State v. Owings, No. 32SO5-9310-CR-1194

• Docket Nº: No. 32SO5-9310-CR-1194
• Citation: 622 N.E.2d 948
• Case Date: October 29, 1993
• Court: Supreme Court of Indiana

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622 N.E.2d 948 STATE of Indiana, Appellant, (Plaintiff Below)
v.
Bertha Jane OWINGS, Appellee. (Defendant Below) No. 32SO5-9310-CR-1194. Supreme Court of Indiana. Oct. 29, 1993.

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Pamela Carter, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Indiana Atty. Gen., Indianapolis, for appellant.

Stephen A. Oliver, Boren & Oliver, Martinsville, Samuel S. Shapiro, Bloomington, for appellee.

ON PETITION TO TRANSFER

KRAHULIK, Justice.

We grant transfer to address whether Article I, Section 13 of the Indiana Constitution guarantees a criminal defendant the right to be present at a deposition if that deposition will be used in lieu of live testimony at trial.

Facts

Bertha J. Owings was charged with dealing in cocaine, a class A felony, Ind.Code Ann. Sec. 35-48-4-1(b)(1) (West Supp.1992), and trafficking with an inmate, a class D felony, Ind.Code Ann. Sec. 35-44-3-9(1) (West 1986). The State alleged that Owings delivered balloons filled with cocaine to her son while he was an inmate at the Indiana Youth Center. This allegation was based upon information given by Orville

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Zook, who was also an inmate at the Center. In the charging instrument, the State listed Zook as a necessary witness without whom the case against Owings could not be proved.

Zook was deposed by Owings' counsel on May 30, 1991. Although free on bond at the time of the deposition, Owings did not attend. Zook testified in his deposition that Owings' son told him that he had swallowed cocaine-filled balloons brought to the Center by his mother. Zook further testified that he provided Owings' son with water to induce regurgitation, and afterward, the son gave the balloons to Zook. Zook signed the deposition transcript pursuant to Indiana Trial Rule 30(E).

Zook committed suicide in July, 1991. Owings moved to suppress the deposition on the grounds that Zook's testimony was not sufficiently reliable and its admission would violate her rights of confrontation under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Indiana constitution. Noting that Owings was entitled to have the jury determine the credibility of an accusing witness on the basis of live testimony and finding that Zook's testimony was not credible, the trial court granted the motion. The State moved to dismiss the charges because suppression of the deposition precluded further prosecution of the case. The State then appealed the ruling of the trial court pursuant to Ind.Code Ann. Sec. 35-38-4-2(5) (West 1986).

The Court of Appeals reversed the trial court and held that Zook's deposition was admissible because it bore sufficient indicia of reliability and Owings had waived any right to a face-to-face confrontation. State v. Owings (1992), Ind.App., 600 N.E.2d 568. We agree that the deposition is admissible, but address the contentions made in Owings' petition to transfer that (1) use of the deposition at trial would deny her the right of confrontation, including cross-examination, a face-to-face meeting with the accusing witness, and the right to have the jury observe the demeanor of the witness; and (2) the deposition was not reliable.

Rights of Confrontation

The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him." This right of confrontation is made obligatory on the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 426, 85 S.Ct. 1065, 1053, 13 L.Ed.2d 923 (1965); Miller v. State (1987), Ind., 517 N.E.2d 64, 68. General agreement exists that the essential purpose of the Sixth Amendment right of confrontation is to insure that the defendant has the opportunity to cross-examine the witnesses against him. Miller, 517 N.E.2d at 68. As this Court has recognized, the right to adequate and effective cross-examination is fundamental and essential to a fair trial. It includes the right to ask pointed and relevant questions in an attempt to undermine the opposition's case, as well as the opportunity to test a witness's memory, perception and truthfulness. Lagenour v. State (1978), 268 Ind. 441, 445, 376 N.E.2d 475, 478.

Article I, Section 13 of the Indiana Constitution also provides a criminal defendant the right of confrontation: "[i]n all criminal prosecutions the accused shall have the right to meet the witnesses face to face." This Court has recognized that, "to a considerable degree, the federal right of confrontation and the state right to a face-to-face meeting are co-extensive." Brady v. State (1991), Ind., 575 N.E.2d 981, 987. However, although Indiana courts have determined that cross-examination is the primary interest secured by Article I, Section 13, see Miller, 517 N.E.2d at 69, the rights guaranteed by Article I, Section 13 are not necessarily identical to those given by the Sixth Amendment. As Justice DeBruler wrote in Brady:

These cases exemplify this Court's tradition of recognizing that Indiana's confrontation right contains both the right to cross-examination and the right to meet the witnesses face to face. It places a premium upon live testimony of the State's witnesses in the courtroom during trial, as well as upon the ability of

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the defendant and his counsel to fully and effectively probe and challenge those witnesses during trial before the trier of fact through cross-examination. The defendant's right to meet the witnesses face to face has not been subsumed by the right to cross-examination. That is to say, merely ensuring that a defendant's right to cross-examine the witness is scrupulously honored does not guarantee that the requirements of Indiana's Confrontation Clause are met. The Indiana Constitution recognizes that there is something unique and important in requiring the face-to-face meeting between the accused and the State's witnesses as they give their trial testimony. While the right to cross-examination may be the primary interest protected by the confrontation right in Article I, Sec. 13 of the Indiana Constitution, the defendant's right to meet the witnesses face to face cannot simply be read out of our State's Constitution.

575 N.E.2d at 988.

Nonetheless, neither the Sixth Amendment nor Article I, Section 13 have been interpreted literally to guarantee a criminal defendant all rights of confrontation at every trial for every witness. Otherwise, no testimony of any absent witness would ever be admissible at trial. Miller, 517 N.E.2d at 71. Thus, the right of confrontation "must occasionally give way to considerations of public policy and the necessities of the case." Mattox v. United States, 156 U.S. 237, 243,...