Williams v. State

• Decision Date: 31 August 1998
• Docket Number: No. 48A02-9707-CR-463,48A02-9707-CR-463
• Parties: James E. WILLIAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 848

698 N.E.2d 848

James E. WILLIAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-9707-CR-463.

Court of Appeals of Indiana.

Aug. 31, 1998.

Rehearing Denied Sept. 24, 1998.

Transfer Denied Dec. 3, 1998.

Donald H. Hurst, Anderson, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Rosemary L. Borek, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

BAKER, Judge.

Appellant-defendant James E. Williams appeals his conviction for Burglary, ¹ a Class B felony. Specifically, he contends that the court violated his right of confrontation by admitting a videotape into evidence.

FACTS

On August 12, 1995, someone entered Patricia Morrow's house and took two guns from her bedroom. A few days later, Williams' seven-year-old son, Wenzel, told his mother, Darlene Williams, that Williams and he had gone to Morrow's house and Williams had taken the guns. Darlene then took Wenzel to the police station where they met with Detective Tom Hay of the Anderson Police Department. During a videotaped conversation with Detective Hay, Wenzel stated that a few days earlier he and Williams rode a bike to Morrow's house, that Williams opened a screen window, lifted Wenzel through the window and told him to open the door. Wenzel also stated that after he opened the door, Williams entered the house, went into Morrow's bedroom and took two guns from under the mattress. Wenzel also told Detective Hay that the two then left the house and Williams warned him not to tell his mother about what they had done.

On September 1, 1995, Williams was charged with burglary. During the jury trial, held in November of 1995, Wenzel testified that he went to Morrow's home with his father in August of 1995, and knocked on the door, but nobody was home. Record at 101. He also stated that when Morrow arrived home, he and his father left. R. at 101. Wenzel denied entering Morrow's house and testified that, while he and his father were there, he noticed that a window was "busted open." R. at 101. Wenzel also testified that he remembered making the videotaped interview, but when asked if he recalled making the statements incriminating his father in the burglary, he alternated between not recalling the statements and denying them. R. at 101. The State was then permitted to introduce into evidence the videotaped interview of Wenzel over Williams' objection. R. at 101. At the conclusion of the evidence, Williams was convicted of burglary.

Thereafter, Williams appealed his burglary conviction, contending that the trial court erred by admitting the videotaped interview of Wenzel, which he claimed was hearsay. The State failed to file a brief disputing Williams' contention. In December of 1996, in an unpublished opinion, this court determined that Williams demonstrated prima facie error by showing that the videotape was not admissible as a prior inconsistent statement under Ind. Evidence Rule 801(d)(1)(A). Therefore, we reversed his burglary conviction and remanded the case for a new trial. See Williams v. State, No. 48A05-9603-CR-120, 674 N.E.2d 1054 (Ind.Ct.App., Dec.30, 1996). ²

During Williams' second jury trial on May 20, 1997, Wenzel was shown his prior videotaped statement out of the presence of the jury to refresh his memory. Nevertheless, during his trial testimony, Wenzel testified that although he remembered talking to the detective in August of 1995, he did not remember what he said to him, "being in that video tape" or talking to the detective in the video tape. R. at 245-48. Wenzel also testified that he did not remember whether he was with his father on August 12, 1995. R. at 245-46. On cross-examination, Williams' counsel asked Wenzel whether he knew the difference between telling the truth and telling a lie to which Wenzel responded that he did. R. at 249. Williams' counsel then asked Wenzel again whether he remembered "back in August of 1995" to which Wenzel again responded that he did not. The State then offered Wenzel's videotaped statement under the recorded recollection hearsay exception. Despite Williams' objection that the admission of the tape violated his Sixth Amendment right of confrontation, the trial court admitted Wenzel's videotaped interview into evidence. At the conclusion of the evidence, Williams was again convicted of burglary. Williams now appeals.

DISCUSSION AND DECISION

Williams' sole contention on appeal is that the trial court erred by admitting the videotaped interview of Wenzel. Although Williams concedes that the videotaped interview was admissible under the recorded recollection exception ³ to the hearsay rule, ⁴ he contends that, by admitting the videotape into evidence, the court violated his right of confrontation under the Sixth Amendment to the U.S. Constitution and Article I, Section 13 of the Indiana Constitution.

I. Federal Constitution

Williams first contends that the admission of the videotape violated his right of confrontation under the Sixth Amendment to the U.S. Constitution. Although hearsay rules and the Confrontation Clause are generally designed to protect similar values, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In order for incriminating statements admissible under an exception to the hearsay rule to comply with the Confrontation Clause, the State must show that the declarant is unavailable and that the statement bears adequate "indicia of reliability." State v. Owings, 622 N.E.2d 948, 952 (Ind.1993). Reliability can be inferred without more in a case where the evidence falls within a firmly rooted exception to the hearsay rule. Arndt v. State, 642 N.E.2d 224, 228 (Ind.1994), citing Idaho, 497 U.S. at 815, 110 S.Ct. 3139.

Initially, we note that Williams concedes that Wenzel's lack of recollection made him unavailable. In addition, although Indiana did not formerly adopt the Indiana Rules of Evidence until 1994, Indiana court's have long recognized the recorded recollection exception to the hearsay rule. See, e.g. Gee v. State, 271 Ind. 28, 36, 389 N.E.2d 303, 309 (1979) (recognizing recorded past recollection as exception to hearsay rule); see also Grimes v. State, 258 Ind. 257, 258, 280 N.E.2d 575, 577 (1972) (same). We also note that the tenth circuit has held that the use of a recorded recollection is a firmly rooted exception to the hearsay rule. Hatch v. State of Oklahoma, 58 F.3d 1447 (10th Cir.1995), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176; see also J.C. Penney Co. v. N.L.R.B., 384 F.2d 479, 484 (10th Cir.1967) (use of recorded past recollection has become firm practice as one of many exceptions to hearsay rule). Therefore, we conclude that the recorded recollection is a firmly rooted exception to the hearsay rule and, as such, the use of the videotaped interview as a recorded recollection did not violate Williams' Sixth Amendment right of confrontation under the U.S. Constitution.

II. Indiana Constitution

Williams next contends that the admission of the videotaped interview violated his right of confrontation under ARTICLE I, SECTION 13, OF THE INDIANA CONSTITUTION⁵, which gives a defendant the right to "meet the witnesses face to face." Initially, we note that Williams' objections at trial did not assert any claim of violation of the Indiana Constitution. Therefore, he has waived this issue on appeal. See Hart v. State, 578 N.E.2d 336, 338 (Ind.1991) (failure to object on Indiana Constitutional grounds at trial results in waiver on appeal).

Waiver notwithstanding, Williams' argument fails. Indiana's Confrontation Clause differs from its federal counterpart in that it contemplates a face to face meeting in which the accused and the witness can see and recognize one another. Brady v. State, 575 N.E.2d 981, 987-88 (Ind.1991). Although the accused must have an opportunity to cross-examine the witness during the face to face confrontation, the opportunity does not have to be seized or successful and the right can be waived. Pierce v. State, 677 N.E.2d 39, 50 (Ind.1997).

Here, the record reveals that Wenzel testified during the second trial. Therefore, Williams had the opportunity to meet Wenzel face-to-face and to cross-examine him. In fact, the record reveals that Williams did perform a brief cross-examination of Wenzel, questioning him regarding the truthfulness of his present testimony. Thereafter, Williams could have attempted to question Wenzel about the truthfulness of his prior statement. Although we acknowledge that Wenzel stated that he was unable to remember what he had previously said, Williams still had the opportunity to attempt to impeach Wenzel and to allow the jury to judge Wenzel's demeanor and credibility in answering his questions. ⁶ Thus, even though Wenzel was unavailable due to a lack of memory, Williams was provided an opportunity to meet Wenzel face-to-face and to cross-examine him regarding the prior statement. Thus, we cannot conclude that he was denied his right of confrontation under the Indiana Constitution. See id. (defendant cannot claim loss of right to meet witnesses "face to face" if face to face meeting took place and defendant failed to question witness). ⁷

Judgment affirmed.

KIRSCH, J., concurs.

SULLIVAN, J., dissents with opinion.

SULLIVAN, Judge, dissenting.

Indiana recognizes that a criminal defendant has a constitutional right not only to meet the witnesses against him face to face (confrontation) but also to cross-examine those witnesses. State v. Owings (1993) Ind., 622 N.E.2d 948; Brady v. State (1991) Ind., 575 N.E.2d 981. The latter right assures a defendant that he will have the opportunity to "fully and effectively" challenge the testimonial evidence presented against him. Owings, 622 N.E.2d at 951; Brady, 575 N.E.2d at 988. Presumably, it is the view of the majority that a...