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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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