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Admission of return of service did not violate Confrontation Clause

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In a matter of first impression, the Indiana Court of Appeals Friday concluded that a return of service on a protective order is not testimonial, so its admission at trial did not violate a defendant’s rights under the Confrontation Clause.

Ronald Gaines appealed his conviction of Class A misdemeanor invasion of privacy, arguing two exhibits – a page showing Gaines was served with a copy of a protective order and a certified printout indicated he received personal service of the order – violated his confrontation rights and contained hearsay.

The trial court granted an ex parte protective order against Gaines and he was served by the Marion County Sheriff’s Department. He was arrested after violating the order by showing up at S.G.’s home.

Gaines claimed that the certified copy of the ex parte order shouldn’t have been admitted because it violated his rights under the Sixth Amendment. He wanted to be able to cross-examine the sheriff’s deputy regarding the service.

Other courts have rejected Gaines’ argument, the Court of Appeals noted, pointing to cases from Arizona, Massachusetts, and Oregon.

“The primary purpose of the return of service is administrative — ensuring that the defendant received notice of the protective order. Although the return of service may be used later in a criminal prosecution, the return of service was not created solely for use in a pending or future criminal prosecution. As such, we conclude that the return of service was not testimonial, and its admission did not violate Gaines’s rights under the Confrontation Clause,” Judge Michael Barnes wrote in Ronald Gaines v. State of Indiana, 49A04-1303-CR-123.

The judges also rejected Gaines’ claim that the evidence is insufficient to sustain his conviction because of a variance between the charging information and the proof at trial.

“There is no indication that Gaines was misled by the alleged variance here. In fact, the difference between an ex parte protective order and a protective order was never mentioned during the trial. There was only one protective order issued, and there was no confusion as to what protective order was at issue. … Gaines has failed to show how he is vulnerable to double jeopardy in a future criminal proceeding,” Barnes wrote.

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  1. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

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  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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