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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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