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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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