Spence v. State, No. 3-279A36

• Docket Nº: No. 3-279A36
• Citation: 182 Ind.App. 62, 393 N.E.2d 277
• Case Date: September 10, 1979
• Court: Court of Appeals of Indiana

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393 N.E.2d 277 182 Ind.App. 62 Walter D. SPENCE, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3-279A36. Court of Appeals of Indiana. Sept. 10, 1979.

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Stephen R. Goot, Hammond, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Richard E. Webster, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Walter D. Spence was found guilty of assault and battery ¹ and cruelty and neglect of children ² following a trial by jury in Lake Superior Court, Criminal Division.

His appeal raises three issues for review: ³

(1) whether the trial court erred in admitting into evidence the transcript of the testimony of Victoria Danae Spence in a prior civil proceeding;

(2) whether the trial court erred in denying his motion for a continuance made the day of trial; and

(3) whether the trial court erred in permitting a State's witness to give his opinion as to the cause of Victoria's injury.

The judgment is affirmed.

Issue I.

On the night of June 7, 1977, Victoria Danae Spence and her father, the defendant, argued at their home. Later that evening, the police and an ambulance went to the home and an emergency medical technician dressed wounds to both Danae and the defendant. The next day, Spence took Danae to the hospital and extensive surgery was performed on her injury which was in the palm of her right hand.

After her release from the hospital, Danae stayed with her father at their home until on or about July 20, 1977, when she called the Department of Public Welfare and told a welfare worker that she had run away from home because her father had beaten her with a lug wrench. After an overnight stay at the Lake County Children's Home, Danae was placed in a foster home.

[182 Ind.App. 64] On or about July 26, 1977, the cause of "In the Matter of Victoria Danae Spence and Ruby Carol Spence" was filed in Lake

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Superior Court, Juvenile Division. The Lake County Department of Public Welfare sought wardship over the two girls on the grounds that they were dependent and neglected. Included in the Department's petition was a paragraph which read, in part, as follows:

"That said child (Danae) was admitted to St. Margaret's Hospital on 6-7-77 for a wound to her right hand. Upon admittance to hospital Danae out of fear stated that she fell on a piece of glass. However, Danae had told friends that her father had come after her with a knife. On 7-20-77 Danae stated to worker that she had been attacked by her father."

On October 5, 1977, a probable cause affidavit was filed in Lake Superior Court, Criminal Division, and a warrant was issued for Spence's arrest on the charges of assault and battery with intent to kill and cruelty and neglect of children. On or about October 11, 1977, Spence was arrested on these charges.

On October 14, 1977, Danae testified in the civil cause, "In the Matter of Victoria Danae Spence and Ruby Carol Spence," before Juvenile Division Referee David M. Moore, her testimony transcribed by the court reporter of the Lake Superior Court, Juvenile Division.

Trial by jury in the case at bar was begun on September 12, 1978, by which time Danae was unavailable as a witness, having died on December 12, 1977. The State placed into evidence at the criminal proceeding against Spence the transcript of the testimony given by his late daughter in the prior civil proceeding.

Spence argues the admission into evidence of this prior testimony was error because it violated his constitutional right to be confronted with the witnesses against him under the Sixth Amendment to the United States Constitution as made applicable to the states by the Fourteenth Amendment. He concedes that prior testimony is sometimes admissible if the witness is no longer available, but only if the issues involved in the prior proceeding are similar enough to the issues in the present proceeding to permit effective cross-examination and if the interests and motives of the parties in the prior [182 Ind.App. 65] proceeding are substantially the same as those in the present proceeding.

In Mattox v. United States (1895), 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment was not violated by the admission into evidence at the defendant's second trial for murder of a verified copy of the court reporter's stenographic notes of the testimony of a witness for the prosecution at a prior trial on the same charge, the witness having died in the interim between the two proceedings.

The Court said in 156 U.S. at 242-244, 15 S.Ct. at 339-40.

"The primary object of the constitutional provision in question was to prevent depositions or Ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed

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the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law, in its wisdom, declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.

"We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizens, but as securing to every individual such as he already possessed as a British subject, such as his ancestors had inherited and defended since [182 Ind.App. 66] the days of Magna Charta. Many of its provisions in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused,...