ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER D. KEHLER JEFFREY A. MODISETT
Kehler Law Office, P.C. Attorney General of Indiana
TERESA DASHIELL GILLER
Deputy Attorney General
SUPREME COURT OF INDIANA
EDWARD LEE JACKSON, )
) Supreme Court Cause Number
v. ) 43S00-9903-CR-196
STATE OF INDIANA, )
APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable Rex L. Reed, Judge
Cause No. 43C01-9706-CF-94
ON DIRECT APPEAL
October 4, 2000
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 Jacksons polygraph examination and related exhibits; (3) did
the trial court err by admitting into evidence Jacksons inculpatory statement; and (4)
did the trial court abuse its discretion when sentencing Jackson. We affirm.
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
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 Jacksons incriminating statement. Because the officer who conducted the polygraph examination
was not present for trial, the State moved to introduce the officers deposition
testimony. The trial court granted the motion over Jacksons 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.
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 officers 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.
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.
See footnote 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
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 declarants 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 officers 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 officers Secret Service
training. The record shows that in addition to the officers 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 Jacksons signature; (3) a form entitled waiver of objection to use of
results of polygraph which also included a Miranda advisement and bore Jacksons 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,
See footnote his counsel did attend and comprehensively
examined the officer concerning
his training, competency, validity of polygraphs, and the conclusions on which the officers
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 nations capital attending a Secret Service training
session. The deputy prosecutor conceded to the trial court, I cannot tell
the Court we couldnt 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 defendants 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 officers 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 Jacksons 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 Jacksons 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 Jacksons 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
officers deposition testimony into evidence, the error was harmless.
In a related argument Jackson complains that the trial court erred by admitting
into evidence the exhibits that were a part of the officers deposition testimony.
Although not specifically argued, by implication Jackson challenges also the officers 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). Jacksons failure here results in waiver of appellate review.
Waiver notwithstanding, we address the merits of Jacksons 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 examiners 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 defendants
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)). Jacksons argument to the contrary fails. Regarding the allegation
that the record does not reveal the court considered the examiners qualifications and
test results, Jackson is mistaken. The record shows that at the hearing
on Jacksons 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
examiners 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
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 Jacksons objection the trial court allowed the statement
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).
See footnote 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.
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 defendants 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
defendants 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 defendants 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 courts decision to admit the
statement into evidence. We find no error on this issue.
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 Jacksons 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.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Although in his Brief of Appellant Jackson refers to Indianas 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
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).
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 declarants attendance by process or other reasonable means.
Evid. R. 804(a)(5).
Footnote: 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
We note that the federal constitution requires the State to prove
only by a preponderance of the evidence that a defendants confession was voluntarily
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.