concurring in result.
In reference to deposition practice in criminal cases, I.C. 85-87-4-3 provides:
The state and the defendant may take and use depositions of witnesses in accordance with the Indiana Rules of Trial Procedure.
T.R. 30(B)(1) provides:
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined....
T.R. 80(C) provides further:
Examination and cross-examination of witnesses may proceed as permitted at the trial....
T.R. 82(A)(8) provides:
(8) The deposition ... may be used ... for any purpose if the court finds:
(a) that the witness is dead; or
(b) that the witness is outside the state . or
(c) that the witness is unable to attend or testify ... or
(d) that the party offering ... has been unable to procure ... the witness by subpoena; or
(e) ... exceptional circumstances ... or
(f) upon agreement of the parties.
*397When defense counsel objected on confrontation grounds to the admission of the Metzler deposition which had been taken by the state, the trial court asked defense counsel why he had not gotten an order for appellant to attend the deposition. Defense counsel answered that he had received no notice from the prosecutor that the deposition would be used as evidence, and believed the deposition was for discovery only. Defense counsel's belief was not well grounded, as the rule does not require specification of intended use and clearly sanctions evidentiary use.
In forming and acting upon this belief, defense counsel was clearly mistaken. However, when the totality of the effort expended on behalf of appellant by defense counsel is fairly judged, it rises to the level of that reasonably effective assistance required by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
On appeal there is no direct claim that the trial court erred in overruling the confrontation objection to the admission of the Metzler deposition. Appellant's ineffective counsel claim, however, assumes that the trial court correctly overruled this objection. I do not agree with this assumption.
Generally speaking, when an objection is raised to the introduction of evidence at trial the proponent of that evidence has the burden to show admissibility. The state was the proponent of the Metzler deposition at trial, and defense counsel's confrontation objection placed the burden on the state to show admissibility, namely, that the trial use of the deposition would be consistent with the right of the defendant to confront the witness Metzler at the trial. Defense counsel's objection, while specifying a lack of confrontation, did not further specify either the United States Constitution or the Indiana Constitution. On appeal he presents cases which deal with both. Under such cireumstances, I would grant him the benefit of both.
Appellant had the right afforded by Article I, see. 18 to physically confront Metzler at her deposition "face to face" and to cross-examine her. - Ingram v. State (1989), Ind., 547 N.E.2d 823; Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382. See also Brady v. State (1991), Ind., 575 N.E.2d 981. This right may be waived. Hart v. State (1991), Ind., 578 N.E.2d 336. In response to the trial objection to the introduction of the deposition, the record reflects that the following facts were brought out and relied upon by the trial judge in overruling the objection and admitting the deposition: (1) the deposition process had been initiated by the state; (2) defense counsel had appeared at the deposition and cross-examined; (8) the witness was unavailable to appear at trial; and (4) defense counsel, in the mistaken belief that the deposition was for discovery only, had not arranged for appellant to be present. In my opinion this showing is insufficient to warrant admitting the deposition on the basis that the state constitutional right to confront witnesses in a criminal case was waived.
For the purposes of admissibility, a deposition is no more nor less than a part of the trial itself. The standard for waiver of the state constitutional right of confrontation at a deposition in a criminal case cannot rationally be less rigid than the standard for waiver of the same right at the trial itself, and perforce of trial itself, namely that of a knowing, intentional, and voluntary relinquishment. Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628; Harris v. State (1967), 249 Ind. 681, 231 N.E.2d 800; Gilbert v. State (1979), 182 Ind.App. 286, 395 N.E.2d 429. Appellant not only had the right to a "face to face" deposition, but the right to consult with his counsel during the deposition. Batchelor v. State (1920), 189 Ind. 69, 125 N.E. 773. There is an insufficient basis in the circumstances upon which trial court based its ruling admitting the deposition, permitting the inference that appellant knew that a deposition of Metzler would be taken, that he could attend the deposition, that the deposition could be used at trial, or that he consented to it being taken in his absence. Quite clearly, the State can easily establish grounds for admissibility by insuring that the defendant receives notice of the time *398and place of a deposition and of the right to be present.