Howard v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John (Jack) F. Crawford Steve Carter
Crawford & Devane Attorney General of Indiana
Indianapolis, Indiana
Justin F. Roebel
Steven P. Stoesz Deputy Attorney General
Stoesz & Stoesz Indianapolis, Indiana
Westfield, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 29S05-0609-CR-322

RONALD C. HOWARD, JR.,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the Hamilton Superior Court 3, No. 29D03-0206-FA-195
The Honorable Daniel J. Pfleging, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 29A05-0402-CR-101
_________________________________

September 6, 2006

Rucker, Justice.

After a trial by jury the defendant Ronald C. Howard, Jr., was found guilty of child
molesting based largely upon the deposition testimony of a child witness who refused to testify
at trial. Because there was no showing that the witness was unavailable for trial within the
meaning of the protected person statute, the trial court erred in allowing the deposition into
evidence. We therefore reverse the judgment of the trial court and remand this cause for further
proceedings.
 Facts and Procedural History

Howard and Tina Brooks were married in October 1994. C.C., Brooks’ daughter from a
previous relationship, was three years old at the time. In August 1997 Brooks filed for divorce,
which became final in the winter of 1998. In late 1997 C.C. told Brooks’ male companion that
on various occasions between July 1996 and October 1997 Howard had sexually molested her.
These allegations were reported to the Hamilton County Sheriff’s Department, but no charges
were filed as a result. Because of behavioral problems C.C. began psychological counseling in
the summer of 2002. Apparently during one of the counseling sessions C.C. recounted her
allegations against Howard. As a consequence, on June 24, 2002 the State charged Howard with
four counts of child molesting as Class A felonies. In due course both sides conducted
discovery, as a part of which Howard took C.C.’s pre-trial deposition. During this deposition
C.C. gave details about Howard’s alleged molestations.

During the November 2003 trial the State called C.C. as a witness. She was twelve years
old at the time. After identifying Howard and testifying about homes where she had lived and
schools she had attended, C.C. was then asked, “tell me please what rape means.” Tr. at 481.
She responded: “[s]omething that people do to little kids.” The record shows that C.C. then
started crying, refused to answer any more questions, and requested a break. Id. at 482. The
break lasted approximately an hour, during which C.C. reportedly was crying and throwing up.
After the break the trial court conducted a hearing outside the presence of the jury to determine
whether C.C. was able to continue her testimony. The following exchange occurred.

[Trial Court] Okay. Now you’ve met [the deputy prosecutor]
before and she was asking you some questions just a few minutes
ago, is that correct?

[C.C.] Yes.

[Trial Court] And I think the last question she asked you, you,
you gave an answer to and then you started crying, is that right?

[C.C.] Yes.

[Trial Court] If [the deputy prosecutor] had some additional
questions of you do you believe that you could answer those
questions?
2
 [C.C.] No.

[Trial Court] And can you give me an idea of why not or if
there’s anything I could do to make things more comfortable for
you so that you could answer those questions.

[C.C.] No.

[Trial Court] You’ve had an opportunity in the past to answer any
questions from [defense counsel], is that correct?

[C.C.] Yes.

[Trial Court] And on those days I believe [the deputy prosecutor]
was there also, is that correct?

[C.C.] Yes.

[Trial Court] Is there anything different about what we’re doing
here that makes it so that you can’t answer these questions?

[C.C.] No.

[Trial Court] Would you try?

[C.C.] I can’t. (Crying)

[Trial Court] You can’t? Can you think of anything that I might
be able to do to make you more comfortable so that you can?

[C.C.] (Crying)

Id. at 491-92. During attempted follow-up questions by the State, C.C. continued crying and
responded “no” to the questions: “Is there anything that you can think of that anybody can do
that would help you be able to testify today in Court?” and “Do you think it would help at all if
you didn’t have to testify until Monday?” Id. at 493. The defense asked several questions about
with whom C.C. talked during the break, and she responded appropriately. Id. After
entertaining arguments of counsel, the trial court determined that C.C. was unavailable to testify.
Over Howard’s objection the trial court allowed an edited version of C.C.’s pre-trial deposition
to be introduced into evidence and read to the jury.

3
 At the close of trial the jury found Howard guilty of one count of child molesting as a
Class A felony and not guilty on the remaining counts. The trial court sentenced Howard to
thirty-five years in the Department of Correction. Howard appealed raising several issues for
review including whether he was denied the right of confrontation. The Court of Appeals
affirmed. See Howard v. State, 816 N.E.2d 948 (Ind. Ct. App. 2004). We now grant Howard’s
petition to transfer, reverse the judgment of the trial court, and remand this cause for further
proceedings.

Discussion
I.

The Sixth Amendment to the United States Constitution provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him . . . .” The Fourteenth Amendment makes this right of confrontation obligatory upon the
states. 1 Pointer v. Texas, 380 U.S. 400, 406 (1965); Brady v. State, 575 N.E.2d 981, 985 (Ind.
1991). The essential purpose of the Sixth Amendment right of confrontation is to ensure that the
defendant has the opportunity to cross-examine the witnesses against him. State v. Owings, 622
N.E.2d 948, 950 (Ind. 1993). As this Court has recognized, the right to adequate and effective
cross-examination is fundamental and essential to a fair trial. Id. 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’ memory, perception, and truthfulness. Id.

The standard for determining whether the admission of a hearsay statement against a
criminal defendant violates the right of confrontation was modified in Crawford v. Washington,
541 U.S. 36 (2004). Before Crawford, the issue was controlled by the Supreme Court’s holding
in Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, a hearsay statement of an absent witness
could be admitted in a criminal trial without violating the right of confrontation if (1) it was
shown that the declarant was unavailable and (2) the out-of-court statement bore adequate indicia

1
Before the Court of Appeals Howard contended that he was deprived of his right of confrontation under
Article I, Section 13(a) of the Indiana Constitution as well as the Sixth Amendment to the U.S.
Constitution. The Court of Appeals declined to address the state constitutional claim because Howard
failed to provide separate analysis. On transfer Howard raises no issue of error in this regard. We
therefore address the federal constitutional claim only.
4
of reliability. This test focused upon the reliability of the statement. As the Roberts Court
explained, a statement had adequate indicia of reliability if it either fell within a firmly rooted
hearsay exception or if it bore “particularized guarantees of trustworthiness.” Id. at 65-66.

In Crawford, the Supreme Court dispensed with the reliability analysis set forth in
Roberts and held instead that the admission of a hearsay statement made by a declarant who does
not testify at trial violates the Sixth Amendment if (1) the statement was testimonial and (2) the
declarant is unavailable and the defendant lacked a prior opportunity for cross-examination. The
Court emphasized that if testimonial evidence is at issue, then “the Sixth Amendment demands
what the common law required: unavailability and a prior opportunity for cross-examination.”
Crawford, 541 U.S. at 68. A critical portion of the Court’s holding was the phrase “testimonial
evidence.”

In this case Howard contends that in light of Crawford the trial court erred in allowing
C.C.’s pre-trial deposition into evidence because (1) C.C. was not unavailable to testify at trial
within the meaning of Crawford and (2) he was denied the right of cross-examination as required
by Crawford.

We first observe there has been no claim in this case that the challenged statements in
C.C.’s deposition were anything other than testimonial. Indeed witness statements made during
depositions are generally understood and widely recognized as testimonial. See Davis v.
Washington, 126 S.Ct. 2266, 2275-76 (2006). And Crawford itself acknowledged “[v]arious
formulations of th[e] core class of ‘testimonial statements,’” among them the “extrajudicial
statements contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.” Crawford, 541 U.S. at 51-52 (citations omitted, emphasis added). In
any event, contrary to Howard’s contention the Crawford Court neither defined nor addressed the
meaning of “unavailability.” As we recently observed, “[t]he more general unresolved issue
under Crawford is what it means to say a witness is ‘available at trial for cross-examination.’”
Fowler v. State, 829 N.E.2d 459, 465 (Ind. 2005).

In Fowler, the defendant’s wife was the State’s key witness in a prosecution for domestic
battery. Called to the stand, the wife answered some preliminary questions asked by the State.

5
But after being shown pictures of herself taken at the scene and asked how that happened, she
responded, “I don’t want to testify. I can’t do this . . . . I don’t want to testify no more!” Id. at
462. After a recess defense counsel attempted to cross-examine the wife. She responded in
much the same fashion as she had responded to the State. On grounds of the excited utterance
exception to the hearsay rule, and over the defendant’s hearsay objection, the trial court admitted
into evidence the wife’s statements given to a police officer the day the alleged offense occurred.
The defendant was convicted, and his conviction was affirmed on appeal. On transfer we
addressed an issue similar to the one before us:

The precise issue in this case is whether a witness who is present
and takes the stand, but then refuses to testify with no valid claim
of privilege, is a witness who “appears for cross-examination” (as
that term is used in Crawford) if no effort is made to compel the
witness to respond.

Id. at 465. Acknowledging the difficult choices that defendants and lawyers must make in highly
charged settings such as a victim’s refusal to testify, and expressing sympathy for victims of
domestic violence, we concluded, “the defendant must ask the trial judge to put a recalcitrant
witness to the choice of testifying or contempt, or forgo a Confrontation Clause challenge to the
introduction of the witness’s earlier statements.” Id. at 462. In essence, we determined that a
witness who takes the stand but refuses to answer questions, with no claim of privilege, is
“available” until she refuses to answer questions after being ordered to do so. Id. at 461.

Our conclusion in Fowler is uniquely suited for reluctant adult witnesses in general and
reluctant adult victims of domestic violence in particular because this category of witnesses is
“left to the harsh reality of ordinary trial procedures.” Id. at 462. However, as we noted, the
legislature has provided a mechanism for determining the availability of “child victims of sexual
abuse” who “by virtue of their age, are by far the most likely candidates to be unable or
unwilling to testify at the trial of the person accused of abusing them.” Id. at 461. With Indiana
Code section 35-37-4-6, sometimes referred to as the protected person statute, our legislature has
enacted specific provisions intended to preserve the confrontation rights of the accused while at
the same time “reducing the trauma for child victims in sexual abuse cases and easing the task of

6
prosecuting the perpetrators.” Miller v. State, 517 N.E.2d 64, 71 (Ind. 1987), superceded by
statute on other grounds. 2

Under the protected person statute a determination that a child witness is unavailable may
be predicated only upon a trial court finding (1) from testimony of a psychiatrist, physician, or
psychologist and other evidence, if any, that the child will suffer emotional distress such that she
cannot reasonably communicate if testifying in the physical presence of the defendant, (2) the
child cannot participate at trial for medical reasons, or (3) the child is legally incompetent to

2
At the time of trial Indiana Code section 35-37-4-6 (1994) provided in relevant part:

(c) A statement or videotape that:
(1) is made by a person who at the time of trial is a protected person;
(2) concerns an act that is a material element of an offense listed in subsection
(a) that was allegedly committed against the person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed in subsection (a) if the
requirements of subsection (d) are met.
(d) A statement or videotape described in subsection (c) is admissible in evidence in a
criminal action listed in subsection (a) if, after notice to the defendant of a hearing and of
his right to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person;
that the time, content, and circumstances of the statement or videotape provide
sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one (1) of
the following reasons:
(i) the testimony of a psychiatrist, physician, or psychologist,
and other evidence, if any, the court finds that the protected
person’s testifying in the physical presence of the defendant will
cause the protected person to suffer serious emotional distress
such that the protected person cannot reasonably communicate.
(ii) The protected person cannot participate in the trial for
medical reasons.
(iii) The court has determined that the protected person is
incapable of understanding the nature and obligation of an oath.
(e) If a protected person is unavailable to testify at the trial for a reason listed in subsec-
tion (d)(2)(B), a statement or videotape may be admitted in evidence under this section
only if the protected person was available for cross-examination:
(1) at the hearing described in subsection (d)(1); or
(2) when the statement or videotape was made.

The statute was amended in 2004 and again in 2005. Those amendments, however, do not affect our
analysis.
7
testify. 3 If the child is found to be unavailable for trial by the existence of any one of the
foregoing circumstances, and the trial court finds sufficient indications of reliability, then the
child’s deposition may be admitted in evidence “if the [child] was available for cross-
examination . . . when the statement . . . was made.” Ind. Code § 35-37-4-6(f); I.C. § 35-37-4-
6(e) (1994).

As explained in more detail in part II below, we conclude that C.C. was available for
cross-examination when her deposition was taken. However, notwithstanding that conclusion,
the trial court erred in allowing C.C.’s deposition into evidence because C.C. was not shown to
be unavailable for trial. In sum, for Confrontation Clause purposes a hearsay statement that
allowed a prior opportunity for cross-examination may be admitted into evidence but only if the
declarant is unavailable. C.C. was not unavailable within the meaning of the protected person
statute – the mechanism for determining trial unavailability for children that are alleged to have
been sexually abused. 4 It is true the record shows that C.C. was apparently emotionally upset
when called upon to testify. But there was no testimony by a medical or mental health
professional about the nature and extent of her condition. Nor was there a finding by the trial
court that C.C. was unable to participate at trial for medical reasons or that C.C. was legally
incompetent to testify.

Because C.C. was present at trial and took the stand but refused to testify, we conclude
that in the absence of an unavailability finding pursuant to the protected person statute, C.C. was
not “unavailable.” The judgment of the trial court is therefore reversed and Howard’s conviction
is set aside. This does not however end our analysis. The evidence in this case, specifically

3
It does seem counterintuitive that one of the admissibility requirements for a child’s statement may be
met by showing that the child “is incapable of understanding the nature and obligation of an oath.” I.C. §
35-37-4-6(e)(2)(B)(iii); I.C. § 35-37-4-6(d)(2)(iii) (1994). However as we previously observed “a
witness’ legal incompetency merely affects the admissibility of his in-court testimony and does not bar
admission of his out-of-court statements.” Miller, 517 N.E.2d at 72 n.7 (citing Hopper v. State, 489
N.E.2d 1209, 1212 n.4 (Ind. Ct. App. 1986)).
4
But see Guy v. State, 755 N.E.2d 248, 254 (Ind. Ct. App. 2001) (finding child unavailable within the
meaning of Indiana Evidence Rule 804(a)(2) and allowing deposition testimony into evidence, rejecting
claim that doing so undermined the legislative purposes of the protected person statute). As we observed
in Fowler, although federal and state evidence rules “offer guidance as to the meaning of ‘available for
cross-examination’ as Crawford uses that term” we nonetheless “cannot import the availability doctrine of
Rule 804(a) wholesale into Crawford.” Fowler, 829 N.E.2d at 469.
8
C.C.’s deposition testimony, was sufficient to support the jury’s verdict. As a result there is no
double jeopardy bar to retrial. See Smith v. State, 721 N.E.2d 213, 220 (Ind. 1999). And should
the State decide to retry Howard, and if a proper unavailability determination is made, the
question remains whether C.C.’s pre-trial deposition may be admitted into evidence. We now
address this issue.

II.

Although the protected person statute allows for the introduction at trial of a child’s
statement or videotape if, among other things, “the time, content, and circumstances of the
statement or videotape provide sufficient indications of reliability,” I.C. § 35-37-4-6(e)(1)
(emphasis added); I.C. § 35-37-4-6(d)(1) (1994), the emphasized language was apparently
intended to be consistent with Roberts. See, e.g., Miller, 517 N.E.2d at 68 (discussing a prior
version of the protected person statute and declaring that admission of an out-of-court statement
of a witness who does not testify at trial does not violate the Sixth Amendment if the witness is
shown to be unavailable and the statement has adequate “indicia of reliability”) (citing Roberts,
448 U.S. at 66). But Crawford dictates that “[w]here testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation.” Crawford, 541 U.S. at 68-69. Thus before the deposition
testimony of a child covered by the protected person statute may be introduced at trial, the Sixth
Amendment demands “unavailability and a prior opportunity for cross-examination.” Id. at 68
(emphasis added).

Crawford, however, provides no guidance concerning what “opportunity” is sufficient to
satisfy the demands of the Sixth Amendment. Distinguishing between a “discovery” deposition
and a “trial” deposition, Howard insists that he had no “adequate opportunity” to cross-examine
the child witness in this case. 5

5
The “adequate opportunity” phrase on which Howard relies appears in Crawford as a part of the Court’s
broader discussion about the historical basis for a prior opportunity to cross-examine witnesses. “Our
later cases conform to Mattox’s [Mattox v. United States, 156 U.S. 237 (1895)] holding that prior trial or
preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-
examine.” Crawford, 541 U.S. at 57. Although the adequacy language does not appear in the actual
holding of the Crawford Court, we have no doubt that it is implicitly included.
9
 We acknowledge that trial counsel’s motivation for taking a deposition solely for the
purpose of discovery may differ from that of a deposition to perpetuate testimony. 6 As one
commentator has noted, “[m]ost litigators think of two kinds of depositions: discovery
depositions and testimonial depositions.” Henry H. Perritt, Jr., Trade Secrets: A Practitioners
Guide, P.L.I. § 10:10.1 (2005). During testimonial depositions, more attention is paid “to the
form of questions . . . [and] to cross-examination . . . . It is not uncommon for key witnesses to
be deposed twice by the same party, once for discovery purposes and again for testimonial
purposes.” Id. 7 But we make two observations. First, although Howard contends that the

6
As Howard contends, “[t]he distinction between a ‘discovery’ deposition and a ‘trial’ deposition is not
insignificant. The intended purposes of the two types of depositions are entirely different. Cross-
examination inherent in a trial deposition is succinct and to the point. The goal is to disparage the
witness’ testimony before the trier of fact and accentuate that evidence which is favorable to the
defendant. Cross-examination at a trial deposition would be intended to cast doubt on the credibility of
the witness so that their testimony is not worthy of the jury’s belief. A pre-trial discovery deposition, on
the other hand, is intended to search out information about the state’s case. Often times, such a deposition
is not intended to be ‘confrontational’ because the deposing party wishes to encourage the witness to
volunteer as much information as he or she can.” Pet. to Trans. at 8-9.
7
But see Daniel E. Monnat & Paige A. Nichols, The Kid Gloves Are Off: Child Hearsay After Crawford
v. Washington, 30-FEB Champion 18, 21 (2006):

Cautious defense counsel should consider Crawford fair warning that
squandered opportunities may be viewed as waivers. In particular, if the
prosecution produces a child for a preliminary hearing or a deposition,
defense counsel might be well-advised to conduct as full a cross-
examination as is possible given the state of discovery at the time if there
is any doubt whether the child might appear at trial. While a couple of
courts have questioned whether probable-cause preliminary hearings and
discovery-driven depositions constitute adequate opportunities for
confrontation, commentators are encouraging prosecutors to present
witnesses at these hearings on the assumption that Crawford will tolerate
the admission of their testimonial statements at trial if they later become
unavailable.

Our research reveals that only one other jurisdiction to date has addressed the question of whether
discovery-driven depositions provide an adequate opportunity for confrontation as anticipated by
Crawford. Interpreting its criminal procedural rules as distinguishing between depositions taken for
discovery and depositions taken to perpetuate testimony, two districts of the Florida Court of Appeals
declared that there is no adequate opportunity to cross-examine where a deposition is taken for the
purpose of discovery. See Lopez v. State, 888 So.2d 693 (Fla. 1st Dist. Ct. App. 2004); Belvin v. State,
922 So. 2d 1046 (Fla. 4th Dist. Ct. App. 2006). Another district of the Florida Court of Appeals reached
the opposite conclusion. See Blanton v. State, 880 So.2d 798 (Fla. 5th Dist. Ct. App. 2004); Corona v.
State, 929 So.2d 588 (Fla. 5th Dist. Ct. App. 2006). In this jurisdiction, the Rules of Criminal Procedure
do not distinguish between discovery depositions and testimonial depositions. See Ind. Crim. Rule 21;
Ind. Trial Rule 30.
10
purpose of the deposition in this case was “for discovery” only, counsel for Howard nonetheless
conducted a vigorous and lengthy examination. The deposition lasted approximately two hours
and resulted in ninety-two typewritten pages, nearly all of which constitute counsel’s
examination of C.C. Appellant’s App. Vol. II. 8 We thus disagree with Howard’s claim that he
was denied his right of confrontation. See Abner v. State, 479 N.E.2d 1254, 1262 (Ind. 1985)
(rejecting claim that defendant was denied right of confrontation by admission of discovery
deposition into evidence where forty pages of a 124-page deposition were devoted to defense
counsel’s examination of witness).

Second, and perhaps more importantly, Crawford speaks only in terms of the
“opportunity” for adequate cross-examination. The right of confrontation under the Sixth
Amendment is honored where “the defense is given a full and fair opportunity to probe and
expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-
examination, thereby calling to the attention of the factfinder the reasons for giving scant weight
to the witness’ testimony.” Maryland v. Craig, 497 U.S. 836, 847 (1990) (quoting Delaware v.
Fensterer, 474 U.S. 15, 22 (1985) (per curiam)). Whether, how, and to what extent the
opportunity for cross-examination is used is within the control of the defendant.

Although the following cases were decided before Crawford, they recognize the rule that
prior testimony from a subsequently unavailable witness is admissible at a subsequent trial,
provided the defendant had the opportunity to confront the witness when the testimony was
originally given. See Jackson v. State, 735 N.E.2d 1146, 1150 (Ind. 2000) (deposition
testimony); Owings, 622 N.E.2d at 950 (deposition testimony); Ingram v. State, 547 N.E.2d 823,
826 (Ind. 1989) (deposition testimony); Coleman v. State, 546 N.E.2d 827, 829 (Ind. 1989)
(deposition testimony); Hammers v. State, 502 N.E.2d 1339, 1344 (Ind. 1987) (testimony given
at bail hearing); Abner, 479 N.E.2d at 1262 (deposition testimony). Only where a defendant has
never had the opportunity to confront and cross-examine a witness does the admission of prior
testimony at a subsequent proceeding violate the constitutional right of confrontation. See, e.g.,

8
The record shows that defense counsel actually deposed C.C. on two occasions. The first deposition
took place in April 2003, was terminated at C.C.’s request, and then resumed two months later. Unlike
the first deposition, the full text of the second deposition is not included in the record. However, excerpts
appear in the record and were introduced into evidence at trial. See Tr. at 725-50.
11
Brady, 575 N.E.2d at 989 (videotaped testimony taken outside the presence of defendant and
used at trial); Miller, 517 N.E.2d at 74 (videotaped statement of child where defendant received
no notice); Driver v. State, 594 N.E.2d 488, 489-90 (Ind. Ct. App. 1992) (testimony from prior
trial at which defendant did not have the opportunity for a face-to-face confrontation).

Conclusion

Because there was no showing that C.C. was unavailable for trial within the meaning of
the protected person statute, the trial court erred in allowing C.C.’s pretrial deposition into
evidence. We conclude however that Howard had a full, fair, and adequate opportunity to
confront and cross-examine C.C., within the meaning of the Sixth Amendment, when her pretrial
deposition was taken. Accordingly, subject to a trial court finding of unavailability consistent
with the protected person statute, C.C.’s deposition may be introduced into evidence at any
subsequent retrial.

The judgment of the trial court is reversed and this cause remanded.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

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