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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.