Jackson v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

CHRISTOPHER D. KEHLER JEFFREY A. MODISETT
Kehler Law Office, P.C. Attorney General of Indiana
Warsaw, Indiana
TERESA DASHIELL GILLER
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

EDWARD LEE JACKSON, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 43S00-9903-CR-196
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable Rex L. Reed, Judge
Cause No. 43C01-9706-CF-94

ON DIRECT APPEAL

October 4, 2000

RUCKER, Justice

After a trial by jury Edward Lee Jackson was convicted of child
molesting as a Class A felony and also was adjudged a habitual offender.
In this direct appeal, Jackson raises four issues for our review which we
rephrase as follows: (1) was Jackson denied the right of confrontation
when the trial court admitted into evidence the deposition testimony of a
police witness in lieu of live testimony; (2) did the trial court err by
admitting into evidence the results of Jackson’s polygraph examination and
related exhibits; (3) did the trial court err by admitting into evidence
Jackson’s inculpatory statement; and (4) did the trial court abuse its
discretion when sentencing Jackson. We affirm.

Facts

The record shows that over a period of approximately seven years,
Jackson occasionally lived with his girlfriend and her minor daughter, E.C.
On several occasions during that period, thirty-plus year old Jackson
engaged E.C. in sexual intercourse. The first assault occurred when E.C.
was only five years of age. The last took place in March 1997 when E.C.
was eleven. During their investigation, officers of the Warsaw Police
Department confronted Jackson concerning the child molesting allegations.
Jackson initially denied the allegations and agreed to take a polygraph
test. After the test indicated deception, Jackson admitted engaging E.C.
in sexual intercourse but claimed it occurred only once and not numerous
times as alleged. He also claimed the one occasion did not happen in March
1997.
The State charged Jackson with child molesting as a Class A felony.
The State also alleged that Jackson was a habitual offender based on two
prior convictions for child molesting. In the guilt phase of trial, the
State introduced into evidence the results of the polygraph examination and
related exhibits along with Jackson’s incriminating statement. Because the
officer who conducted the polygraph examination was not present for trial,
the State moved to introduce the officer’s deposition testimony. The trial
court granted the motion over Jackson’s objection. The jury returned a
verdict of guilty as charged and also adjudged Jackson a habitual offender.
The trial court sentenced Jackson to the maximum term of fifty years for
child molesting enhanced by an additional thirty years for the habitual
offender adjudication. This direct appeal followed. Additional facts are
set forth below where relevant.
Discussion
I.
Jackson first contends that he was denied the right of confrontation
when the trial court admitted into evidence the deposition testimony of the
polygraph examiner in lieu of the officer’s live testimony. The Sixth
Amendment to the United States Constitution provides that “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 applicable to the states.[1] Pointer v. Texas, 380 U.S. 400,
406 (1965); State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993). The
essential purpose of the Sixth Amendment right of confrontation is to
insure that the defendant has the opportunity to cross-examine the
witnesses against him. Id.
As a general rule the deposition testimony of an absent witness offered in
court to prove the truth of the matter asserted represents classic hearsay.
However, under both Indiana Trial Rule 32 and Indiana Evidence Rule 804
this hearsay testimony may be admissible as evidence at trial as an
exception to the hearsay rule.[2] Nonetheless, the Confrontation Clause
operates in two separate ways to restrict the range of admissible hearsay:
(1) the hearsay must bear a sufficient indicia of reliability, and (2) the
prosecution must either produce or demonstrate the unavailability of the
declarant whose statement it wishes to use against the defendant. Ohio v.
Roberts, 448 U.S. 56, 65-66 (1980); Owings, 622 N.E.2d at 952; compare
White v. Illinois, 502 U.S. 346, 356-57 (1992) (limiting the reach of
Roberts to statements given in a prior proceeding). A deposition that
comports with the principal purposes of cross-examination provides
sufficient indicia of reliability. Owings, 622 N.E.2d at 952; Roberts, 448
U.S. at 71 (observing that the principal purpose of cross-examination is to
challenge “whether the declarant was sincerely telling what he believed to
be the truth, whether the declarant accurately perceived and remembered the
matter related, and whether the declarant’s intended meaning is adequately
conveyed by the language he employed”) (quoting David S. Davenport, The
Confrontation Clause and the Co-Conspirator Exception in Criminal
Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378 (1972)).
The record shows that in a motion to suppress hearing conducted in
September 1997, the polygraph examiner revealed that he no longer was
employed by local law enforcement. Rather, he was scheduled to begin
working with the United States Secret Service. Although the record is not
completely clear, apparently this information prompted the State to
schedule the officer’s evidentiary deposition which was taken sometime in
November 1997. Defense counsel was given appropriate notice, and the State
transported the officer from Glenco, Georgia, the site of the officer’s
Secret Service training. The record shows that in addition to the
officer’s testimony that Jackson was being deceptive regarding his denial
of sexual contact with E.C., the State also elicited testimony laying a
foundation for the admission of four exhibits into evidence: (1) a
polygraph interview outline, showing a checklist of topics the officer
discussed with Jackson before the polygraph examination began; (2) a form
entitled “consent to submit to polygraph examination” which included a
Miranda advisement and bore Jackson’s signature; (3) a form entitled
“waiver of objection to use of results of polygraph” which also included a
Miranda advisement and bore Jackson’s signature and the signature of the
prosecuting attorney; and (4) a post-examination report declaring that
Jackson was not “totally truthful” in response to questions concerning
whether he engaged in sexual activity with E.C. The record also shows that
although Jackson was not present for the deposition,[3] his counsel did
attend and comprehensively examined the officer concerning
his training, competency, validity of polygraphs, and the conclusions on
which the officer’s
opinions were based. R. at 312-22. We are satisfied that the deposition
in this case comported with the principal purposes of cross-examination and
thus provided sufficient indicia of reliability.
We have a different view however on the question of whether the
officer was unavailable. “[A] witness is not ‘unavailable’ for purposes of
. . . the exception to the confrontation requirement unless the
prosecutorial authorities have made a good-faith effort to obtain his
presence at trial.” Robert, 448 U.S. at 74 (quoting Barber v. Page, 390
U.S. 719, 724-25 (1968)). The record shows that at the time of trial in
March 1998 the officer in question was present in the nation’s capital
attending a Secret Service training session. The deputy prosecutor
conceded to the trial court, “I cannot tell the Court we couldn’t get him
here, we could.” R. at 298. The State argued however that transporting
the officer to Indiana for trial would result in the officer falling behind
in his course work, and relying on Indiana Trial Rule 32(A), the State also
noted that the officer was unavailable because he was outside the state.
R. at 298. On this latter point we observe that Rule 32(A) is not
applicable to claims involving a violation of a defendant’s Sixth Amendment
right of confrontation. Rather, the inquiry is whether the State has made
a good faith effort to obtain the absent witness’ attendance at trial.
Here, the State made no effort to obtain the officer’s attendance, good
faith or otherwise. Accordingly, the officer was not unavailable, and
admitting his deposition testimony into evidence was error because it ran
afoul of Jackson’s Sixth Amendment right of confrontation.
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. Walker v. State, 607 N.E.2d 391, 396 (Ind.
1993). The evidence in this case meets the foregoing standard. The record
shows that E.C. testified at trial and recounted Jackson’s long history of
forcing her to engage in sexual intercourse. Her testimony was not shaken
on cross-examination. Among other things, E.C. testified the sexual
assaults occurred at home on dates when her mother was attending school.
The State introduced evidence demonstrating that E.C.’s mother was absent
from the home and attending classes on the dates E.C. mentioned. The State
also showed that Jackson was present in the home on those occasions. A
physician who examined E.C. testified that her hymen was not intact.
Although the physician acknowledged that he could not say that sexual
intercourse caused the disruption, he testified that the disruption was
consistent with multiple instances of sexual intercourse. R. at 353.
Convictions for child molesting may rest upon the uncorroborated testimony
of the victim. Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992). In this
case, other witnesses corroborated E.C.’s testimony. Further, although we
discuss the issue in more detail below, the State introduced into evidence
Jackson’s statement in which Jackson admitted having sex with E.C. but
denied it occurred on more than one occasion. We conclude that although
the trial court erred by admitting the officer’s deposition testimony into
evidence, the error was harmless.
II.
In a related argument Jackson complains that the trial court erred by
admitting into evidence the exhibits that were a part of the officer’s
deposition testimony. Although not specifically argued, by implication
Jackson challenges also the officer’s testimony because of its discussion
of the polygraph examination and the ultimate result. We first observe
that Jackson filed a pre-trial motion to suppress the exhibits; however, he
failed to object contemporaneously to their admission at trial. In fact,
when the interview outline and consent form were offered by the State at
trial, Jackson expressly stated that he had “[n]o objection.” R. at 305,
307. The failure to make a contemporaneous objection to the admission of
evidence at trial results in waiver of the error on appeal. White v.
State, 687 N.E.2d 178, 179 (Ind. 1997); Clausen v. State, 622 N.E.2d 925,
927 (Ind. 1993). A contemporaneous objection affords the trial court the
opportunity to make a final ruling on the matter in the context in which
the evidence is introduced. Vehorn v. State, 717 N.E.2d 869, 872 (Ind.
1999). Jackson’s failure here results in waiver of appellate review.
Waiver notwithstanding, we address the merits of Jackson’s claim.
Absent a waiver or stipulation by the parties, the results of polygraph
examinations administered to criminal defendants are not admissible.
Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996). As such, there are four
prerequisites to the admission of polygraph results: (1) the prosecution,
defendant, and defense counsel must all sign a written stipulation
providing for the defendant's submission to the examination and for the
subsequent admission of the results at trial; (2) notwithstanding that
stipulation, the admissibility of the test results is at the trial court's
discretion regarding the examiner's qualifications and the test conditions;
(3) the opposing party shall have the right to cross-examine the examiner
if his or her graphs and opinion are offered into evidence; and (4) the
jury should be instructed that, at most, the examiner's testimony tends
only to show whether the defendant was being truthful at the time
of the examination, and that it is for the jury to determine the weight and
effect to be given to the examiner's testimony. Willey v. State, 712
N.E.2d 434, 439 (Ind. 1999); Sanchez, 675 N.E.2d at 308.
In this appeal Jackson challenges only prerequisites (2) and (3). As
for prerequisite (2), Jackson contends the written stipulation contained
no language “revealing that the court had discretion to admit the test
results” and the record does not reveal “that the court considered the
examiner’s qualifications and test results.” Brief of Appellant at 15. As
for prerequisite (3), Jackson acknowledges that he cross-examined the
polygraph examiner. He complains however that the prerequisite was “not
contained in the stipulation.” Brief of Appellant at 16.
There is no requirement that prerequisites (2) and (3) be incorporated
into the stipulation. Davidson v. State, 558 N.E.2d 1077, 1086 (Ind. 1990)
(rejecting defendant’s argument that the stipulation for admissibility of
the polygraph examination was defective because it did not include the
limitations on admissibility set forth in prerequisites (2) through (4)).
Jackson’s argument to the contrary fails. Regarding the allegation that
the record does not reveal the court considered the examiner’s
qualifications and test results, Jackson is mistaken. The record shows
that at the hearing on Jackson’s motion to suppress, the polygraph examiner
testified at length about his qualifications as well as the examination
protocol. R. at 214-19. This was sufficient. See Davidson, 558 N.E.2d at
1086 (finding that a polygraph examiner’s testimony at a suppression
hearing regarding his training, experience, and the conditions of the
examination was sufficient to find the polygraph results admissible at
trial). The trial court did not err by admitting the challenged exhibits
into evidence.
III.
Jackson next contends the trial court erred by admitting his statement
into evidence because it was not voluntarily given. The facts are these.
After Jackson had taken the polygraph examination, he went to the Warsaw
Police Department to talk with Officer Steve Adang, the investigating
officer in this case. Before questioning began, Officer Adang advised
Jackson of his Miranda rights, and Jackson gave no indication that he did
not understand what the rights meant. R. at 325. The officer then
confronted Jackson with the results of the examination after which Jackson
admitted having sexual intercourse with E.C. but insisted it occurred only
once and sometime around January or February of 1996. R. at 325, 439. The
officer reduced the statement to writing but because Jackson said that he
could neither read nor write, the officer read the statement to him. R. at
326. Jackson then signed and dated the statement. Over Jackson’s
objection the trial court allowed the statement into evidence.
When a defendant challenges the admissibility of his confession the
State must prove beyond a reasonable doubt that the confession was given
voluntarily. Carter v. State, 730 N.E.2d 155, 157 (Ind. 2000); Schmitt v.
State, 730 N.E.2d 147, 148 (Ind. 2000).[4] On review, this Court looks to
the totality of the circumstances surrounding the waiver or confession.
Carter v. State, 686 N.E.2d 1254, 1257 (Ind. 1997). Our focus is whether
the waiver or confession was free and voluntary and not induced by any
violence, threats, promises, or other improper influences. Williams v.
State, 715 N.E.2d 843, 846 (Ind. 1999). When considering the admissibility
of a confession on appeal, we will uphold the finding of the trial court if
there is substantial evidence of probative value to support it. Snellgrove
v. State, 569 N.E.2d 337, 343 (Ind. 1991).
Jackson does not allege any violence, threats, promises, or improper
influences. Rather, his asserted involuntariness seems to focus on the fact
that he “is poorly educated and cannot read or write.” Reply Brief of
Appellant at 10. A defendant’s limited education standing alone does not
render a confession involuntary. Brown v. State, 698 N.E.2d 1132, 1142
(Ind. 1998) (rejecting a claim that defendant’s borderline retardation and
mental illness rendered confession involuntary), cert. denied, 526 U.S.
1056 (1999). Rather, the defendant also must allege some misconduct on the
part of the police. Rhodes v. State, 698 N.E.2d 304, 308 (Ind. 1998)
(rejecting defendant’s claim that he lacked “the physical, physiological,
mental, emotional, and educational capacity to appreciate and understand
the full meaning of his Miranda rights and that his waiver of those rights
was therefore not voluntary, knowing or intelligent.”). “Absent police
conduct causally related to the confession, there is simply no basis for
concluding that any state actor has deprived a defendant of due process of
law.” Id. (quoting Colorado v. Connelly, 479 U.S. 157, 164 (1986)). Here,
Jackson does not direct us to any specific instance in which his limited
education had a bearing on his ability to waive his Miranda rights or to
give a knowing and voluntary statement. The record provides an adequate
foundation for the trial court’s decision to admit the statement into
evidence. We find no error on this issue.
IV.
For his last allegation of error, Jackson contends the trial court
abused its discretion in sentencing him to a cumulative eighty-year
sentence. Sentencing decisions are entrusted to the sound discretion of
the trial court, are given great deference, and will only be reversed for
abuse of discretion. Sensback v. State, 720 N.E.2d 1160, 1163 (Ind. 1999).
Jackson cites no authority in support of his contention; nor does he
explain why or how the trial court abused its discretion. This issue is
waived for review. See Ford v. State, 718 N.E.2d 1104, 1107 n.1 (Ind.
1999) (finding waiver where defendant made no argument concerning why his
sentence was manifestly unreasonable in light of the nature of the offense
and the character of the offender); see also Ind. Appellate Rule 8.3(A)(7)
(requiring cogent argument and citation to authority).
Waiver notwithstanding, we find no abuse. Citing among other things
Jackson’s history of criminal activity, the trial court sentenced Jackson
to fifty years imprisonment, the maximum term for Class A felony child
molesting. See Ind. Code § 35-38-1-7.1(b)(2) (listing criminal history as
a statutory aggravating factor); Moore v. State, 691 N.E.2d 1232, 1236-37
(Ind. Ct. App. 1998) (single aggravating factor may support an enhanced
sentence for a Class A felony). The trial court did not find, and neither
before the trial court nor before this Court does Jackson point to, any
mitigating factors. Because Jackson was adjudged a habitual offender the
trial court enhanced his sentence by thirty years, the minimum enhancement
allowed by statute for a Class A felony. See Ind. Code § 35-50-2-8.

Conclusion

Judgment affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] Although in his Brief of Appellant Jackson refers to Indiana’s
confrontation clause under Article 1, § 13, he makes no separate argument
on that basis. Therefore we decline to address the issue here on Indiana
constitutional grounds. Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998)
(failure to present a separate argument based on the Indiana Constitution
results in waiver).

[2] Under T. R. 32(A)(3)(b) the deposition testimony of an absent
witness is admissible at trial provided the court finds “[t]hat the witness
is outside the state, unless it appears that the absence of the witness was
procured by the party offering the deposition.” Under Evid. R. 804(b)(1)
the deposition testimony of an unavailable witness may also be introduced
into evidence and “‘[u]navailability as a witness’ includes situations in
which the declarant . . . is absent from the hearing and the proponent of a
statement has been unable to procure the declarant’s attendance by process
or other reasonable means.” Evid. R. 804(a)(5).
[3] We have held “[w]here there is no showing in the record that a
defendant is unable to attend a deposition and he makes no objection to it
proceeding, the defendant waives his right to confrontation . . . .”
Owings, 622 N.E.2d at 952. In this case the State does not allege waiver,
and we do not decide the issue on that ground.
[4] We note that the federal constitution requires the State to prove
only by a preponderance of the evidence that a defendant’s confession was
voluntarily given. Smith v. State, 689 N.E.2d 1238, 1246-47 n.11 (Ind.
1997) (citing Colorado v. Conelly, 479 U.S. 157, 167-69 (1986); Lego v.
Twomey, 404 U.S. 477, 488-89 (1972)). However, in Indiana we require the
State to prove the voluntariness of a confession beyond a reasonable doubt,
and trial courts are bound to apply this standard when evaluating such
claims.