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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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