                                                                     Feb 13 2015, 7:58 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Amanda O. Blackketter                                      Gregory F. Zoeller
      Blackketter Law Office                                     Attorney General of Indiana
      Shelbyville, Indiana
                                                                 Justin F. Roebel
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kevin A. Mathews,                                         February 13, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                73A04-1406-CR-288
              v.                                                Appeal from the Shelby Circuit Court
                                                                The Honorable Charles D.
      State of Indiana,                                         O’Connor, Judge
                                                                Trial Court Cause No.
      Appellee-Plaintiff
                                                                73C01-1009-FA-10




      Vaidik, Chief Judge.



                                           Case Summary
[1]   Kevin A. Mathews appeals his conviction for Class B felony robbery. The

      victim in this case was trying to redeem her casino tickets at a kiosk when

      Mathews walked off with them; the victim chased after him and was injured.

      Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015              Page 1 of 13
      Due to the victim’s declining health, she was unable to return to Indiana for

      Mathews’ jury trial. The State notified defense counsel that it wanted to treat

      the victim’s upcoming deposition as a trial deposition. The State and defense

      counsel were at the Shelby County Prosecutor’s Office, and the victim was in

      Louisiana. The deposition was conducted via Skype and then transcribed.

      Although Mathews was out on bond and had notice of the deposition, he did

      not attend the victim’s deposition. The victim did not attend Mathews’ jury

      trial, and her deposition was admitted into evidence.


[2]   Mathews argues that the admission of the victim’s deposition violated his rights

      under Article 1, Section 13 of the Indiana Constitution because he was not

      present at the deposition. We find no violation. First, the victim was

      unavailable at the time of trial because of her declining health. Next, the

      victim’s deposition was obtained pursuant to procedures designed to elicit the

      truth. That is, the victim’s testimony was given under oath and transcribed by a

      court reporter.


[3]   Finally, we find that Mathews waived his right to a face-to-face confrontation

      by failing to attend the victim’s deposition. Mathews was free on bond, yet he

      did not attend the deposition. The State formally extended an offer to Mathews

      to attend the deposition, but defense counsel gave no reason at the deposition

      for his client’s absence.


[4]   Because Mathews waived his right to confront the victim face to face, we affirm

      the trial court.


      Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015   Page 2 of 13
                                Facts and Procedural History
[5]   On September 25, 2010, sixty-year-old Lucille Webert went to Indiana Live!

      Casino in Shelbyville, Indiana.1 Lucille lived in Louisiana, but she was visiting

      her daughter in Indiana. Around 5:55 p.m., Lucille went to a cash redemption

      machine—called kiosk 6—in order to redeem two “TITO”2 tickets, which the

      Indiana Gaming Commission considers currency. Tr. p. 72, 100. One ticket

      was worth 50 cents and the other ticket was worth $183.50. One of the

      numbers printed on the $183.50 ticket was Lucille’s player number.3 What

      followed was captured on several of the casino’s 1200 surveillance cameras. Id.

      at 97; Ex. 10 (video). Lucille was having difficulty redeeming her tickets.

      Lucille turned, and Mathews was standing there. Mathews tried to redeem the

      tickets for Lucille, but he was also unsuccessful. Mathews then walked away

      with Lucille’s tickets. Ex. 10. Lucille chased Mathews, grabbed his shirt, and

      the two of them struggled. Id. The struggle ended when another casino patron

      grabbed Mathews. Id.


[6]   An Indiana Gaming Commission agent was called down to the casino floor to

      investigate. He found Mathews in possession of two TITO tickets, one worth

      50 cents and the other worth $183.50. The $183.50 ticket was tied to Lucille’s




      1
          The casino is now called Indiana Grand Casino.
      2
          “TITO” is an abbreviation for ticket in/ticket out. Tr. p. 71.
      3
       At the time the casino used a system called Patron Management System to track the activity of its patrons
      and to reward them. Tr. p. 72.

      Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015                     Page 3 of 13
      player number. Lucille had an injury to her right ring finger and received

      treatment from the casino EMT. But because of the extent of the injury, Lucille

      was transported by ambulance to the local hospital, where she diagnosed with

      and treated for a dislocated finger. Mathews was arrested.


[7]   The State charged Mathews with Class A felony robbery (serious bodily injury),

      Class D felony theft, and Class C felony battery resulting in serious bodily

      injury. Mathews, who lived in Indianapolis, was free on bond awaiting trial.


[8]   On February 23, 2012, the State filed a motion for ruling on deposition. The

      State alleged that Lucille, who still lived in Louisiana, was in declining health.

      Specifically, the State noted that Lucille, who was now sixty-two years old, had

      recently undergone chemotherapy for cancer, had eye surgery, and was under

      the care of several doctors that required medical visits on a regular basis.

      Accordingly, the State asked that Lucille’s upcoming deposition be considered a

      trial deposition that would be admitted into evidence at trial pursuant to Trial

      Rule 32. At an attorneys-only conference on February 27, the trial court ruled

      that Lucille’s deposition would proceed and that it would determine the

      deposition’s admissibility at trial. Appellant’s App. p. 6 (CCS entry).


[9]   Lucille’s deposition took place via Skype the following week on March 5, 2012.

      Both the deputy prosecutor and defense counsel were present at the Shelby

      County Prosecutor’s Office; Mathews was not present. Lucille was in

      Louisiana with a Louisiana attorney who identified Lucille by her driver’s

      license. Lucille was then placed under oath. The deposition was audio-


      Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015   Page 4 of 13
       recorded and later transcribed by a court reporter. See State’s Ex. 16, p. 29, 57.

       Before the deposition started, defense counsel said:

               For the record, defense would object. . . . I don’t want the fact that Mr.
               Mat[]hews is not here to serve as a waiver of any right he may have
               under the Indiana or federal constitution, and I don’t want my
               presence here to constitute a waiver of any issue he may have under
               the federal or state constitution.
       Id. at p. 34-35. The deputy prosecutor added, “Also, on the record, let it be

       known that his client was entitled to be here, and the offer was extended for his

       client to be here.” Id. at p. 35. Defense counsel conducted a thorough cross-

       examination of Lucille, including establishing that Mathews did not threaten

       Lucille when he gained control of the TITO tickets and that Lucille injured her

       finger when she grabbed him. Id. at p. 43-53.


[10]   Before trial, Mathews filed a motion to exclude Lucille’s deposition based on

       his absence at the deposition. Appellant’s App. p. 149-50. A hearing was held

       in February 2014. According to defense counsel,4 the issue boiled down to

       whether Mathews “had the opportunity to confront and cross examine [Lucille]

       and whether his rights to confront/cross examine would be violated by

       allowing essentially a deposition testimony to be read into the record . . . .” Tr.

       p. 48. Defense counsel continued, “I don’t believe that [Mathews] ever

       wa[i]ved his right to be personally present, confront, and cross examine




       4
        Mathews’ defense counsel at this hearing was different than his defense counsel when Lucille’s deposition
       was taken two years earlier.

       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015                     Page 5 of 13
       [Lucille].” Id. at 49. Defense counsel also said that “I don’t think it’s clear that

       my client knew that the deposition was taking place . . . .” Id. The State

       highlighted that the defense was on notice that it wanted to use Lucille’s

       deposition at trial—because of its February 23, 2012 motion for ruling on

       deposition—and that it formally extended an offer to Mathews to attend the

       deposition; however, Mathews still did not attend the deposition. Id. at 50.

       Foreshadowing its ruling, the trial court said “there’s nothing in the deposition

       or anything that’s been presented to me that indicates that Mr. Mathews was

       instructed that he couldn’t be present and he certainly had the right to be

       present and why he wasn’t present, I don’t know.” Id. at 54.


[11]   After the hearing, the trial court issued the following order:

               1) The alleged victim in this case, Lucille Webert, currently suffers
               from breast cancer, is a resident of Louisiana and is currently unable to
               travel without assistance for any reason. Her physician reports that
               she is unable to attend any court dates due to her current condition.
               (See letter from Dr. Gary Burton dated February 7, 2014). She also
               suffers from diabetes, heart palpitations and neuropathy and must use
               a walker and a power chair.
                                                      *****
               3) Ms. Webert’s deposition was taken by Skype on March 5, 2012,
               while she was in her home state of Louisiana.
               4) Present during the deposition were Deputy Prosecutor Jennifer
               Kinsley and then defense attorney Brent E. Eaton. Defendant was not
               present and was not incarcerated at that time. At the time of the
               deposition, the Deputy Prosecutor established that the Defendant was
               entitled to be present and that an offer had been extended to the
               Defendant to be present. The Deputy Prosecutor and then defense
               counsel Eaton were in Shelbyville at the time the deposition was
               conducted. Ms. Webert was placed under oath.


       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015     Page 6 of 13
               5) Indiana Rule of Evidence 804 allows admission of prior recorded
               testimony when the prosecution shows the declarant/witness is
               unavailable. There must also be sufficient identification of the parties
               and the issues.
               6) Testimonial statements by a person who is absent from trial are
               inadmissible unless the person is unavailable and the defendant had a
               prior opportunity to cross-examine the person. Crawford v. Washington,
               541 U.S. 36, 124 S. Ct. 1354 (2004).
               7) Evidence Rule 804 provides that prior testimony can be admitted if
               the party against whom the evidence is offered had an opportunity and
               similar motive to develop the testimony by direct, cross, or redirect
               examination.
               8) Defendant ha[d] the opportunity to be present; no explanation was
               offered as to his nonappearance at the deposition.
               9) There is no indication in the deposition of Ms. Webert that
               Defendant was denied the opportunity to attempt to undermine her or
               her testimony by asking any questions he saw fit. Berkman v. State, 976
               N.E.2d 68 (Ind. Ct. App. 2012).
               10) Defendant’s motion is denied.
       Appellant’s App. p. 188-189.


[12]   A jury trial was held in March 2014. Mathews renewed his objection when the

       State offered Lucille’s deposition into evidence. The trial court overruled the

       objection, and Lucille’s deposition was read into evidence and admitted as

       State’s Exhibit 16. The jury found Mathews guilty of the lesser-included

       offense of Class B felony robbery, Class D felony theft, and the lesser-included

       offense of Class A misdemeanor battery. The court entered judgment of

       conviction on Class B felony robbery only and sentenced him to eleven years

       with eight years executed and three years suspended to probation.


[13]   Mathews now appeals.


       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015        Page 7 of 13
                                   Discussion and Decision
[14]   Mathews contends that the admission of Lucille’s deposition at trial violated his

       rights under Article 1, Section 13 of the Indiana Constitution because he was

       not present at the deposition. He does not challenge the fact that the deposition

       was conducted by Skype while Lucille was in Louisiana and his defense counsel

       and deputy prosecutor were in Indiana.


[15]   The Sixth Amendment to the United States Constitution provides, in part, that

       “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

       confronted with the witnesses against him[.]” Similarly, Article 1, Section 13 of

       the Indiana Constitution provides, in part, that “[i]n all criminal prosecutions,

       the accused shall have the right . . . to meet the witnesses face to face[.]” “To a

       considerable degree, the federal right of confrontation and the state right to a

       face-to-face meeting are co-extensive.” Brady v. State, 575 N.E.2d 981, 987 (Ind.

       1991). But because Indiana’s clause contains both the right to cross-examine

       and the right to meet witnesses face to face in courtroom during trial, Indiana’s

       right to confrontation is more generous. Harris v. State, 964 N.E.2d 920, 924

       (Ind. Ct. App. 2012), trans. denied.


[16]   Neither the Sixth Amendment nor Article 1, Section 13 has been interpreted

       literally to guarantee a criminal defendant all rights of confrontation at every

       trial for every witness; otherwise, no testimony of any absent witness would

       ever be admissible at trial. State v. Owings, 622 N.E.2d 948, 951 (Ind. 1993).

       Thus, the right of confrontation “must occasionally give way to considerations


       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015   Page 8 of 13
       of public policy and the necessities of the case.” Id. (quotations omitted). As

       our Supreme Court explained in Brady:

               The [Indiana] right is not absolute. It is secured where the testimony
               of a witness at a former hearing or trial on the same case is reproduced
               and admitted, where the defendant either cross-examined such witness
               or was afforded an opportunity to do so, and the witness cannot be
               brought to testify at trial again because he has died, become insane, or
               is permanently or indefinitely absent from the state and is therefore
               beyond the jurisdiction of the court in which the case is pending. In
               such cases, there has been a prior face-to-face meeting with the
               opportunity to cross-examine the witness before a trier of fact in the
               same case and a necessity for the reproduction of testimony exists.
       575 N.E.2d at 987 (citation omitted).


[17]   Indiana’s right to confrontation is an individual privilege relating to the

       procedure at trial and therefore may be waived. Id. For a waiver to be

       effective, there must be an intentional relinquishment or abandonment of a

       known right or privilege. Owings, 622 N.E.2d at 952. The determination of

       whether a defendant has waived a constitutional right depends on the

       circumstances of the particular case, including the conduct of the defendant. Id.

       Waiver can occur by word or deed. Id. Where there is no showing in the

       record that a defendant is unable to attend a deposition and he makes no

       objection to it proceeding, the defendant waives his right to confrontation even

       if the witness is unable to testify at trial. Id. Where, however, neither the

       defendant nor his attorney was given notice of the taking of a statement, no

       waiver has occurred. Id.




       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015    Page 9 of 13
[18]   This constitutional framework allows the use of prior deposition testimony

       provided that the trial court finds that the witness is unavailable and the

       statement bears sufficient indicia of reliability. Id. In short, a deposition that

       comports with the principal purposes of cross-examination provides sufficient

       indicia of reliability. Id. The focus of the test is not on whether the trial court

       believes the witness to be telling the truth, but rather on the process by which

       the prior statement was obtained. Id.


[19]   We find this case to be similar to State v. Owings, a case in which our Supreme

       Court found that the defendant waived her right to a face-to-face confrontation

       by failing to attend the deposition of a witness. Id. at 953. The defendant was

       charged with Class A felony dealing in cocaine and Class D felony trafficking

       with an inmate for delivering balloons filled with cocaine to her son while he

       was an inmate at the Indiana Youth Center. The allegation was based on

       information from Orville Zook, who was also an inmate at the Youth Center.

       Defense counsel deposed Zook before trial. Although free on bond at the time

       of the deposition, the defendant did not attend the deposition. Zook later

       committed suicide, and the defendant moved to suppress the deposition on the

       grounds that its admission would violate her right of confrontation under the

       Sixth Amendment and Article 1, Section 13. The trial court granted the motion

       because it found “serious questions” as to Zook’s credibility. Id. The State

       appealed.


[20]   Our Supreme Court first found that Zook was unavailable pursuant to Trial

       Rule 32(A)(3)(a) (“the witness is dead”). Next, the Court found that the issue

       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015   Page 10 of 13
       was not whether the trial court believed Zook’s deposition testimony but

       whether it was obtained pursuant to procedures designed to elicit the truth.

       Owings, 622 N.E.2d at 953. “Testimony given under oath, subject to penalties

       of perjury[,] and recorded by a court reporter has sufficient indicia of

       reliability.” Id. Finally, the Court found that the defendant waived her right to

       a face-to-face confrontation by failing to attend the deposition. Id. Just like this

       case, the defendant was free on bond when the deposition was taken, and the

       Court presumed that she had notice of the deposition. Id. The Court noted that

       our legal system operates on the notion that notice to counsel is notice to the

       client. Id. at 953 n.1. The only information in the record tending to suggest

       that the defendant’s absence from the deposition was not an intentional

       relinquishment of a known right came from defense counsel’s remarks to the

       court that he thought the defendant was prohibited from attending the

       deposition because it took place at the Youth Center and officials had banned

       the defendant from visiting there. Id. at 953. However, defense counsel

       admitted that no request was made that she be allowed to enter the Youth

       Center or that the deposition be taken elsewhere. Id. Under these

       circumstances, the Court concluded that the defendant waived her

       constitutional rights to confront Zook face to face. Id. Accordingly, the trial

       court erred in suppressing Zook’s deposition testimony. Id.


[21]   We reach the same result as our Supreme Court in Owings. First, Mathews

       does not challenge the fact that Lucille was unavailable at the time of trial




       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015   Page 11 of 13
       because of her declining health.5 Tr. p. 48 (“I think the Court’s review of the

       medical records probably is a conclusion that this declarant is unavailable.”).

       Next, Lucille’s deposition was obtained pursuant to procedures designed to

       elicit the truth. She was sworn in by a Louisiana attorney before her deposition

       began. Defense counsel cross-examined Lucille. In addition, the deposition

       was audio-recorded and transcribed by a court reporter, and Lucille signed the

       deposition after it was transcribed.


[22]   Finally, we find that Mathews waived his right to a face-to-face confrontation

       by failing to attend Lucille’s deposition. Mathews was free on bond, yet he did

       not attend the deposition. Like our Supreme Court in Owings, we presume that

       Mathews had notice of the deposition. 622 N.E.2d at 953 n.1. There was an

       attorneys-only conference discussing the deposition seven days before the

       deposition took place. Moreover, the State said it formally extended an offer to

       Mathews to attend the deposition. At the March 2012 deposition, defense

       counsel—in order to make a record—objected on the grounds that Mathews

       was not present, but counsel did not object to the fact that the deposition was

       taking place and did not give a reason for his client’s absence.6 At the February

       2014 hearing, defense counsel argued that it was not clear if Mathews knew




       5
        Indiana Trial Rule 32(A)(3) provides that “the deposition of a witness, whether or not a party, may be used
       by any party for any purpose if the court finds . . . (c) that the witness is unable to attend or testify because of
       age, sickness, infirmity, or imprisonment . . . .”
       6
        Defense counsel described the objection as objecting “to the deposition proceeding as a trial deposition” as
       opposed to a discovery deposition “based upon [Mathews] not being present for the deposition.” Appellant’s
       App. p. 150.

       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015                           Page 12 of 13
       about the deposition; however, this defense counsel was different than the one

       who attended Lucille’s deposition two years earlier. And there is no other

       evidence in the record addressing why Mathews did not attend Lucille’s

       deposition. Under these circumstances, we conclude that Mathews waived his

       right to confront Lucille face to face. We therefore affirm the trial court.


[23]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 73A04-1406-CR-288 | February 13, 2015   Page 13 of 13
