Stafford v. State

• Decision Date: 12 October 2000
• Docket Number: No. 52A05-9911-CR-520.,52A05-9911-CR-520.
• Citation: 736 N.E.2d 326
• Parties: Michael R. STAFFORD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

736 N.E.2d 326

Michael R. STAFFORD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 52A05-9911-CR-520.

Court of Appeals of Indiana.

October 12, 2000.

William E. Daily, Danville, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATTINGLY, Judge

Michael R. Stafford appeals his convictions of criminal confinement, a Class B felony,¹ battery with a deadly weapon, a Class C felony,² and intimidation, a Class C felony.³ He was also convicted of being an habitual offender. He raises six issues, which we consolidate and restate as:

1. Whether the trial court erred when it allowed two police officers to remain in the courtroom during testimony despite a separation of witnesses order;

2. Whether Stafford's convictions of battery and criminal confinement subjected him to double jeopardy because each conviction relied on the use of a rope as a deadly weapon;

3. Whether the trial court erred in giving its criminal confinement instruction;

4. Whether the evidence was sufficient to support Stafford's convictions; and

5. Whether the trial court erred in sentencing Stafford.⁴

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On April 22, 1999, Joanne Batdorf was walking to her house in Peru, Indiana, after renting some movies. Stafford emerged from between two parked cars holding a rope. He put the rope around Batdorf's neck and dragged her to the trunk of his car. He then tried to shove Batdorf into his trunk, slamming the trunk lid on her arms and legs several times. When Batdorf's screams alerted nearby witnesses, Stafford dropped Batdorf, momentarily knocking her unconscious. He then drove away.

Witnesses described Stafford and the vehicle he was driving. A license plate search revealed Stafford's employer owned the vehicle, and Batdorf identified Stafford from a lineup.

DISCUSSION AND DECISION

1. Violation of Separation of Witnesses Order

Stafford filed a motion for separation of witnesses. Prior to opening statements, the State asked that the investigating police officers be allowed to remain in the courtroom during the testimony. The trial court overruled Stafford's objection. Stafford argues that to allow more than one police officer in the courtroom violated Ind. Evidence Rule 615, which states:

At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of or discuss testimony with other witnesses, and it may make the order on its own motion. This rule does not authorize the exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

As our supreme court noted in Hernandez v. State, 716 N.E.2d 948, 950 (Ind.1999), reh'g denied, the adoption of this rule of evidence changed prior case law, as it took decisions to grant these motions from the trial court's discretion and requires the trial court to grant such motions unless one of the three listed exceptions applies. See also Smiley v. State, 649 N.E.2d 697, 699 n. 5 (Ind.Ct.App.1995)

.

There is a long-standing Indiana tradition of permitting a police officer to remain in the courtroom at counsel's table even though the officer may also be called as a witness. Heeter v. State, 661 N.E.2d 612, 615 (Ind.Ct.App.1996). This tradition is continued as the second exception in Evid. R. 615 by designating this person as the State's representative. Id.

An officer may also be allowed to remain in the courtroom pursuant to the third exception if the officer is designated as an "essential witness." To qualify as an essential witness, a witness must have "such specialized expertise or intimate knowledge of the facts of the case that a party's attorney could not effectively function without the presence and aid of the witness." 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 615.04[3][b] (2d ed.1999) (discussing the showing required for exemption under the federal version of the rule). In Hernandez, our supreme court found that a prison guard was an essential witness when the State had demonstrated that only he "would be able to assist in the cross-examination of other inmates, who as defense witnesses would testify that Defendant's attack was in `self-defense.'" 716 N.E.2d at 951.

Here, by contrast, the trial court erred in allowing two police representatives to remain in the courtroom despite a witness separation order and without any designation that the second officer's presence was required as an essential witness. The State asserts, without citation to authority, that more than one officer should be able to serve as the State's representative. It contends "the purpose of the rule would be frustrated by artificially limiting the number of party representatives." (Br. of Appellee at 7-8.) We disagree. The purpose of Rule 615 is to authorize the trial court to exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses and to thereby prevent the witnesses from basing their testimony, consciously or unconsciously, on the testimony of other witnesses. See Weinstein, supra, § 615.02[1] (addressing the federal version of Evid. R. 615). The rule is not intended to offer a mechanism by which one party may defeat the other party's separation of witnesses order.

We believe Evid. R. 615 permits the designation of only one person as a representative of the State. The Rule provides that "an officer or employee of a party that is not a natural person designated as its representative" may not be excluded from the courtroom. This is in the singular—there is no indication that more than one officer, employee or representative is allowed when a separation of witnesses motion has been granted. And see Heeter, 661 N.E.2d at 615

(noting the "tradition of permitting a police officer to remain in the courtroom at counsel's table" (emphasis supplied)).

The language of the rule does not preclude, however, the designation of a second individual as an "essential" witness. In Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993), a case tried prior to the effective date of the rule, the trial court granted the State's request that two witnesses remain in the courtroom during the trial. Our supreme court affirmed on the ground Bell was not prejudiced by the presence of the two witnesses, but suggested the trial court may properly allow one witness as a representative of the State (now the second exception to Rule 615) and another witness to assist counsel (now the third exception to Rule 615 for "essential" witnesses). It stated "each party has a right to have one person in the courtroom to assist counsel. Further, a police officer may remain in the courtroom even though he is also a witness." Id. (citation omitted) (emphasis supplied).

We thus hold that it is not error under Evid. R. 615 to permit one witness to remain in the courtroom under the second exception as a party's designated representative and to permit one witness to remain under the third exception when a party can show that witness is "essential to the presentation of the party's cause." In light of our supreme court's statements that the State may have one person in the courtroom to assist counsel and may "further" have a police officer in the courtroom even though the officer is a witness, we must decline to adopt the State's proffered interpretation of the rule, which interpretation would potentially permit every witness to remain in the courtroom throughout a trial despite a separation of witnesses order.

In the present case, there was no showing that the police officer who was not designated as the State's representative was an "essential" witness and that second officer thus should not have been permitted to remain in the courtroom. As a result, we are faced with the question whether Stafford was prejudiced by the trial court's error. He was not.

In Hernandez, 716 N.E.2d at 955, Justice Boehm discussed in his dissent the effect of a Rule 615 violation:

There are three standards in federal courts and courts of other states addressing errors in witness separation orders under rules identical or similar to our Rule 615. The majority of federal courts require the party objecting to the decision to show prejudice occurred as a result of the error. See United States v. Sykes, 977 F.2d 1242, 1245 (8th Cir. 1992)

; United States v. Prichard, 781 F.2d 179, 183 (10th Cir.1986); Virgin Islands v. Edinborough, 625 F.2d 472, 474 (3d Cir.1980); United States v. Warren, 578 F.2d 1058, 1076 (5th Cir.1978) (en banc),

modified on other grounds, 612 F.2d 887 (5th Cir.1980). Other courts require the party supporting the erroneous decision to show that the error was harmless. In other words, there is a presumption of prejudice that must be overcome before the erroneous decision may stand. See United States v. Jackson, 60 F.3d 128, 136-37 (2d Cir. 1995); United States v. Brewer, 947 F.2d 404, 411 (9th Cir.1991); United States v. Pulley, 922 F.2d 1283, 1286 (6th Cir.1991); United States v. Farnham, 791 F.2d 331, 335 (4th Cir.1986); State v. Roberts, 126 Ariz. 92, 612 P.2d 1055, 1057 (1980). Finally, at least one court has suggested that a violation of Rule 615 should result in an automatic reversal. See United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir.1982).

Justice Boehm opined that the correct approach to a violation of Rule 615 is to presume prejudice, which presumption can be overcome if the non-movant can show there was no prejudice. We agree.

Stafford was not prejudiced by the presence of the two officers. Officer Steve Hoover testified about his photographs of the crime scene and of Stafford at the police station....