Sawyer v. State

• Decision Date: 19 May 2021
• Docket Number: Court of Appeals Case No. 20A-CR-1446
• Citation: 171 N.E.3d 1010
• Court: Indiana Appellate Court
• Parties: Donnie Louis SAWYER, Appellant, v. STATE of Indiana, Appellee.

171 N.E.3d 1010

Donnie Louis SAWYER, Appellant,

v.STATE of Indiana, Appellee.

Court of Appeals Case No. 20A-CR-1446

Court of Appeals of Indiana.

FILED May 19, 2021

Attorneys for Appellant: Mark E. Kamish, Maxwell B. Wiley, Baldwin Perry & Kamish, P.C., Franklin, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[1] In this interlocutory appeal Donnie Louis Sawyer challenges the validity of Ind. Code § 35-40-5-11.5, which became effective on March 18, 2020, and argues the statute, which restricts a defendant's ability to take the deposition of a child less than sixteen years of age who is the victim or alleged victim of a sex offense, conflicts with the Indiana Trial Rules. We agree and reverse.¹

Facts and Procedural History

[2] In 2019, the State charged Sawyer with two counts of child molesting: as a level 1 felony committed against D.S., who was seven or eight years old during the charged events, and as a level 4 felony committed against A.S., who was nine years old during the charged events.²

[3] Prior to the State charging Sawyer, D.S. and A.S. were interviewed on March 8, 2019, at the Cherish Center, and they provided statements that they had been molested. That same day, a detective interviewed a parent of the children who stated that D.S. and A.S. wore diapers several months earlier, they had not worn them in months, and Sawyer "has a diaper fetish and watches diaper pornography all the time." Appellant's Appendix Volume II at 20. Also according to the probable cause affidavit, Sawyer was interviewed in April 2019 at the Department of Child Services office, voluntarily waived his rights when advised, denied ever touching the children inappropriately, said he and his wife had a bed in the living room at the residence and the children slept with them a couple times, and admitted he has a diaper fetish.

[4] On July 19, 2019, the State filed a discovery response and notice of compliance indicating it provided defense counsel a recorded video interview of Sawyer, recorded video child forensic interviews, and various paperwork and documents. Sawyer moved for continuances in September and November 2019, which the court granted.

[5] On March 3, 2020, Sawyer filed a Motion for Order Authorizing Public Funding for Discovery Expenses, which requested public funds to obtain sworn testimony of up to ten witnesses, including the two children, which the court granted two days later. On March 6, 2020, the State filed a supplementary discovery notice indicating it provided defense counsel with "Noblesville Police Department Incident/Investigation Report 08-001288." Id. at 66.

[6] On March 17, 2020, the prosecuting attorney sent defense counsel a message stating that, as far as scheduling the depositions of the State's witnesses, she did not have dates available for the following week any longer, "so we would need to go into early April," and indicating that, if defense counsel would inform her of dates that worked in April, they could "at least tentatively plan the depositions." Id. at 113.

[7] Ind. Code § 35-40-5-11.5 became effective on March 18, 2020. See Pub. L. No. 62-2020, §§ 8-9 (2020). On March 19, 2020, the prosecuting attorney sent defense counsel an email message which referenced the March 17, 2020 message and stated:

I need to add to this e-mail that I do not agree to [redacted] and [redacted]^{[3 ]} being deposed in this case. [I]t's my understanding that the new statute ( IC 35-40-5-11.5 ) is in effect as of yesterday. I'm not doing this to be difficult; it's that I have never viewed multiple-hour depositions of young children as being reasonable or fair to them. Under the new statute, depositions of child victims of sex crimes are not to be conducted unless either a) the prosecutor agrees, or b) in "extraordinary circumstances and in the interest of justice" (as specifically found and ordered by a court), and I don't believe there are any such circumstances here – for good or ill, it's a very typical child molest case. I am guessing that you most likely feel differently about all of that, so if we need to go through the statutory procedures and get a ruling from the court, I understand completely.

Appellant's Appendix Volume II at 113.

[8] On April 6, 2020, Sawyer filed a Petition for Authorization to Depose Child Accusers, in which he referenced Ind. Code § 35-40-5-11.5, the Indiana Trial Rules, the state and federal constitutions, and his communication with the prosecuting attorney. He argued subsections (c) and (d)(1) of the statute could be used by a prosecutor to completely block a defendant from taking the depositions of child communicators, such a block occurred in his case, and

Indiana Code § 35-40-5-11.5(e) having now been triggered, the Defendant respectfully petitions the Court for authorization to depose D.S. and A.S. under Indiana subsections (d)(2) and (d)(3). [ ] The Defendant asks the Court, pursuant to subsection (e), to notify the [ ] Prosecutor and set the mandatory hearing.

Id. at 79. On April 7, 2020, the court set a hearing for May 14, 2020, to determine whether to authorize the depositions of the children and, if applicable, the manner of the depositions.

[9] On April 24, 2020, Sawyer filed a Demand for Authorization to Depose Child Accusers and Objection to a Prerequisite I.C. 35-40-5-11.5 Hearing, in which he indicated he now objected to the hearing he previously requested because the evidentiary showing and burden of proof placed upon him was unfair. He attached the correspondence with the prosecuting attorney and moved the court to authorize the taking of the children's depositions without a hearing.

[10] On April 27, 2020, the court confirmed the May 14th hearing. In the interim, the State filed responses to Sawyer's April 6th and 24th pleadings, to which Sawyer filed a reply and supplemental brief. Following the hearing and additional briefing, the court held another hearing on June 18, 2020, at which it denied Sawyer's request and stated:

On the ... issue of the deposition, it is true that rules, supreme court promulgated rules generally trump statutes when there is a direct conflict. When there isn't a direct conflict I believe it is also true that courts try mightily to allow both the statute and the rule [to] coexist. And I have a rule that of course allows for preparation of discovery and I have a statute that talks about preventing a certain type of discovery in certain situations with exceptions. I think I can allow them to coexist by in this particular situation refusing the Defense's request to allow the deposition of the victim.... I will deny [the] request to depose the child victims.

Transcript Volume II at 32-33. On June 24, 2020, the court issued an order denying Sawyer's Petition for Authorization to Depose Child Accusers "as discussed on the record" at the June 18, 2020 hearing. Appellant's Appendix Volume II at 185. Upon certification of the interlocutory order, this Court accepted jurisdiction over the appeal.

Discussion

[11] Sawyer argues that, in this case of first impression, the trial court abused its discretion in denying him an opportunity to depose the children. Specifically, he argues that Ind. Code § 35-40-5-11.5 restricts the use of depositions, "significantly alters the ability of those accused of ... particular sex crimes to investigate the allegations against them," and irreconcilably conflicts with the Ind. Trial Rules and, thus, is without force or effect. Appellant's Brief at 12. He claims it "simultaneously and unlawfully imposes new burdens" on him as he seeks to depose the children, "thus restricting his access to critical pre-trial discovery," a burden "at odds and incompatible with clear and unambiguous rules for discovery depositions" through Indiana's Trial Rules. Id.

[12] The State contends the court did not err and argues in essence that Ind. Code § 35-40-5-11.5 is a substantive provision and "part of a deliberate decision by the General Assembly to address the rights of Children affected by vigorous litigation over a crime." Appellee's Brief at 22. It argues that the statute substantively protects children from the experience of a deposition which, in the context of the litigation environment, is "free to delve into any and every aspect of a child's life and experiences that fits into the far-reaching phrase ‘relevant to discovery.’ " Id. at 23 (internal quotations removed).

[13] The Indiana Supreme Court "has recognized on multiple occasions that the Indiana Trial Rules ‘are designed to allow liberal discovery.’ " Beville v. State , 71 N.E.3d 13, 18 (Ind. 2017) (quoting Richey v. Chappell , 594 N.E.2d 443, 445 (Ind. 1992) (some internal quotations omitted)). "Trial courts have broad discretion on issues of discovery." Id. (citing Hardiman v. State , 726 N.E.2d 1201, 1206 (Ind. 2000) ). The "standard of review in discovery matters is limited to determining whether the trial court abused its discretion." Hale v. State , 54 N.E.3d 355, 357 (Ind. 2016) (quoting Crawford v. State , 948 N.E.2d 1165, 1169 (Ind. 2011) ). Matters of statutory interpretation present pure questions of law and are thus reviewed de novo. Matter of M.S. , 140 N.E.3d 279, 282 (Ind. 2020) (citing In re Adoption of B.C.H. , 22 N.E.3d 580, 584 (Ind. 2014) ). We "presume[ ] that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals." Id. (quoting Rodriguez v. State , 129 N.E.3d 789, 793 (Ind. 2019) ).

[14] Both parties cite the 2016 case, Hale v. State , in which the Indiana Supreme Court discussed depositions, indicating they are

a routine component of pre-trial practice, both in civil and criminal matters. See Ind. Trial Rule 30(A) ...; Ind. Crim. Rule 21 ("The Indiana rules of trial and appellate procedure shall apply to all criminal proceedings so far as they are not in conflict

...