STATEMENT OF THE CASE
Michael Gallagher appeals from a conviction for forgery, a class C felony. We affirm.
Michael Gallagher was arrested with William McBride for forging a doctor's signature on a prescription for Talwin.
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
Gallagher initially claims that his right of confrontation was violated because he was absent when the deposition was taken.
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
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.
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
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.
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)
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)
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
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).
NEAL, P.J., and ROBERTSON, J., concur.
U.S. Const. amend. 6 states: