Attorneys for Appellee
Attorney General of Indiana
Gary Damon Secrest
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
October 29, 2002
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.
Defendant was arrested and charged with one count of child molesting by sexual
intercourse, a Class A Felony,
See footnote one count of child molesting by deviate
sexual conduct, a Class A Felony,See footnote and one count of child molesting by
fondling, a Class C felony.See footnote
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 consec utively, for a total of 108 years. Rejecting Defendants claims, the Court of Appeals affirmed the convictions and sentences. See footnote 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.
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, Defendants 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 witnesss presence at trial. Jackson, 735 N.E.2d at 1151. Even
though Trial Rule 32(A) permits use of an absent witnesss 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 defendants 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.
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
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 defendants 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.
Nonetheless, a denial of the right of confrontation is harmless error where the ev idence 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, Defendants confession, States 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 Defendants 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.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.