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Brittain v. State

Court of Appeals of Indiana

January 31, 2017

Kenneth Brittain, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Grant Hawkins, Judge Trial Court Cause No. 49G05-1304-MR-27966

          Attorney for Appellant John (Jack) F. Crawford

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Deputy Attorney General

          Brown, Judge.

         [¶1] Kenneth Brittain appeals his convictions for murder and attempted murder as a class A felony. Brittain raises three issues which we revise and restate as:

I. Whether the court's admission of deposition testimony violated Brittain's right of confrontation;
II. Whether the court abused its discretion in admitting deposition testimony into evidence; and
III. Whether the court erred by denying Brittain's motion for a mistrial.

         We affirm.

         Facts and Procedural History

         [¶2] On April 26, 2013 at approximately 10:31 p.m., Indianapolis Metropolitan Police Department ("IMPD") Officer Joel Anderson responded to a call of shots fired in Indianapolis, Indiana, and upon arriving observed a pickup truck, which was still smoking, driven through the wall of an apartment building. Inside the truck, Officer Anderson observed a male, later identified as Timothy Denny, who had been fatally shot twice in the back of the head, behind the steering wheel. He also observed a female victim lying outside the building on the ground who was alive, bleeding from the face and neck area, and crying, and she identified herself as Victoria Richie. IMPD Officer David Carney, who had also arrived at the scene, spoke with Richie, who said she had been shot, and when asked her who did it she said "it was Bart." Transcript at 144, 149. Richie gave a description of "Bart" as an African-American male with burn marks on his face. Id. at 149. Richie was transported to Wishard Hospital.

         [¶3] IMPD Detective Greg Hagan had just "logged on, " meaning he "got on [his] radio and marked on duty" when he heard a dispatch about a shooting, and "[s]hortly thereafter" he was asked to check on one of the victims at Wishard Hospital. Id. at 172-173. He proceeded to "the shock room wing" at the hospital where he met Officer Aaron Schlesinger, who had followed the ambulance from the scene of the shooting. Id. at 173. After receiving an initial rundown from Officer Schlesinger, Detective Hagan went into the shock room and met Richie. Detective Hagan attempted to interview her at the hospital, but she had a difficult time speaking because she had been shot through the mouth. To accommodate her injury, Detective Hagan asked Richie to write down her answers to his questions on a piece of paper. Detective Hagan asked Richie who had shot her and she wrote down "Ken Bart."[1] Id. at 183; see also State's Exhibit 11.

         [¶4] Police recovered a cell phone later identified as belonging to Brittain from the back seat of the pickup truck. They also examined Richie's cell phone. Police obtained cell tower records, text message records, and Facebook instant message records from the two phones, and they were able to extract the messages and show a pattern of activity between the phones throughout the day on April 26, 2013, ending at about 10:15 p.m.

         [¶5] On April 28, 2013, IMPD Detective Chuck Benner spoke with a confidential informant with whom he had been associated for at least ten years, and, following the conversation, he drove to a vehicle and recovered a handgun which was located on the front seat and had a magazine next to it. The handgun was identified as a Walther .22 caliber semi-automatic. Police later matched the gun with shell casings recovered from the pickup truck.

         [¶6] On April 30, 2013, the State charged Brittain with Count I, murder; and Count II, attempted murder as a class A felony. On January 23, 2014, Brittain's defense counsel deposed Richie. Richie later died.[2] On July 29, 2015, the State filed a list of witnesses which included Richie by her deposition as a potential witness. At a pretrial conference held on July 31, 2015, the court addressed a motion to exclude Richie's deposition filed by Brittain. Brittain agreed that Richie was "unavailable" for purposes of Ind. Evidence Rule 804, but he argued that its admission would violate his confrontation rights under the Sixth Amendment and Article 1, Section 13 of the Indiana Constitution. After hearing argument, the court denied his request to exclude the deposition. Brittain then asserted that the deposition lacked "indicia of reliability" because Richie "never signed or reviewed the deposition." Transcript at 9. The State responded that the deposition lasted nearly two hours and resulted in 110 pages and argued that "the fact that she was there, she was sworn to an oath to tell the truth and was, had every opportunity . . . to examine her, " and that accordingly the deposition was reliable. Id. at 10. The court again denied Brittain's motion to exclude.

         [¶7] On September 28, 2015, the court commenced a jury trial. At trial, the State introduced the deposition of Richie. Brittain objected to the admission of the deposition, stating:

I believe it's a violation under the sixth amendment to the U.S. Constitution and Article I, Section 13 of the Indiana Constitution in regards to the right of Mr. Brittain to confront and cross examine witnesses and have a face-to-face confrontation with the witness and I would incorporate my ...

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