Defendant waived right to confront victim by not attending Skype deposition

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A man’s rights under the Indiana Constitution were not violated when the state admitted his victim’s deposition acquired through Skype because the man chose not to be present during the deposition, ruled the Indiana Court of Appeals.

Kevin Mathews was accused of taking two casino tickets from 60-year-old Lucille Webert, who went to the Indiana Grand Casino while visiting her daughter in Indiana. Webert tried to chase after Matthews and injured her finger while grabbing his shirt.

He was convicted of Class B felony robbery, Class D felony theft and Class A misdemeanor battery; the trial court entered judgment of conviction only on the robbery charged and sentenced him to 11 years, with eight executed and three suspended to probation.

He appealed in Kevin A. Mathews v. State of Indiana, 73A04-1406-CR-288, arguing because he did not attend the deposition and it was admitted into trial, he his rights under Article 1, Section 13 of the Indiana Constitution were violated. The deposition was conducted via Skype because Webert lived in Louisiana and her poor health prohibited her from traveling for the trial. Mathews’ defense attorney was present during the deposition and questioned Webert. The state provided notice to Mathews, who was free on bond at the time, but he did not attend.

Chief Judge Nancy Vaidik noted this case is similar to State v. Owings, 622 N.E.2d 948, 951 (Ind. 1993), in which the Indiana Supreme Court found a defendant waived her right to a face-to-face confrontation by failing to attend the deposition of a witness.

Mathews does not challenge that Webert was unavailable for trial because of her health and the deposition was obtained pursuant to procedures designed to elicit the truth, Vaidik wrote. Webert was sworn in by a Louisiana attorney before the deposition and signed it after it was transcribed. Mathews had notice to attend the deposition, but did not go; therefore, he waived his right to a face-to-face confrontation. There is no evidence in the record addressing why he did not attend.

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