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COA: woman not denied right to confrontation

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In a woman’s appeal of her prostitution conviction, the Indiana Court of Appeals addressed the right to confront witnesses and its interrelationship with hearsay evidence.

In Starlett Gilbert v. State of Indiana, No. 49A04-1102-CR-77, Starlett Gilbert appealed her conviction of Class D felony prostitution. Two police officers – Shane Decker and Larry Wilkerson – were working undercover when Gilbert approached them in their car. She got in after the two said they were looking to party and she suggested they could drive to her place. When they got to Gilbert’s home, the officers arrested her for prostitution.

At trial, Decker testified that Gilbert had asked the two what they wanted to do and that Wilkerson responded that he wanted oral sex. Gilbert objected, arguing that was hearsay, but the testimony was allowed. Decker was briefly cross-examined by the defense and Wilkerson was never called to testify.

Gilbert claimed that the trial court abused its discretion in admitting Decker’s testimony regarding Wilkerson’s statements and her right to confrontation was violated. The state conceded that Decker’s testimony in question was hearsay and shouldn’t have been admitted, but argued that Gilbert never called Wilkerson as a witness. The appellate court found Decker’s testimony wasn’t hearsay, but was a statement introduced to show that Wilkerson wanted to receive oral sex and provide context for Gilbert’s response, which was to ask how much money they had, wrote Judge John Baker.

The Confrontation Clause doesn’t apply to non-hearsay statements, even if they are testimonial, and in this case, Gilbert was given the opportunity to cross-examine Decker, who was present the entire time Gilbert was with the undercover officers.

But, the judges emphasized their ruling should not be interpreted as approval for how the state presented its case.

“To be sure, the State had the opportunity to procure the testimony of Detective Wilkerson but declined to do so. While we affirm the trial court, we strongly caution the State against such haphazard work in the future,” wrote the judge.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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