ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD H. HURST JEFFREY A. MODISETT
Anderson, Indiana Attorney General of Indiana
ROSEMARY L. BOREK
Deputy Attorney General
JAMES E. WILLIAMS, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-9707-CR-463 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
a window was busted open.
R. at 101. Wenzel also testified that he remembered making
the videotaped interview, but when asked if he recalled making the statements incriminating
his father in the burglary, he alternated between not recalling the statements and denying
them. R. at 101. The State was then permitted to introduce into evidence the videotaped
interview of Wenzel over Williams' objection. R. at 101. At the conclusion of the evidence,
Williams was convicted of burglary.
Thereafter, Williams appealed his burglary conviction, contending that the trial court erred by admitting the videotaped interview of Wenzel, which he claimed was hearsay. The State failed to file a brief disputing Williams' contention. In December of 1996, in an unpublished opinion, this court determined that Williams demonstrated prima facie error by showing that the videotape was not admissible as a prior inconsistent statement under Ind. Evidence Rule 801(d)(1)(A). Therefore, we reversed his burglary conviction and remanded the case for a new trial. See Williams v. State, No. 48A05-9603-CR-120 (Ind. Ct. App., Dec. 30, 1996).See footnote 2 2
During Williams' second jury trial on May 20, 1997, Wenzel was shown his prior videotaped statement out of the presence of the jury to refresh his memory. Nevertheless, during his trial testimony, Wenzel testified that although he remembered talking to the detective in August of 1995, he did not remember what he said to him, being in that video tape or talking to the detective in the video tape. R. at 245-48. Wenzel also testified that
he did not remember whether he was with his father on August 12, 1995. R. at 245-46. On
cross-examination, Williams' counsel asked Wenzel whether he knew the difference between
telling the truth and telling a lie to which Wenzel responded that he did. R. at 249.
Williams' counsel then asked Wenzel again whether he remembered back in August of
1995" to which Wenzel
again responded that he did not.
The State then offered Wenzel's
videotaped statement under the recorded recollection hearsay exception.
objection that the admission of the tape violated his Sixth Amendment right of confrontation,
the trial court admitted Wenzel's videotaped interview into evidence. At the conclusion of
the evidence, Williams was again convicted of burglary. Williams now appeals.
that, by admitting the videotape into evidence, the court violated his right of confrontation
under the Sixth Amendment to the U.S. Constitution and Article I, Section 13 of the Indiana
objections at trial did not assert any claim of violation of the Indiana Constitution.
Therefore, he has waived this issue on appeal. See Hart v. State, 578 N.E.2d 336, 338 (Ind.
1991) (failure to object on Indiana Constitutional grounds at trial results in waiver on
Waiver notwithstanding, Williams' argument fails. Indiana's Confrontation Clause differs from its federal counterpart in that it contemplates a face to face meeting in which the accused and the witness can see and recognize one another. Brady v. State, 575 N.E.2d 981, 987-88 (Ind. 1991). Although the accused must have an opportunity to cross-examine the witness during the face to face confrontation, the opportunity does not have to be seized or successful and the right can be waived. Pierce v. State, 677 N.E.2d 39, 50 (Ind. 1997).
Here, the record reveals that Wenzel testified during the second trial. Therefore, Williams had the opportunity to meet Wenzel face-to-face and to cross-examine him. In fact, the record reveals that Williams did perform a brief cross-examination of Wenzel, questioning him regarding the truthfulness of his present testimony. Thereafter, Williams could have attempted to question Wenzel about the truthfulness of his prior statement. Although we acknowledge that Wenzel stated that he was unable to remember what he had previously said, Williams still had the opportunity to attempt to impeach Wenzel and to allow the jury to judge Wenzel's demeanor and credibility in answering his questions.See footnote 6 6 Thus,
even though Wenzel was unavailable due to a lack of memory, Williams was provided an
opportunity to meet Wenzel face-to-face and to cross-examine him regarding the prior
statement. Thus, we cannot conclude that he was denied his right of confrontation under the
Indiana Constitution. See id (defendant cannot claim loss of right to meet witnesses face
to face if face to face meeting took place and defendant failed to question witness).See footnote 7
KIRSCH, J., concurs.
SULLIVAN, J., dissents with opinion
COURT OF APPEALS OF INDIANA
JAMES E. WILLIAMS, )
vs. ) No. 48A02-9707-CR-463
STATE OF INDIANA, )
SULLIVAN, Judge, dissenting
Indiana recognizes that a criminal defendant has a constitutional right not only to meet the witnesses against him face to face (confrontation) but also to cross-examine those witnesses. State v. Owings (1993) Ind., 622 N.E.2d 948; Brady v. State (1991) Ind., 575 N.E.2d 981. The latter right assures a defendant that he will have the opportunity to fully and effectively" challenge the testimonial evidence presented against him. Owings, 622 N.E.2d at 951; Brady, 575 N.E.2d at 988. Presumably, it is the view of the majority that a defendant need not have an opportunity to effectively cross-examine with reference to the crucial and damaging substance of the past recollection recorded"; it is enough that the
declarant is physically present in the court room and competent to take an oath. I
The majority begins its analysis with the assumption that Wenzel's statement is, in fact, admissible under the past recollection recorded hearsay exception. It is necessary to make this assumption because the Confrontation Clause analysis under Idaho v. Wright (1990) 497 U.S. 805 applies only if it initially has been determined that a statement falls within a valid hearsay exception. See Idaho v. Wright, 497 U.S. at 814 ("In Ohio v. Roberts, we set forth 'a general approach' for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause."). Unlike the majority, I cannot assume that the State met the foundational requirements for admitting a statement under Evid. R. 803(5).See footnote 8 8 According to the rule, a record must, among others things, concern a matter about which a witness once had knowledge and must reflect the knowledge of the witness correctly. As adopted in American jurisprudence, the rule permitting past recollection recorded as an exception to the hearsay exclusion rule and as substantive evidence, required the witness "to affirm that 'he knew it to be true at the time' [the statement] was made." Notes And Legislation, Past Recollection Recorded, 28 Iowa L. Rev. 530 at 534-535 (1943); 31 Michael H. Graham, Federal Practice and Procedure, § 6756 at 323 (1997). Consequently, the view which I express would
preclude admission of many statements proffered as past recollection recorded unless the
witness at trial indicates some minimal recollection of the past incident, or a recollection of
the facts at the time the statement was made and recorded. During the second trial, Wenzel
testified that he had no recollection of the incident and did not recall making the videotape
statement; he remembered only talking to the detective.See footnote 9
However, there is precedent that the record may be admitted if the conduct surrounding the making of the event [sic] reveals that the memorandum must have been a true account of what was perceived . . . 28 Iowa L. Rev., supra, at 535. This concept imports trustworthiness and accuracy from the making of the statement itself. The cases and the commentators seem to conclude that a guarantee of trustworthiness comes from the reliability inherent in a record made while events were fresh in the mind and which accurately reflects those events. The rub lies, however, in the fact that this presupposes that the declarant admits making the statement at the time but now is unable to recollect what he said or knew at the time. It also presupposes that the record is an accurate reflection of what the declarant actually knew at the time. Finally, it presupposes that the circumstantial trustworthiness is an adequate substitute for cross-examination. An ambiguity exists in this reasoning in that it ignores the dangers of defective memory or perception or narration
which can only be adequately tested by cross-examination. See 30 Charles A. Wright and
Kenneth W. Graham Jr., Federal Practice and Procedure § 6333 at 85 (1997). Cross-
examination may, in many instances, cast doubt upon the veracity or accuracy of a statement
having superficial or circumstantial trustworthiness. If the opponent cannot effectively cross-
examine the declarant as to the statement, neither the accuracy of the statement at the time
the record was made nor the knowledge of the declarant at the crucial time of the events in
question can be tested. Therefore, I am unable to square the increasing frequency with
which recorded past recollections are admitted in questionable circumstances with the
corollary result that, notwithstanding serious questions as to the accuracy and trustworthiness
of the recorded statement, that statement receives the imprimatur of absolute truth in that it
is not susceptible to challenge or contravention.
I also recognize that my view may appear to undercut the implementation of the rule as a rule of necessity and to cast some question as to whether the evidence is admitted pursuant to the rule under the mistaken and self-serving premise that it is reliable and trustworthy merely because it has become firmly rooted as a rule of necessity."See footnote 10 10 It would
seem apparent that for the rule to have validity, the evidence must bear the attributes of reliability and trustworthiness without regard to how essential the State considers that evidence to be to its burden to prove the disputed fact beyond a reasonable doubt. I retain this belief notwithstanding a suggestion in Idaho v. Wright (1990) 497 U.S. 805 at 816, drawing from Ohio v. Roberts (1980) 448 U.S. 56 at 66, that the prior statement must fall within a firmly rooted hearsay exception or have particular guarantees of trustworthiness. (Emphasis supplied). My reading of Roberts does not indicate that the firmly rooted factor is an alternative to the trustworthiness requirement. To the contrary, Roberts clearly reflects the principle that once the witness is found to be unavailable, i.e., that the necessity exists, the statement must also be determined to be reliable and trustworthy. In somewhat diluting language, however, the Court in Roberts concluded that the requisite reliability and trustworthiness may in some instances be inferred . . . where the evidence falls within a firmly rooted hearsay exception." 448 U.S. at 66. The same concept was enunciated in Bourjaily v. United States (1987) 483 U.S. 171, 181-84, which, although treating Federal Rule 801(d)(2)(E) as to a co-conspirator's statement, utilized a rationale that, because hearsay rules and the Confrontation Clause are designed to protect similar values, if an exception to the hearsay rule has been established for certain evidence, there are no confrontation or cross-examination impediments to admissibility and we need not be
concerned with the reliability or the trustworthiness of the statement. I submit that that
resolution is too facile to be blindly accepted.See footnote 11
Nevertheless, in Arndt v. State (1994) Ind., 642 N.E.2d 224, 227, our Supreme Court held that exceptions to the hearsay rule exist, because the manner in which certain out-of court statements are made virtually guarantee their reliability." In other words, reliability and trustworthiness are the prerequisite for an exception becoming firmly rooted. The latter status may not be found to exist without the presence of the foundational requirement of reliability and trustworthiness. In this sense, then, I would not allow the rule of necessity to become a rule of convenience when the effect is to abrogate the safeguards of cross- examination. See 30 Wright and Graham, supra § 6332 at 83.See footnote 12 12
the facts would have been fresh in his memory. Such conclusion does not carry the day,
however. It has not been demonstrated, except by a bootstrapping analysis, that Wenzel did
in fact have knowledge at the time in question of the matters which were the subject of the
statement. The majority rationale would impart the existence of past knowledge to any
statement made with regard to real, imagined, or falsified events. The mere making of a
statement does not reflect that the declarant did indeed once have knowledge that the facts
as stated did occur. Furthermore, there is no showing that, even if Wenzel did have
knowledge of events on August 12, 1995, (the date of the burglary) or ten days thereafter (the
date of the statement), his recorded statement reflected his knowledge accurately. The State
has not otherwise provided those missing elements other than by offering into evidence the
I would reverse the conviction and remand for further proceedings.
remembered talking to a BATF agent but that she could not remember what she told him), cert. denied, 507 U.S. 1037 (1993); United States v. Riley, 657 F.2d 1377, 1385-86 (8th Cir. 1981) (witness' prior taped and written statements were admissible under recorded recollection hearsay exception after witness testified that she had no clear present memory or knowledge of events in question, even after listening to the tape and reviewing written statement); United States v. Lewis, 954 F.2d 1386, 1395 (7th Cir. 1992) (inmate's statement contained in agent's report was admissible as recorded recollection where inmate testified that he did not remember telling agent anything and that the events in question were fresher in his memory when the report was made and agent testified that he accurately transcribed the notes when he prepared the report). Here, the record reveals that during trial Wenzel testified that he remembered talking to the detective in August of 1995. Further, his statement was captured on videotape and was not a characterization of Wenzel's statement by the detective. We believe these factors would be sufficient to establish the reliability and accuracy of the statement under the recorded recollection hearsay exception.
Converted by Andrew Scriven