to Indiana for trial would result in the officer falling behind in his course work, and relying on Indiana Trial Rule 32(A), the State also noted that the officer was unavailable because he was outside the state. R. at 298. On this latter point we observe that Rule 32(A) is not applicable to claims involving a violation of a defendant's Sixth Amendment right of confrontation. Rather, the inquiry is whether the State has made a good faith effort to obtain the absent witness' attendance at trial. Here, the State made no effort to obtain the officer's attendance, good faith or otherwise. Accordingly, the officer was not unavailable, and admitting his deposition testimony into evidence was error because it ran afoul of Jackson's Sixth Amendment right of confrontation. Nonetheless, a denial of the right of confrontation is harmless error where the evidence supporting the conviction is so convincing that a jury could not have found otherwise. Walker v. State, 607 N.E.2d 391, 396 (Ind.1993). The evidence in this case meets the foregoing standard. The record shows that E.C. testified at trial and recounted Jackson's long history of forcing her to engage in sexual intercourse. Her testimony was not shaken on cross-examination. Among other things, E.C. testified the sexual assaults occurred at home on dates when her mother was attending school. The State introduced evidence demonstrating that E.C.'s mother was absent from the home and attending classes on the dates E.C. mentioned. The State also showed that Jackson was present in the home on those occasions. A physician who examined E.C. testified that her hymen was not intact. Although the physician acknowledged that he could not say that sexual intercourse caused the disruption, he testified that the disruption was consistent with multiple instances of sexual intercourse. R. at 353. Convictions for child molesting may rest upon the uncorroborated testimony of the victim. Barger v. State, 587 N.E.2d 1304, 1308 (Ind.1992). In this case, other witnesses corroborated E.C.'s testimony. Further, although we discuss the...