COA: Burglary victim met definition of ‘unavailable’ at trial

February 12, 2018

Multiple felony burglary convictions have been upheld against a Tippecanoe County man after the Indiana Court of Appeals found the trial court did not err in admitting a victim’s video deposition as evidence during trial.

In Joseph Ira Burns v. State of Indiana, 79A04-1705-CR-1005, Joseph Burns, his brother, Steven, and their friend, Adam Smith, formed a plan to steal money for Jerry and Linda Mathews, who lived near Smith and had been seen carrying large amounts of cash. The brothers carried guns to the Mathews’ house, while each man wore a bandana mask.

When the trio broke into the home, the entered the couple’s bedroom and demanded that Jerry give them his money. Steven struck Jerry in the head with his gun and threatened to kill him, while Burns stood in the doorway and pointed his gun in Jerry’s direction.

The burglars proceeded to steal Jerry’s money and rings but were unaware the Mathews’ rented their basement to Avonne Smith, who heard the burglary and called police. Smith was apprehended as he was fleeing the home, while the brothers were arrested at a friend’s home a few hours later.

Burns was subsequently charged with numerous burglary-related felonies. Meanwhile, the Mathews moved to Florida, where Linda was diagnosed with a malignant brain tumor, making her unavailable to travel to Indiana for her deposition.

The state filed a notice of a testimonial video deposition, which the Tippecanoe Superior Court permitted over Burns’ objection. The court then determined Linda was unavailable to attend the trial and entered her deposition video as evidence, also over Burns’ objection.

Burns was convicted on five felony convictions, including Level 2 felony burglary while armed with a deadly weapon. On appeal, he first argued the trial court erred by admitting Linda’s deposition video as evidence, but the Indiana Court of Appeals disagreed in a Monday opinion.

Judge Melissa May, writing for the unanimous appellate panel, said the record supported the trial court’s determination that Linda was “unavailable” for the trial. May specifically pointed to documentation from Linda’s doctor, who said she was involved in clinical trials six days a week and needed to stay close to the Cancer Center in Florida for monitoring.

Further, any error was harmless considering Linda’s testimony was cumulative of other evidence, May said, and there was no violation of Burn’s Sixth Amendment right to confrontation.

“Here, Linda’s deposition was arranged so that Burns’ attorney could attend in Florida…, Burns attended via two-way video that allowed him to see Linda and Linda to see him, and Burns was able to communicate with his attorney,” she wrote.

The appellate court also rejected Burns’ argument there was insufficient evidence to support his conviction of burglary while armed with a deadly weapon. Both of the victims and Smith testified that Burns and Steven were armed with handguns, May said, and all three testified the guns looked real.

“Although the handguns were not found by the police, and none of the witnesses could testify regarding their examination of the guns and their authenticity, the jury could reasonably infer Burns possessed a gun,” May wrote.


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