State v. Owings, 32A05-9112-CR-395
| Decision Date | 15 October 1992 |
| Docket Number | No. 32A05-9112-CR-395,32A05-9112-CR-395 |
| Citation | 600 N.E.2d 568 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Bertha Jane OWINGS, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellant-plaintiff.
Stephen A. Oliver, Boren & Oliver, Martinsville, Samuel S. Shapiro, Bloomington, for appellee-defendant.
Bertha Owings was charged with dealing in cocaine as a Class A felony and trafficking with an inmate as a Class D felony. As a part of pre-trial discovery, counsel for Owings deposed an essential State's witness. Prior to trial the witness died and Owings filed a motion to suppress the deposition. The trial court granted the motion indicating the testimony of the deposed witness was not credible and Owings had been denied the right to confront the witness face to face at trial. The State now appeals from the order arguing the trial court abused its discretion. We vacate and remand.
Bertha Owings visited her son who was an inmate at the Indiana Youth Center and allegedly passed to him two balloons filled with cocaine. The charging information listed Orville Zook as one of the State's witnesses. On May 30, 1991, counsel for Owings deposed Zook, who was also an inmate at the Center. Owings did not attend the deposition nor did she make any request to be present. Zook testified that after Owings' son acknowledged swallowing cocaine-filled balloons, Zook gave him several glasses of water to induce vomiting. According to Zook, Owings' son then regurgitated the balloons, gave them to Zook, and informed Zook that Owings had smuggled the cocaine into the Center. Zook subsequently gave the balloons to one of the Center personnel. Zook committed suicide prior to trial, and Owings filed a motion to suppress Zook's deposition. After a hearing, the trial court granted the motion. The State concluded it could not successfully prosecute Owings without the deposition and dismissed the charges. The State now appeals. 1
Admission of depositions into evidence is well within the sound discretion of the trial court. We will reverse only if the court abused its discretion. Iseton v. State (1984), Ind.App., 472 N.E.2d 643. The State claims the trial court abused its discretion in this case because Trial Rule 32(A)(3)(a) provides that a deposition may be used by any party for any purpose if the court finds that the witness is dead; and, Ind.Code Sec. 35-37-4-3 allows parties in a criminal prosecution to take and use depositions of witnesses in accordance with the Trial Rules. Owings counters the trial court properly excluded the deposition from evidence because its admission at trial would violate her state constitutional right to confront the witnesses against her and because the deposition is unreliable.
In support of her constitutional claim Owings cites Brady v. State (1991), Ind., 575 N.E.2d 981. In that case our supreme court examined provisions of Ind.Code 35-37-4-8 which allowed the State to introduce into evidence videotaped statements of child abuse victims. Under the statutory scheme the victims neither heard nor saw the defendant at the time of giving trial testimony. The court determined the statute violated Art. I, Sec. 13 of the Indiana Constitution which provides: "In all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face...." Brady, supra, at 986. Owings contends she was similarly denied the right to confront a witness face to face because she was not present at the Zook deposition and because of Zook's death she obviously cannot face him at trial.
Brady provides Owings no refuge. The right to confront witnesses face to face, like any other constitutional right, may be waived. Id. at 987 citing Kempa v. State (1945), 223 Ind. 120, 58 N.E.2d 934. Our courts have long held that when defense counsel takes a deposition on behalf of the defendant, any objection based on the right of confrontation is waived if the State subsequently seeks to admit the deposition at trial. Abner v. State (1985), Ind., 479 N.E.2d 1254, 1262; Roberts v. State (1978), 268 Ind. 348, 375 N.E.2d 215; Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382. In this case Zook's discovery deposition was taken at the request of Owings' counsel. Owings has therefore waived her right of a face to face confrontation.
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State v. Owings
...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 t......
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Jones-Bey v. Newkirk
...three published Indiana cases discussing § 35-44-3-9 all involve smuggling articles into prisons from the outside. See State v. Owings, 600 N.E.2d 568 (Ind.Ct.App.1992), affirmed, 622 N.E.2d 948 (Ind.1993), Perkins v. State, 483 N.E.2d 1379 (Ind.1985), Roll v. State, 473 N.E.2d 161 (Ind.Ct.......
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Kellems v. State
...STANDARD OF REVIEW The admission of depositions into evidence is well within the sound discretion of the trial court. State v. Owings (1992), Ind.App., 600 N.E.2d 568, reh'g denied, aff'd on transfer, 622 N.E.2d 948. Thus, we will reverse the trial court only if we determine that an abuse o......