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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. 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.

  2. 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.

  3. 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.

  4. 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?

  5. 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.

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