Attorney for Appellant
Matthew Jon McGovern
Louisville, KY
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Gary Damon Secrest
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JOSEPH B. GARNER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 31S01-0202-CR-132
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)
)
)
)
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APPEAL FROM THE HARRISON SUPERIOR COURT
The Honorable Roger D. Davis, Judge
Cause No. 31D01-0002-CF-114
ON PETITION TO TRANSFER
October 29, 2002
SULLIVAN, Justice.
Defendant Joseph B. Garner was convicted of three counts of child
molestation for having sex and engaging in other sexual activities with the
daughter of the woman with whom he lived. We affirm, finding two video
depositions admitted at trial did not fall within a hearsay exception but
that their admission constituted harmless error.
Background
In July, 1998, Defendant moved in with his girlfriend, Anna Camp, and
her three daughters: S.C., age thirteen; T.C., age twelve; and L.C., age
five. Between July and November 1999, while Defendant resided with the
Camp family, he had sexual intercourse with T.C. on numerous occasions and
participated in various other sex acts with T.C. Among the evidence at
trial were blood tests that identified an aborted fetus as having been
conceived by Defendant.
Defendant was arrested and charged with one count of child molesting
by sexual intercourse, a Class A Felony, [1] one count of child molesting
by deviate sexual conduct, a Class A Felony,[2] and one count of child
molesting by fondling, a Class C felony.[3]
On July 21, 2000, Defendant was convicted of all three counts. On
August 14, 2000, after finding numerous aggravating circumstances, the
trial court sentenced Defendant to the maximum sentence on each of the
three counts and ordered the sentences to run consecutively, for a total of
108 years. Rejecting Defendant’s claims, the Court of Appeals affirmed the
convictions and sentences.[4] Garner v. State, 754 N.E.2d 984 (Ind. Ct.
App. 2001). We previously granted transfer, 774 N.E.2d 508 (Ind. Feb. 22,
2002) (table), and now affirm the judgment of the trial court.
Discussion
Defendant contends that he was deprived of his right of
confrontation, under both the U.S. Constitution[5] and the Indiana
Constitution,[6] by not having the chance to cross-examine two State
witnesses, Dr. Howard and Mr. Mosley, since the trial court deemed them
“unavailable” and permitted the admission of their videotaped depositions.
According to Defendant, since both witnesses provided links in the chain of
custody for blood tests that identified him as the father of the aborted
fetus, they were fundamental State witnesses and admission of their
depositions in lieu of live testimony was reversible error.
Hearsay is an out-of-court statement offered to prove the truth of
the matter asserted. Ind. Evid. R. 801(c). Generally, deposition
testimony of an absent witness offered in court to prove the truth of the
matter asserted constitutes classic hearsay. Jackson v. State, 735 N.E.2d
1146, 1150 (Ind. 2000). Possible exceptions to the hearsay rule lie under
both Indiana Trial Rule 32 and Indiana Evidence Rule 804, which allow the
use of prior recorded testimony in lieu of live testimony in certain
circumstances. The decision to invoke the rule allowing admission of prior
recorded testimony such as a deposition, is within the sound discretion of
the trial court. See Freeman v. State, 541 N.E.2d 533, 538 (Ind. 1989).
Nevertheless, the constitutional right of confrontation restricts the
range of admissible hearsay by requiring (1) that the statements bear
sufficient indicia of reliability and (2) that the prosecution either
produce the declarant or demonstrate the unavailability of the declarant
whose statement it wishes to use against the defendant. Jackson, 735
N.E.2d at 1150. Depositions that comport with the principal purposes of
cross-examination provide sufficient indicia of reliability. Id.
Defendant and his attorney both attended the depositions of the two
absent witnesses. During the depositions, Defendant’s attorney extensively
questioned the two witnesses regarding their credentials and the handling
of the specimens. Thus, there was ample opportunity to challenge the
witnesses’ truthfulness and memory. Consequently, the videotaped
depositions demonstrated sufficient indicia of reliability.
We have a different view on the question of whether the two witnesses
were unavailable. A witness is unavailable for purposes of the
Confrontation Clause requirement only if the prosecution has made a good
faith effort to obtain the witness’s presence at trial. Jackson, 735
N.E.2d at 1151. Even though Trial Rule 32(A) permits use of an absent
witness’s deposition testimony if the court finds that the “witness is
outside the state, unless it appears that the absence of the witness was
procured by the party offering the deposition,” we have previously
determined that this trial rule is not applicable to claims involving a
violation of the defendant’s Sixth Amendment right of confrontation. See
id. The issue is not whether the witnesses were out-of-state at the time
of trial, but whether the State made a good faith effort to obtain the
absent witnesses’ attendance at trial.[7] See id. Even if there is only a
remote possibility that an affirmative measure might produce the declarant
at trial, the good faith obligation may demand effectuation. See Gillie v.
State, 512 N.E.2d 145, 150 (Ind. 1987). Reasonableness is the test that
limits the extent of alternatives the State must exhaust. See id.
The record does not reflect that the State made much of an effort at
all to gain the attendance of the two witnesses. Granted, upon learning
the two witnesses would be out-of-town at the time of trial, the State took
steps necessary to preserve testimony via videotaped depositions. However,
Defendant requested that a different matter be tried before the start of
the present trial, which perhaps would have allowed time for the return of
the witnesses, and the State chose not to agree. Instead, the State pushed
this trial forward, knowing that two witnesses would not be present in the
courtroom.
A mere vacation is not sufficient to circumvent the right of
confrontation. There is no indication as to the duration of the two
respective trips but common sense dictates that, provided the trip is not
of such a length as to circumvent the defendant’s right to a speedy trial
and grind the wheels of justice to a halt, a postponement of the
proceedings would have constituted a good faith effort to procure
attendance. Thus, the State could have either agreed to try the other
matter before trying this one, or could have sought a continuance to
enforce a subpoena. The better practice would be for parties faced with
this situation to sort it out before trial and come to a mutually amicable
solution. In this case, such alternatives presented more than a “mere
possibility” that the witnesses could have testified in person.[8]
Nonetheless, a denial of the right of confrontation is harmless error
where the evidence supporting the conviction is so convincing that a jury
could not have found otherwise. See Jackson, 735 N.E.2d at 1152; Carter v.
State, 266 Ind. 140, 145-46, 361 N.E.2d 146, 148 (1977) (Where “evidence .
. . is so convincing that a jury could not properly find against it, . . .
we are warranted in a determination that error was harmless beyond a
reasonable doubt.”). The evidence in this case meets this standard. Even
if there was insufficient evidence to establish a chain of custody for the
blood sample and products of conception samples, T.C. testified regarding
repeated sexual acts between her and Defendant. A conviction for child
molesting may rest exclusively upon the uncorroborated testimony o the
victim. See Jackson, 735 N.E.2d at 1152; Spurlock v. State, 675 N.E.2d
312, 316 n.4 (Ind. 1996). However, we do not have to rely on T.C.’s
uncorroborated testimony. Rather, her testimony was largely corroborated
by S.C.’s testimony. In addition, Defendant’s confession, State’s Ex. 1B,
admits to oral sex and admits to having sexual intercourse with T.C. at
least six times. Thus, erroneous admission would not warrant reversal
because chain-of-custody testimony regarding paternity issues would merely
be cumulative of other evidence that could properly be used to find
Defendant’s sexual activity with T.C. See Grund v. State, 671 N.E.2d 411,
416 (Ind. 1996).
We hold that although the trial court erred by admitting the
videotaped depositions of the two absent witnesses, the error was harmless
beyond a reasonable doubt.
Conclusion
Having previously granted transfer pursuant to Indiana Appellate Rule
58(A), we summarily affirm the opinion of the Court of Appeals as to the
issues discussed in footnote 1, and affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-4-3(a).
[2] Id.
[3] Id. § 35-42-4-3(b).
[4] Defendant raises four issues on appeal. In this opinion, we address
his claim that the trial court committed reversible error when it admitted
into evidence the depositions of two witnesses who were not available to
testify at trial because they were out-of-state on vacation. As to his
remaining claims, the Court of Appeals held that (1) the charging
information was not unconstitutionally vague; (2) the trial court had not
committed error when it admitted evidence of uncharged sexual conduct
between Defendant and the victim and her sister; and (3) Defendant’s
sentence was not improper. Garner v. State, 754 N.E.2d 984, 992-93, 997
(Ind. Ct. App. 2001). As to these three issues, we summarily affirm the
opinion of the Court of Appeals pursuant to Indiana Appellate Rule 58(A).
[5] U.S. Const. amend. VI.
[6] Ind. Const. art. I, § 13.
[7] Previously, this Court determined that going on vacation was an
acceptable circumstance that would justify the use of deposition testimony
in lieu of live testimony. See Kidd v. State, 738 N.E.2d 1039, 1042-43
(Ind. 2000). However, Kidd does not decide the outcome in the present case
because it did not involve a right of confrontation violation. See id.
n.1. In that case, both witnesses were out-of-state on vacation at the
time of trial. That was sufficient to constitute “unavailability” under
Trial Rule 32(A). We affirmed the trial court’s determination to use the
deposition testimony of the two witnesses based on a literal reading of the
Trial Rules.
This case, on the other hand, raises the right of confrontation issue
missing in Kidd. Thus, as was expressed in Jackson, Trial Rule 32(A) does
not provide a defense for a Confrontation Clause violation. Jackson, 735
N.E.2d at 1151. As such, we cannot stop at a determination of
“unavailability” under the Indiana Trial Rules. Rather, we must look to
what is required under the Rules of Evidence and constitutional law.
[8] The State asserted at oral argument that Defendant had waived any
Sixth Amendment claim by continuing to participate in the depositions
without voicing any disagreement to their use at trial when it became clear
that both witnesses would be out-of-town at the time of trial. As this
argument is not outcome determinative, we decline to address it.