Spence v. State
Decision Date | 10 September 1979 |
Docket Number | No. 3-279A36,3-279A36 |
Citation | 182 Ind.App. 62,393 N.E.2d 277 |
Parties | Walter D. SPENCE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Court | Indiana Appellate Court |
Stephen R. Goot, Hammond, for defendant-appellant.
Theo. L. Sendak, Atty. Gen., Richard E. Webster, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
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.
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.
On or about July 26, 1977, the cause of "In the Matter of Victoria Danae Spence and Ruby Carol Spence" was filed in Lake 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:
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 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.
In California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, the Court approved the admission as substantive evidence at trial of a statement made by a witness at a preliminary hearing who became uncooperative at trial and claimed a failure of memory. The Court said in 399 U.S. at 165-166, 90 S.Ct. at 1938-39:
See: Stearsman, Peak, Carter v. State (1957), 237 Ind. 149, 143 N.E.2d 81.
Thus, the crux of the constitutional guarantee under the Confrontation Clause, according to Mattox and Green, is whether the witness was under oath at the prior proceeding, whether the defendant was represented by counsel at the prior proceeding, whether the prior proceeding was conducted ...
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...there is sufficient identification of the parties and the issues between the former and present proceedings. Spence v. State (1979), 182 Ind.App. 62, 393 N.E.2d 277, 281. In Spence, this court states: "Absolute identity is not required, only sufficient identity to insure that cross-examinat......
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Berkman v. State
...there is sufficient identification of the parties and the issues between the former and present proceedings. Spence v. State (1979), 182 Ind.App. 62, 393 N.E.2d 277, 281. In Spence, this court states: “Absolute identity is not required, only sufficient identity to insure that cross-examinat......
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