Williams v. State

698 N.E.2d 848, 1998 Ind. App. LEXIS 1351, 1998 WL 547066

Opinions

OPINION

BAKER, Judge.

Appellant-defendant James E. Williams appeals his conviction for Burglary,¹ a Class B felony. Specifically, he contends that the court violated his right of confrontation by admitting a videotape into evidence.

FACTS

On August 12, 1995, someone entered Patricia Morrow’s house and took two guns from her bedroom. A few days later, Williams’ seven-year-old son, Wenzel, told his mother, Darlene Williams, that Williams and he had gone to Morrow’s house and Williams had taken the guns. Darlene then took Wen-zel to the police station where they met with Detective Tom Hay of the Anderson Police Department. During a videotaped conversation with Detective Hay, Wenzel stated that a few days earlier he and Williams rode a bike to Morrow’s house, that Williams opened a screen window, lifted Wenzel through the window and told him to open the door. Wenzel also stated that after he opened the door, Williams entered the house, went into Morrow’s bedroom and took two guns from under the mattress. Wenzel also told Detective Hay that the two then left the house and Williams warned him not to tell his mother about what they had done.

On September 1, 1995, Williams was charged with burglary. During the jury trial, held in November of 1995, Wenzel testified that he went to Morrow’s home with his father in August of 1995, and knocked on the door, but nobody was home. Record at 101. He also stated that when Morrow arrived home, he and his father left. R. at 101. Wenzel denied entering Morrow’s house and testified that, while he and his father were there, he noticed that a window was “busted open.” R. at 101. Wenzel also testified that he remembered making the videotaped interview, but when asked if he recalled making the statements incriminating his father in the burglary, he alternated between not recalling the statements and denying them. R. at 101. The State was then permitted to introduce into evidence the videotaped interview of Wenzel over Williams’ objection. R. at 101. At the conclusion of the evidence, Williams was convicted of burglary.

Thereafter, Williams appealed his burglary conviction, contending that the trial court erred by admitting the videotaped interview of Wenzel, which he claimed was hearsay. The State failed to file a brief disputing Williams’ contention. In December of 1996, in an unpublished opinion, this court determined that Williams demonstrated prima fa-cie error by showing that the videotape was not admissible as a prior inconsistent statement under Ind. Evidence Rule 801(d)(1)(A). Therefore, we reversed his burglary conviction and remanded the case for a new trial. See Williams v. State, No. 48A05-9603-CR-120, 674 N.E.2d 1054 (Ind.Ct.App., Dec.30, 1996).²

During Williams’ second jury trial on May 20, 1997, Wenzel was shown his prior videotaped statement out of the presence of the jury to refresh his memory. Nevertheless, during his trial testimony, Wenzel testified that although he remembered talking to the detective in August of 1995, he did not remember what he said to him, “being in that video tape” or talking to the detective in the video tape. R. at 245-48. Wenzel also testified that he did not remember whether he was with his father on August 12, 1995. R. at 245-46. On cross-examination, Williams’ counsel asked Wenzel whether he knew the difference between telling the truth and telling a lie to which Wenzel responded that he did. R. at 249. Williams’ counsel then asked Wenzel again whether he remembered “back in August of 1995” to which Wenzel again responded that he did not. The State then offered Wenzel’s videotaped statement under the recorded recollection hearsay exception. Despite Williams’ objection that the admission of the tape violated his Sixth Amendment right of confrontation, the trial court admitted Wenzel’s videotaped interview into evidence. At the conclusion of the evidence, Williams was again convicted of burglary. Williams now appeals.

DISCUSSION AND DECISION

Wiliams’ sole contention on appeal is that the trial court erred by admitting the videotaped interview of Wenzel. Although Wiliams concedes that the videotaped interview was admissible under the recorded recollection exception³ to the hearsay rule,⁴ he contends that, by admitting the videotape into evidence, the court violated his right of confrontation under the Sixth Amendment to the U.S. Constitution and Article I, Section 13 of the Indiana Constitution.

I. Federal Constitution

Williams first contends that the admission of the videotape violated his right of confrontation under the Sixth Amendment to the U.S. Constitution. Although hearsay rules and the Confrontation Clause are generally designed to protect similar values, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In order for incriminating statements admissible un der an exception to the hearsay rule to comply with the Confrontation Clause, the State must show that the declarant is unavailable and that the statement bears adequate “indicia of reliability.” State v. Owings, 622 N.E.2d 948, 952 (Ind.1993). Reliability, can be inferred without more in a case where the evidence falls within a firmly rooted exception to the hearsay rule. Arndt v. State, 642 N.E.2d 224, 228 (Ind.1994), citing Idaho, 497 U.S. at 815, 110 S.Ct. 3139.

Initially, we note that Williams concedes that Wenzel’s lack of recollection made him unavailable. In addition, although Indiana did not formerly adopt the Indiana Rules of Evidence until 1994, Indiana court’s have long recognized the recorded reeollection exception to the hearsay rule. See, e.g. Gee v. State, 271 Ind. 28, 36, 389 N.E.2d 303, 309 (1979) (recognizing recorded past recollection as exception to hearsay rule); see also Grimes v. State, 258 Ind. 257, 258, 280 N.E.2d 575, 577 (1972) (same). We also note that the tenth circuit has held that the use of a recorded recollection is a firmly rooted exception to the hearsay rule. Hatch v. State of Oklahoma, 58 F.3d 1447 (10th Cir. 1995), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176; see also J.C. Penney Co. v. N.L.R.B., 384 F.2d 479, 484 (10th Cir.1967) (use of recorded past recollection has become firm practice as one of many exceptions to hearsay rule). Therefore, we conclude that the recorded recollection is a firmly rooted exception to the hearsay rule and, as such, the use of the videotaped interview as a recorded recollection did not violate Williams’ Sixth Amendment right of confrontation under the U.S. Constitution.

II. Indiana Constitution

Williams next contends that the admission of the videotaped interview violated his right of confrontation under Article I, Section 13,⁵ of the Indiana Constitution, which gives a defendant the right to “meet the witnesses face to face.” Initially, we note that Williams’ objections at trial did not assert any claim of violation of the Indiana Constitution. Therefore, he has waived this issue on appeal. See Hart v. State, 578 N.E.2d 336, 338 (Ind.1991) (failure to object on Indiana Constitutional grounds at trial results in waiver on appeal).

Waiver notwithstanding, Williams’ argument fails. Indiana’s Confrontation Clause differs from its federal counterpart in that it contemplates a face to face meeting in which the accused and the witness can see and recognize one another. Brady v. State, 575 N.E.2d 981, 987-88 (Ind.1991). Although the accused must have an opportunity to cross-examine the witness during the face to face confrontation, the opportunity does not have to be seized or successful and the right can be waived. Pierce v. State, 677 N.E.2d 39, 50 (Ind.1997).

Here, the record reveals that Wenzel testified during the second trial. Therefore, Williams had the opportunity to meet Wenzel face-to-face and to cross-examine him. In fact, the record reveals that Williams did perform a brief cross-examination of Wenzel, questioning him regarding the truthfulness of his present testimony. Thereafter, Williams could have attempted to question Wenzel about the truthfulness of his prior statement. Although we acknowledge that Wenzel stated that he was unable to remember what he had previously said, Williams still had the opportunity to attempt to impeach Wenzel and to allow the jury to judge Wenzel’s demeanor and credibility in answering his questions.⁶ Thus, even though Wen-zel was unavailable due to a lack of memory, Williams was provided an opportunity to meet Wenzel face-to-face and to cross-examine him regarding the prior statement. Thus, we cannot conclude that he was denied his right of confrontation under the Indiana Constitution. See id. (defendant cannot claim loss of right to meet witnesses “face to face” if face to face meeting took place and defendant failed to question witness).⁷

Judgment affirmed.

KIRSCH, J., concurs. SULLIVAN, J., dissents with opinion.

1 . Ind.Code § 35-43-2-1.

2 . Although Williams failed to provide a transcript of his first trial, we were able to ascertain the contents of Wenzel’s testimony from the FACTS contained in this court’s prior unpublished opinion. See Williams v. State, 48A02-9603-CR-120, 674 N.E.2d 1054, slip op. at 3 (Ind.Ct.App., Dec. 30, 1996).

3 . The Recorded Recollection exception to the hearsay rule provides as follows:

(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

4 .Because Williams concedes that Wenzel’s videotaped statement was admissible under the recorded recollection exception, we will proceed with our analysis without deciding that issue on appeal. However, we do note that before a statement can be admitted under the recorded recollection hearsay exception, certain foundational requirements must be met, including some acknowledgment that the statement was accurate when it was made. See 13 MILLER, INDIANA PRACTICE § 803.105 (1995). Although our research reveals no case which specifically addresses the extent to which this requirement must be satisfied when the State is confronted with a hostile witness, other courts have indicated a willingness to relax the requirement, especially when the witness’ oral statement is recorded verbatim by another party and the witness does not repudiate that statement. Id; See United States v. Sollars, 979 F.2d 1294, 1298 (8th Cir.1992) (witness’ statement was admissible under recorded recollection hearsay exception after she testified that she remembered talking to a BATF agent but that she could not remember what she told him), cert. denied, 507 U.S. 1037, 113 S.Ct. 1864, 123 L.Ed.2d 484 (1993); United States v. Riley, 657 F.2d 1377, 1385-86 (8th Cir.1981) (witness' prior taped and written statements were admissible under recorded recollection hearsay exception after witness testified that she had no clear present memory or knowledge of events in question, even after listening to the tape and reviewing written statement); United States v. Lewis, 954 F.2d 1386, 1395 (7th Cir.1992) (inmate’s statement contained in agent’s report was admissible as recorded recollection where inmate testified that he did not remember telling agent anything and that the events in question were fresher in his memory when the report was made and agent testified that he accurately transcribed the notes when he prepared the report). Here, the record reveals that during trial Wenzel testified that he remembered talking to the detective in August of 1995. Further, his statement was captured on videotape and was not a characterization of Wenzel's statement by the detective. We believe these factors would be sufficient to establish the reliability and accuracy of the statement under the recorded recollection hearsay exception.

5 . This section provides that [i]n all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the counly in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.

6 . We note, however, that in order to effectively cross-examine Wenzel regarding the truthfulness of his prior statement, Williams would first have set forth the content of the prior statement. Thus, counsel may have chosen not to attempt to impeach Wenzel so that the incriminating nature of the statement would not he emphasized.

7 . We also note that, although Traver v. State, 568 N.E.2d 1009 (Ind.1991) sets forth a different test for determining whether a witness’s out of court statements violate the Confrontation Clause, this test was premised upon the supreme court’s pri- or decision in Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975), which was explicitly overruled by Modesitt v. State, 578 N.E.2d 649 (Ind.1991), which was handed down in September of 1991. Therefore, to the extent that Traver, which was handed down in March of 1991, conflicts with the supreme court's more recent decisions, we conclude that it too was overruled by Modesitt.