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Previous testimony allowed in murder trial

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A witness’s testimony from a man’s murder trial and the deposition testimony of another unavailable witness were correctly allowed at the man’s second murder trial, the Indiana Court of Appeals held Tuesday.

In Nathan S. Berkman v. State of Indiana, 45A04-1111-CR-583, Nathan Berkman appealed his conviction and sentence for felony murder, raising four issues including whether the trial court abused its discretion: in denying his motion to dismiss, which was made on the basis that the instant charge was barred by double jeopardy prohibitions; in denying his mistrial motion, which was made on the basis that the trial court abused its discretion in admitting certain testimony from his first trial; and in admitting certain deposition testimony. Berkman also appealed his 60-year executed sentence.

Berkman slit the throat of Olen Hawkins in his car and stole drugs and money from Hawkins. He drove Hawkins’ car home with the body in it and eventually disposed of the body a few days later by setting the car on fire.

He was charged with murder and felony murder. He was acquitted of the murder charge. The jury didn’t reach a verdict on the felony murder count. At his second trial for felony murder, his girlfriend, Arlene Timmerman, told the judge while on the stand she might be having a migraine and didn’t feel well. The judge declared her unavailable to testify and admitted her testimony from the first trial. The judge also allowed the deposition testimony of Paul Barraza into evidence. Barraza was also considered unavailable as the state tried to locate him but was unsuccessful. He was believed to be in Florida avoiding an open arrest warrant in Lake County.

The Court of Appeals ruled the state was not barred by collateral estoppel from trying Berkman again for felony murder. The admission of Timmerman’s previous testimony was not an abuse of discretion as the trial court correctly found she was unavailable, the judges held. The trial judge was able to observe Timmerman’s behavior and knew she had been previously hospitalized. Berkman was able to cross-examine her during Timmerman’s prior testimony, so his right to confront the witness was not violated, Judge Cale Bradford wrote.

The trial court also did not abuse its discretion in admitting Barraza’s deposition testimony, the court held. The state made a reasonable, good-faith effort to secure Barraza’s presence at trial, but he had apparently fled to avoid an arrest warrant, Bradford continued. Efforts to reach him at his previous address and phone number did not pan out.  

Berkman’s confrontation rights were not violated by admitting the deposition testimony as he had the opportunity to ask Barraza questions to undermine his testimony or any other questions he wanted answered. The appellate court also declined to adopt the Florida rule that the use of discovery depositions during a criminal trial does not satisfy constitutional confrontation requirements.

The judges also found Berkman’s sentence to be appropriate given the nature of the offense and his character.  

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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