concurring.
I concur in Parts I, II, IV, and V. I believe that the trial court should not have allowed two police officers to remain in the courtroom after granting a separation of witnesses order pursuant to Indiana Rule of Evidence 615. I also believe that the burden of showing harmless error falls on the State, but because that burden is satisfied in this case, I concur in result in Part III.
Prior to the adoption of Indiana Rule of Evidence 615, when a motion for separation of witnesses was granted, each party had a right to have one person in the courtroom to assist counsel. Bell v. State, 610 N.E.2d 229, 233 (Ind.1993). It was also the common law rule that the party representative could be a police officer who was also a testifying witness. Id. These rules were supplanted by Rule 615, which abolished the automatic exemption for police officers and gave the trial court discretion to allow witnesses to remain in the courtroom if they met any of the three criteria specified in the rule. The second of these allows "an officer or employee of a party that is not a natural person designated as its representative by its attorney." Several Indiana cases have held that a police officer who has a supervisory role in the investigation of the defendant meets this test as a representative of the State. Stafford v. State, 736 N.E.2d 326, 330 (Ind.Ct.App.2000); Heeter v. State, 661 N.E.2d 612, 614-15 (Ind.Ct.App.1996); Fourthman v. State, 658 N.E.2d 88, 91 (Ind.Ct.App.1995).
In this case, the State asked that two police officers remain at the prosecutor's table throughout the trial without reference to any of the Rule 615 exemptions. The purpose of the party representative exemption is to humanize those parties who are not natural persons. It allows only one representative. Stafford, 736 N.E.2d at 829-30. One or more witnesses may be permitted under the third exemption in Rule 615 for persons "essential to the presentation of the party's cause." < To be present under this provision the trial court must be persuaded that the "witness has 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." Hernandez v. State, 716 N.E.2d 948, 950 (Ind.1999). As the Court points out, Rule 615's exemptions "should be narrowly construed and cautiously granted." Osborne v. State, 754 N.E.2d 915, - (Ind.2001) (citing Long v. State, 743 N.E.2d 253, 256 (Ind.2001)). Accordingly, if an "essential witness" is an employee of the institutional party, there is no reason to permit an additional investigative witness as a representative of the party to avoid the problem of a human being versus an empty chair. Therefore, if two are needed, both must be qualified as essential.
The Advisory Committee Notes to Federal Rule of Evidence 615, the federal counterpart to Indiana Rule of Evidence 615, state that the essential witness "category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation." This case does not turn on scientific or other specialized knowledge, so only the need for mastery of complex facts can be cited as a reason to exempt additional witnesses. - Earlier this year, this Court affirmed a trial court's decision to allow an FBI agent to sit with the prosecutor as an "essential" witness. Long, 743 N.E.2d at 256-57, In the course of the seven-day trial, forty-five non-police, non-expert witnesses testified for the State and sixty-six exhibits were offered into evidence by the *927State. In preparation for the trial, the police conducted over 500 witness interviews and executed thirty searches during three to four years of police work covering leads in Ohio, Illinois, and Indiana. Id. In that case, the FBI agent was "essential" to the prosecutor because he was familiar with the details of a complex and lengthy investigation.
In this case, the prosecutor contended that the two officers were "essential" because "the complex nature of this case and the fact that these officers supervised the investigation on different shifts and therefore had responsibilities for different parts of the investigation would require that I have them both in the courtroom with me." Osborne, however, was apprehended immediately after the crime took place, was arrested two days later, and gave two confessions to police, both of which were admitted at trial. Unlike Long, this case did not involve complicated facts, a plethora of witnesses, or an extensive investigation. There is no showing that the presence of any witness was essential.
A number of police officers testified at Osborne's trial, but the record does not indicate which two officers were allowed to stay in the courtroom despite the witness separation order. Osborne does not indicate what prejudice he might have suffered as a result of the officers' presence in the courtroom and his failure to identify which officers were affected makes it impossible for us to guess at what prejudice might exist. The opinion of the Court concludes that Osborne has failed to meet his burden of showing that the trial court abused its discretion. But as I observed in dissent in Hernandez v. State, it is often difficult or impossible to assess the effect on the testimony of a witness of having heard the testimony of others. 716 N.E.2d at 954-55. For that reason, I would follow the federal circuits that require the party supporting the erroneous decision to show that the error was harmless. I think that Osborne is entitled to a presumption of prejudice that the State must overcome to prevail. Hernandes, 716 N.E.2d at 955.
All of the foregoing does not cause me to dissent from the result in this case. The State presented overwhelming evidence supporting Osborne's conviction independent of the testimony of investigating officers,. Osborne confessed, DNA testing matched Osborne to a weapon used in the attack, and Osborne's accomplice testified against him. Under these circumstances, even if we assume the testimony of the unsequestered witnesses was shaped by their presence in the courtroom, I would find the error to be harmless.
Accordingly, I coneur in result as to Part III of the majority opinion.
SHEPARD, C.J., and DICKSON, JJ., concur.