GALLAGHER v. STATE

RATLIFF, Judge.

STATEMENT OF THE CASE

Michael Gallagher appeals from a conviction for forgery, a class C felony. We affirm.

FACTS

Michael Gallagher was arrested with William McBride for forging a doctor's signature on a prescription for Talwin.1 The prosecution entered into a plea agreement with McBride in exchange for his testimony at trial against Gallagher. Record at 492-93. Less than a week before trial, defense counsel took the deposition of McBride in the presence of the state but Gallagher, the defendant, was absent. McBride was questioned only by defense counsel during the deposition. On the first day of the trial, McBride did not appear despite the issuance of a subpoena. On the second day, a police officer testified as to his inability to locate McBride and the state moved to admit the witness' deposition pursuant to Indiana Rules of Procedure, Trial Rule 32. The deposition, which was the state's only direct evidence against Gallagher, was admitted into evidence over the objections of defense counsel that T.R. 32 was not satisfied and that Gallagher's confrontation right was violated because he was never provided with the opportunity to confront McBride face-to-face. The jury convicted Gallagher of forgery and he appeals.

ISSUES

The issues presented for review are restated as follows:

1. Did the admission at trial of a deposition requested, and taken, by defense counsel but outside the presence of the defendant violate the Indiana and United States Constitutional guarantee of confrontation?

2. Did the trial court err in finding that the testimony of the witness was admissible pursuant to T.R. 32?

DISCUSSION AND DECISION

Issue One

Gallagher initially claims that his right of confrontation was violated because he was absent when the deposition was taken.2 The defendant argues that he had a right to be present during the deposition because it constituted a critical stage in the proceedings against him. Childers v. State, (1980) Ind. App., 408 N.E.2d 1284. We have found no Indiana case that provides a defendant the right to be present at a deposition taken prior to the actual trial. Jones v. State, (1983) Ind., 445 N.E.2d 98. The right to be present during all critical stages of the proceedings requires only that the defendant be present during his trial. Illinois v. Allen, (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, reh. denied 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80; Snyder v. Massachusetts, (1934) 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; Bowen v. State, (1975) 263 Ind. 558, 564, 334 N.E.2d 691, 695. See also, State v. Dolen, (1980) Fla.App., 390 So.2d 407.

The next argument raised by Gallagher poses a much more difficult question. He argues that the deposition should not have been admitted because he never had the opportunity to physically confront McBride. It has been held that before a deposition can be used against a defendant at trial, confrontation requires the defendant to have been present at the deposition. United States v. Benfield, (8th Cir.1979) 593 F.2d 815; Collins v. State, (1971) 12 Md.App. 239, 278 A.2d 311, aff'd 265 Md. 70, 288 A.2d 163 (1972). However, these cases are distinguishable because both involved situations where the deposition was taken at the request of the prosecution for the purpose of preserving the witness' testimony for admission at trial as a substitute for live testimony. We believe, although it is unnecessary for us to decide, that when the state takes a witness' deposition to perpetuate the testimony for use at trial, the defendant and his counsel should be given notice of the deposition and an opportunity to confront and cross-examine the witness. See Indiana Rules of Procedure, Trial Rule 30(B); see also, Federal Rules of Criminal Procedure 15. See State v. Wilkinson, (1980) 64 Ohio St.2d 308, 415 N.E.2d 261; cf. Jones, 445 N.E.2d at 100. If this procedure is followed the trend is to allow the deposition to be admitted at trial as substantive evidence if the witness is unavailable. Ohio v. Roberts, (1980) 448 U.S. 56, 73, 100 S.Ct. 2531, 2542-43, 65 L.Ed.2d 597, 612 (preliminary hearing testimony subject to cross-examination admissible); United States v. Knop, (7th Cir.1983) 701 F.2d 670; United States v. Steele, (3rd Cir.1982) 685 F.2d 793, cert. denied 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170. Indeed, we believe that the admission of a deposition at trial which was taken in the absence of the defendant or his counsel could be so fundamentally unfair as to violate the defendant's due process rights. California v. Green, (1970) 399 U.S. 149, 186 n. 20, 90 S.Ct. 1930, 1950 n. 20, 26 L.Ed.2d 489, 513 (Harlan, J., concurring).

However, in the present case McBride's deposition was not taken at the request of the prosecution and was not taken to preserve testimony for trial. Defense counsel requested the deposition and conducted it. The fact that the state never even asked questions during the deposition indicates the prosecution expected the witness to appear at trial. Therefore, the deposition was not the type which required the presence of the defendant to satisfy confrontation. Furthermore, the confrontation clause has never been held to be absolute. Ohio v. Roberts, 448 U.S. at 63, 100 S.Ct. at 2537, 65 L.Ed.2d at 605-06; Mattox v. United States, (1895) 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409, 411; Alspach v. State, (1982) Ind. App., 440 N.E.2d 502. For us to hold under the facts presented that the lack of a face-to-face confrontation between Gallagher and McBride violated confrontation would be contrary to existing precedent. Dutton v. Evans, (1970) 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (hearsay admissible); United States v. Garner, (4th Cir.1978) 574 F.2d 1141, cert. denied 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (grand jury testimony admissible); United States v. West, (4th Cir.1978) 574 F.2d 1131 (grand jury testimony admissible); Alspach, 440 N.E.2d at 502 (hearsay admissible). Hearsay is generally admissible if it meets a well-rooted hearsay exception despite the fact that the one who makes the statement never comes face-to-face with the defendant. See generally, Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608; see also United States v. Carlson, (8th Cir.1976) 547 F.2d 1346, 1355-60, cert. denied 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224. Similarly, under the circumstances of this case, confrontation was not violated even though Gallagher never had an opportunity to physically confront McBride.

Next we must determine whether the admission of the deposition at trial violated confrontation. Prior to 1982, Indiana Code section 35-1-31-8 provided that when defense counsel takes a deposition on behalf of the defendant, any objection based on confrontation is waived if the state subsequently seeks to admit the deposition at trial.3 Roberts v. State, (1978) 268 Ind. 348, 354-55, 375 N.E.2d 215, 220. In Roberts v. State, the deposition at issue was taken by defense counsel prior to the trial of a separate charge of theft and used against the defendant during his trial for murder. Our supreme court found that the defendant had waived his right to confront the deponent at trial. Although this statute was subsequently repealed,4 we believe Roberts v. State is still controlling and Gallagher's right to object on confrontation grounds was waived. The defendant argues that the right of confrontation cannot be waived by his counsel. However, courts have found a valid waiver of confrontation even though the normal formalities of a constitutional waiver were absent. See United States v. Goldstein, (9th Cir.1976) 532 F.2d 1305, cert. denied 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327; cf. United States v. Thevis, (5th Cir.1982) 665 F.2d 616, cert. denied 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303.

Furthermore, even if there was no valid waiver, the admission of the deposition still did not violate confrontation. Roberts v. State, 375 N.E.2d at 220 (DeBruler, J., concurring). The admission of an out-of-court statement does not violate confrontation if it appears that the witness was unavailable to testify at trial and that the statements admitted contain sufficient indicia of reliability. Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, 65 L.Ed.2d at 607. In the present case, unavailability was clearly shown by the state. McBride was subpoenaed to testify at trial but failed to appear. Upon his failure to appear, the state requested that a bench warrant issue for McBride's arrest. Record at 217. The state also attempted to locate the witness by using the National Crime Computer. Record at 230. In addition, the police contacted McBride's bondsman, ex-wife, and mother to aid in locating the witness. Record at 231-35. A policeman also went to McBride's last known address. Unavailability was, therefore, established because the witness could not be located despite a good faith effort by the prosecution. Id. at 75-76, 100 S.Ct. at 2543-44, 65 L.Ed.2d at 613-15.

Our next inquiry is whether the deposition contained sufficient indicia of reliability. In Ohio v. Roberts the United States Supreme Court faced a similar fact situation. At a preliminary hearing, defense counsel called a witness who proceeded to directly incriminate the defendant. At trial this witness was unavailable and the preliminary hearing testimony was admitted over defendant's confrontation objection. The Court found that even though defense counsel called the witness, his questioning at the preliminary hearing constituted cross-examination in form and purpose which enabled the Court to conclude that the pre-trial testimony contained sufficient indicia of reliability. Id. at 70-73, 100 S.Ct. at 2541-43, 65 L.Ed.2d at 610-12. In the present case, the manner of questioning at the deposition, as well as the fact that McBride received a plea agreement in exchange for his testimony against Gallagher, make it clear that defense counsel considered McBride an adverse witness. Furthermore, the deposition is replete with leading questions which are the principal tool of cross-examination. Id. at 70-71, 100 S.Ct. at 2541, 65 L.Ed.2d at 610-11. The deposition is complete and comprehensive; it includes a total of 607 questions and takes up 80 pages in the transcript. Record at 514-95. McBride testified under oath to questions regarding his perception and memory of the incidents surrounding the crime. Id.; see also, Roberts v. State, 375 N.E.2d at 221 (DeBruler, J., concurring). McBride was also questioned at length concerning his truth and veracity and possible bias. Record at 480-93.5 This type of questioning was, in both form and purpose, cross-examination and thus, the deposition contained sufficient indicia of reliability and was properly admitted at trial.

Issue Two

The next argument is that McBride's testimony was not a deposition but merely a sworn statement because the formalities of a deposition were not complied with. Gallagher concludes that the statement was therefore not admissible under T.R. 32(A)(3)6 and was in reality inadmissible hearsay. The major defect in the deposition's form was that it was neither signed by the witness nor was signature waived.

We first note that the admission of a deposition at trial will be affirmed by this court unless it appears that such admission constituted an abuse of discretion. Jarvis v. State, (1982) Ind., 441 N.E.2d 1, 7; see also, Indiana Rules of Procedure, Trial Rule 32(A). Indiana Rules of Procedure, Trial Rule 30(E)7 requires that the witness be permitted to review the transcript of his deposition and then sign it. However, T.R. 30(E)(3) and (4) provide for the use of a deposition at trial even though it is unsigned.8 Also, the defendant never argues that any inaccuracy exists in the substance of the deposition. We conclude that the absence of both a signature and formal waiver of signature does not necessarily preclude the admission of a deposition under T.R. 32(A). Gallagher directs us to the seemingly mandatory language of the rule and the case of Southern Indiana Gas & Electric Co. v. Robertson (1976) 170 Ind.App. 655, 354 N.E.2d 348, where this court held that the trial court erred by admitting an unsigned deposition into evidence. In Southern Indiana the witness' deposition was taken prior to trial because the witness was going to be out of the state at the time of the trial. The court stated that the trial judge should have delayed the trial until the witness' signature could have been obtained. If the trial judge in the present case had continued the trial until the deposition complied with T.R. 30(E), such a delay could have lasted forever. McBride was not simply out of the state. His whereabouts were unknown and he could not be located despite diligent efforts. It was not known when, or even if, McBride would be located and to delay trial pending compliance with T.R. 30(E) would have been unreasonable.9 Furthermore, McBride disappeared within four or five days after his deposition. (Appellee's brief at 11.) The state had only a very short time within which to get the deposition transcribed, reviewed and signed by McBride before he disappeared. Under these circumstances, we believe the trial judge did not abuse his discretion in admitting the deposition despite the absence of the signature.

Gallagher next argues McBride's testimony was not a deposition because written notice was never sent to the State as required by T.R. 30(B)(1). We understand the defendant's argument to be that because defense counsel did not send written notice to the state concerning the time and place of the deposition McBride's testimony lost its character as a deposition and was therefore not admissible under T.R. 32(A). We direct the defendant to T.R. 32(D)(1) which states: "(D) Effect of errors and irregularities in depositions. (1) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice... ." This rule indicates that the only party that may complain about notice is the one who was to receive notice. Therefore we conclude that, in this case, the only party who can challenge the propriety of the notice is the state since the deposition was taken at the request of defense counsel.

The defendant's final argument that McBride's testimony lacked the requisite formalities of a deposition is based on the contention that McBride was not subpoenaed to appear at the deposition. Gallagher reads T.R. 30(B)(2) as requiring the issuance of a subpoena demanding the witness to appear before pre-trial testimony can rise to the level of a deposition. Trial Rule 30(A)(2) states: "The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. [Emphasis supplied.]" The use of the term "may" makes it obvious that defendant's argument is without merit.

In finding that McBride's testimony was in fact a deposition, we conclude it was properly admitted pursuant to T.R. 32(A)(3)(d).

Judgment affirmed.

NEAL, P.J., and ROBERTSON, J., concur.