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No error in admitting deposition testimony of witness

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The Indiana Court of Appeals found the trial court did not err in admitting the deposition testimony of a witness in a murder case who refused to testify at trial and whom the defendant had a chance to examine at the deposition.

Channing Gordon was in an apartment building when he saw Halston Thomas enter with a gun. Gordon ran into an apartment and heard multiple gunshots. Andre Drake died from his injuries. Gordon was called to testify but refused to do so. The trial court then granted the state’s request to read Gordon’s deposition testimony into evidence. Thomas was convicted of murder.

In Halston Thomas v. State of Indiana, No. 49A02-1109-CR-830, Thomas argued that this deprived him of his constitutional right to confront Gordon because he didn’t have an adequate opportunity to confront and cross-examine him. He claimed the deposition was discovery and not testimonial. The appellate judges cited Howard v. State, 853 N.E.2d 461 (Ind. 2006), in their decision to uphold the murder conviction.

Thomas claimed he didn’t have the ability to confront Gordon at his deposition because the scope of the defense counsel’s questioning of Gordon was strictly limited by Gordon’s counsel. His attorney clearly intended to not question Gordon in-depth at the time, but he did have the opportunity to do so, wrote Judge Ezra Friedlander.

The state established that Gordon was unavailable to testify at trial and that Thomas had an opportunity to cross-examine Gordon at the deposition, which was testimonial in nature, the judges ruled. Even if the judges were to assume that the requirements of Crawford v. Washington, 541 U.S. 36, 68 (2004), weren’t met, any error in admitting the deposition was harmless.

 

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  1. 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.

  2. 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?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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