Jones v. State
| Decision Date | 23 February 1983 |
| Docket Number | No. 182S33,182S33 |
| Citation | 445 N.E.2d 98 |
| Parties | Irvin JONES, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant, Irvin Jones, was convicted of the crime of child molesting, Ind.Code Sec. 35-42-4-3, in a trial to the Grant County Circuit Court on September 2, 1981. He was sentenced to a term of twenty (20) years by the trial judge.
Appellant raises two issues for our review in this direct appeal: 1) error of the trial court in refusing to allow Jones to be present during the taking of certain depositions; and 2) sufficiency of the evidence.
Appellant was charged with unlawfully submitting to deviate sexual conduct by having his eleven year-old daughter, R.J., perform oral sex on him. R.J., and her thirteen year-old sister, B.J., both testified that their father had committed various sex acts on them numerous times, including oral sex, vaginal and anal intercourse. Mike Humphrey, Appellant's son, and a half-brother to R.J., testified that in March, 1981, he went into Appellant's bedroom and observed R.J. performing oral sex on the appellant. Mike Humphrey, R.J., and B.J. all testified at the trial. Appellant also testified in his own behalf and claimed none of these statements were true but were fabricated by Mike and the girls to get even with him for his attempts to discipline them. He further testified that the truth was the girls were in love with Mike and that there was sexual activity going on between Mike and the two girls.
On June 3, 1981, Appellant Jones' counsel filed a Notice for Deposition of the State's prosecuting witnesses, Michael Humphrey, R.J., and B.J. Prior to the taking of these depositions, Appellant filed a petition requesting his presence at the depositions, claiming it was necessary for him to be present to aid his counsel in the examinations. The court held a hearing on August 19, 1981, on Appellant's petition to be present and denied the petition.
As Appellant concedes, this Court held in Bowen v. State, (1975) 263 Ind. 558, 334 N.E.2d 691, that refusal to permit a defendant to be present at the taking of a deposition did not deny him his right to confrontation of witnesses guaranteed by Art. I, Sec. 13 of the Indiana Constitution. Id. at 564, 334 N.E.2d at 695. The situation in Bowen was very similar to this case. In Bowen there was no request by the defendant to be present but the court on its own motion, ordered the depositions of two female infant victims to be taken without the presence of the defendant. In finding that the trial court did not commit error in so doing this Court stated:
Hence there was no violation of Art. 1, Sec. 13 in denying the appellant the right to be present at the depositions.
It was further held in Bowen, that the fact that the defendant was not present, thereby restricting his ability to aid his counsel in the examinations, was not sufficient prejudice or restriction to be error. Appellant claims the situation is different here since unlike the appellant in Bowen, supra, Appellant did request to be present at the taking of the depositions and was refused the right to do so. We see no reason for a different holding here. We have no record of the court's hearing in regard to Appellant's petition to be present so we do not know the reasons given by the court for refusing his presence. It is reasonable to assume, however, that the court felt that the presence of Appellant would be intimidating to the witnesses because of their relationship to him and their tender age. Appellant further urges us to change our rule since it is possible to use a deposition of a witness at the trial in lieu of the witness' physical presence. In that event, the absence of the appellant at the deposition could result in the witness never having to look the appellant in the eye and testify against him. Appellant refers us to Fed.R.Crim.P. 15(b), which requires the presence of a defendant at the taking of depositions unless he waives the right or engages in disruptive conduct. In United States v. Benfield, (8th Cir.1979) 593 F.2d 815, a deposition of the prosecuting witness was taken with the defendant in another room watching a video monitor without the witness even knowing the defendant was present. This was done on the basis of a...
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Long v. State
...recording of child's interview with police admissible since child testified at trial and was thoroughly cross-examined); Jones v. State, 445 N.E.2d 98 (Ind.1983) (deposition taken in defendant's absence admissible since deponent testified at Further, as one commentator noted, requiring the ......
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Steven Church v. State
...Butler v. State, 97 Ind. 378 (1884)), the right "does not exist when the deposition of a witness is taken," id. (citing Jones v. State, 445 N.E.2d 98 (1983); Bowen v. State, 263 Ind. 558, 334 N.E.2d 691 (1975)). Church's confrontation rights will be secured at trial but are not implicated h......
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Rita v. State
...situation, this Court has held that pretrial depositions are not critical stages of a case requiring a defendant's presence. Jones v. State, 445 N.E.2d 98 (Ind.1983). In the case at bar, only one of the subpoenaed witnesses failed to testify at trial. All other witnesses did testify at tria......
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Gallagher v. State
...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 t......