Opinion
Court of Appeals Case No. 21A-CR-89
08-09-2021
STATE of Indiana, Appellant, v. Rashad Deandru WELLS, Appellee.
Attorneys for Appellant: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaendar, Supervising Deputy Attorney General, Indianapolis, Indiana Attorney for Appellee: Jennifer L. Koethe, Navarre, Florida
Attorneys for Appellant: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaendar, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellee: Jennifer L. Koethe, Navarre, Florida
MEMORANDUM DECISION
Brown, Judge.
[1] In this interlocutory appeal, the State of Indiana challenges the trial court's grant of Rashad Deandru Wells's motion to depose alleged child victim. We affirm.
Facts and Procedural History
[2] In June 2020, the State charged Wells with child molesting and attempted child molesting as level 1 felonies, incest and child molesting as level 4 felonies, and contribution to the delinquency of a minor as a class B misdemeanor involving Victim 1, who was under fourteen years of age at the time of the charged offenses.
Specifically, the information alleged Wells committed child molesting as a level 1 felony, attempted child molesting, and incest "on or about or between March 1, 2020[,] and March 31, 2020," and committed child molesting as a level 4 felony and contributing to the delinquency of a minor "on or about or between February 3, 2016[,] and March 31, 2020." Appellant's Appendix Volume II at 13-14.
[3] Prior to the State charging Wells, Victim 1 was interviewed at the Michigan City Police Department on April 24, 2020, and she provided a statement which indicated that Wells had molested her. Also according to the probable cause affidavit, Victim 1 was interviewed a second time at a later date.
[4] On September 28, 2020, Wells filed a petition for authorization to depose Victim 1, indicating a "13 year old victim should be able to provide a better time frame than one month," "[t]he Statute now in effect requires a defendant to establish that a deposition is in the interest of justice and that extra-ordinary circumstances exist in the case," and "[e]xtra-ordinary circumstances is not defined, is vague, and will not sustain a due process challenge." Appellant's Appendix Volume II at 48. The petition also asserted that preparation of rebuttal and/or impeachment witnesses was impossible if a victim could not be deposed and that the "innocence or guilt of a person who may be incarcerated between 20 and 40 years certainly outweighs the risk of harm to a 13 or 14 year old alleged victim." Id. at 49.
[5] Following the filing of the State's response, the trial court held a hearing on Zoom on October 22, 2020, at which Wells's counsel argued he had a police report and two interviews of Victim 1, "none of which [he] could use for impeachment, because they weren't made under oath," and that, "without a deposition this child is free to come in and say whatever she chooses to say, and that will be the truth of the day," which he could not defend against. Transcript Volume II at 10. At a November 5, 2020 hearing on Zoom, the court indicated it would allow the deposition on a "[r]egular course of conduct ... as long as it is going okay" and stated that it would permit the defendant's counsel to "start it and if there's something that happens during the middle of that deposition that is uh, under which the victim who – or the deponent is, you know, under too much stress" "[o]r is panicking or there's some emotional trauma to that victim," it could "always change [its] mind in mid-deposition." Id. at 16-17. It also stated its desire to protect the victim's rights and indicated that the prosecutor, who would be present, would have an opportunity "to say, stop," and "change the terms and conditions under which the Defendant's presence ... is here." Id. at 17. In its order granting Wells's motion, the court indicated it permitted the deposition "as long as the victim is not under too much stress or deposition creates a traumatic event" and for Wells to be present at the deposition. Appellant's Appendix Volume II at 66.
[6] On December 6, 2020, the State filed a Motion to Reconsider or to Certify Order for Interlocutory Appeal, and on December 31, 2020, filed a notice that stated it had been notified on December 17, 2020, that Victim 1 had been admitted to Michiana Behavioral Health for suicidal ideation. Following a hearing on Zoom, the court denied the State's motion to reconsider and granted its motion for certification for interlocutory appeal.
Discussion
[7] The State argues that the trial court violated Ind. Code § 35-40-5-11.5 by authorizing Wells to depose Victim 1 and that he did not prove by a preponderance of the evidence that there were any extraordinary circumstances such that the interest of justice rendered the deposition necessary. It also argues the trial court's order did not comply with statutory requirements and failed to describe the reasons for granting the petition and setting forth the manner in which the deposition would be conducted.
[8] The Indiana Supreme Court "has recognized on multiple occasions that the Indiana Trial Rules ‘are designed to allow liberal discovery.’ " Beville v. State , 71 N.E.3d 13, 18 (Ind. 2017) (quoting Richey v. Chappell , 594 N.E.2d 443, 445 (Ind. 1992) (some internal quotations omitted)). "Trial courts have broad discretion on issues of discovery." Id. (citing Hardman v. State , 726 N.E.2d 1201, 1206 (Ind. 2000) ). The "standard of review in discovery matters is limited to determining whether the trial court abused its discretion." Hale v. State , 54 N.E.3d 355, 357 (Ind. 2016) (quoting Crawford v. State , 948 N.E.2d 1165, 1169 (Ind. 2011) ). Matters of statutory interpretation present pure questions of law and are thus reviewed de novo. Matter of M.S. , 140 N.E.3d 279, 282 (Ind. 2020) (citing In re Adoption of B.C.H. , 22 N.E.3d 580, 584 (Ind. 2014) ). We "presume[ ] that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals." Id. (quoting Rodriguez v. State , 129 N.E.3d 789, 793 (Ind. 2019) ).
[9] Ind. Code § 35-40-5-11.5, which is part of an article construed to preserve and protect the rights to which a victim is entitled "without interfering with the rights of the accused to receive a fair trial," Ind. Code § 35-40-3-1, provides that it applies only to criminal cases involving a child less than sixteen years of age who is the victim or alleged victim of a sex offense and that a defendant "may depose[ ] a child victim only in accordance with this section," but
Definitions that apply throughout the section include: "(4) "Deposition" or "depose" means a deposition upon oral examination, or taking a deposition upon oral examination, as described in Indiana Trial Rule 30." Ind. Code § 35-40-5-11.5(b).
(d) ... may not take the deposition of a child victim unless the defendant contacts the prosecuting attorney before contacting the child, and one (1) or more of the following apply:
(1) The prosecuting attorney agrees to the deposition. The prosecuting attorney may condition the prosecuting attorney's agreement to the deposition upon the defendant's acceptance of the manner in which the deposition shall be conducted.
(2) The court authorizes the deposition after finding, following a hearing under subsection (f), that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim's testimony.
(3) The court authorizes the deposition after finding, following a hearing under subsection (g), that the deposition is necessary:
(A) due to the existence of extraordinary circumstances; and
(B) in the interest of justice.
(e) If the prosecuting attorney does not agree to the deposition, the defendant may petition the court for authorization to depose the child victim under subsection (d)(2), (d)(3), or both subsection (d)(2) and (d)(3). Upon receipt of the petition, the court shall notify the prosecuting attorney and set a hearing to determine whether to authorize a deposition of the child victim, and, if applicable, to determine the manner in which the deposition shall be conducted.
(f) The court shall authorize the deposition of a child victim under subsection (d)(2) if the defendant proves by a preponderance of the evidence that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim's testimony.
(g) The court may not authorize the deposition of a child victim under subsection (d)(3) unless the defendant establishes by a preponderance of the evidence that the deposition is necessary:
(1) due to the existence of extraordinary circumstances; and
(2) in the interest of justice.
Ind. Code § 35-40-5-11.5(c) - (g). The section provides a list of factors for the trial court to consider in ruling upon a request for an authorization of the deposition of a child victim under subsection (f) or (g). See Ind. Code § 35-40-5-11.5(h).
Subsection (h) provides that the court shall consider the age of the child, the rights of the victim under Ind. Code § 35-40-5-1, and any other relevant factors or special considerations. Ind. Code § 35-40-5-1 provides that a victim "has the right to be: [ ] treated with fairness, dignity, and respect; and [ ] free from intimidation, harassment, and abuse[ ] throughout the criminal justice process."
[10] "This Court has found that [ Ind. Code § 35-40-5-11.5 ] is a procedural law, meaning that ‘[it] prescribe[s] the manner in which ... rights and responsibilities may be exercised and enforced in a court.’ " Church v. State (filed June 28, 2021), Ind. App. No. 21A-CR-68, slip op. at 3 (quoting Sawyer v. State (filed May 19, 2021), Ind. App. No. 20A-CR-1446, slip op. at 5, trans. pending ). See State ex rel. Blood v. Gibson Cir. Ct. , 239 Ind. 394, 400, 157 N.E.2d 475, 478 (1959) (noting that, unlike substantive laws, procedural laws "prescribe the manner in which ... rights and responsibilities may be exercised and enforced in a court."), reh'g denied ; see also Mounts v. State , 496 N.E.2d 37, 39 (Ind. 1986) ("The determination of when a general rule of law is procedural or substantive was well expressed by this Court in State ex rel [.] Blood, et al. v. Gibson Circuit Court .... The Court found in that case that the right to a change of judge granted by § 27-802 was a substantive right which could be conferred only by the Legislature, but that the method and time of asserting such right were matters of procedure and fell within the category of procedural rules. The Court then found that Supreme Court Rule 1-12(B), which conflicted with the statute regarding the time in which such right had to be asserted, superseded the statute in that regard. ") (emphases provided).
[11] "It is a fundamental rule of Indiana law that when a procedural statute conflicts with a procedural rule adopted by the supreme court, the latter shall take precedence." Key v. State , 48 N.E.3d 333, 339 (Ind. Ct. App. 2015) (citing Bowyer v. Ind. Dep't of Nat. Res. , 798 N.E.2d 912, 917 (Ind. Ct. App. 2003) ). "Thus, when a procedural statute conflicts with the Indiana Rules of Trial Procedure, the trial rules govern, and phrases in statutes that are contrary to the trial rules are considered a nullity."Id. (citing Bowyer , 798 N.E.2d at 917 ). See also State v. Holtsclaw , 977 N.E.2d 348, 350 (Ind. 2012) ("Our ‘rules of procedure prevail over any statute or statutory construction.’ ") (quoting State ex rel. Crawford v. Del. Cir. Ct. , 655 N.E.2d 499, 500 (Ind. 1995) ).
[12] Ind. Trial Rule 26 provides that parties may obtain discovery by "depositions upon oral examination or written questions," and indicates that, "[u]nless the court orders otherwise under subdivision (C) of this rule, the frequency of use of these methods is not limited." Ind. Trial Rule 30(A) provides:
Ind. Trial Rule 26(C) deals with protective orders and states that, upon motion and for good cause shown, the court in which the action is pending or "alternatively, on matters relating to a deposition, the court in the county where the deposition is being taken," may make "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following," and it lists several examples, including that the discovery "not be had," "may be had only on specified terms and conditions, including a designation of the time or place," "may be had only by a method of discovery other than that selected by the party seeking discovery," or that "certain matters not be inquired into, or that the scope of the discovery be limited to certain matters."
When depositions may be taken . After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of twenty [20] days after service of summons and complaint upon any defendant except that leave is not required:
(1) if a defendant has served a notice of taking deposition or otherwise sought discovery; or
(2) if special notice is given as provided in subdivision (B)(2) [a subdivision regarding the taking of a deposition by the plaintiff] of this rule.
The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45.... [ ]
To the extent the State suggests that the legislature must grant a substantive right to conduct depositions before Trial Rules 26 and 30 become applicable, we note that Ind. Code § 35-37-4-3 provides: "The state and the defendant may take and use depositions of witnesses in accordance with the Indiana Rules of Trial Procedure."
[13] This Court recently emphasized in Church that, "where a statute and the Indiana Trial Rules are ‘incompatible to the extent that both could not apply in a given situation,’ ... ‘the rule governs on matters of procedure.’ " Slip op. at 3 (quoting Bowyer , 798 N.E.2d at 917 ; Garner v. Kempf , 93 N.E.3d 1091, 1099 (Ind. 2018) ) (internal citation omitted). In Sawyer , this Court reversed the denial of Sawyer's petition to depose his child accusers on the following basis:
Considering Ind. Code § 35-40-5-11.5 in light of the Indiana Trial Rules, we find that they are incompatible to the extent that both cannot apply in Sawyer's situation. [ Ind. Code § 35-40-5-11.5 ] contemplates that a defendant "may depose a child victim only in accordance with this section," whereas Ind. Trial Rule 26 provides that, unless in the case of protective orders, the frequency of use of the discovery methods including depositions "is not limited," and Ind. Trial Rule 30(A) provides that "any party may take the testimony of any person, including a party, by deposition upon oral examination " after commencement of the action. (Emphasis added). The statute further conflicts with the Indiana Trial Rules when it necessitates the prosecutor's permission, compare Ind. Code § 35-40-5-11.5(d), with Ind. Trial Rules 30 and 45(D), and when it requires a defendant to move for a hearing when the permission sought is not forthcoming and otherwise places the burden of proof on the defendant at the contemplated hearing. Compare Ind. Code § 35-40-5-11.5(e) - (g), with Ind. Trial Rule 26(C).
Slip op. at 7 (internal citations omitted). Concluding that, "[b]ecause the procedural provisions in the statute conflict with those of the Indiana Trial Rules, the provisions of the Indiana Trial Rules govern," we reversed the trial court's denial of Sawyer's request to depose the child victim. Id.
[14] Here, as in Sawyer , the process prescribed in Ind. Code § 35-40-5-11.5 for a defendant's deposition of a child accuser is incompatible with that enumerated in Trial Rules 26 and 30 to such extent that the statute and the Trial Rules cannot both apply to Wells. In such a scenario, the Trial Rules govern. See Ind. Code § 34-8-1-3 ("The supreme court has authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana. These rules must be promulgated and take effect under the rules adopted by the supreme court, and thereafter all laws in conflict with the supreme court's rules have no further force or effect. ") (emphasis added); Holtsclaw , 977 N.E.2d at 350 ("The General Assembly itself has recognized that we have sole authority over ‘practice and procedure in all the courts of Indiana,’ and that ‘all laws in conflict with the supreme court's rules have no further force or effect.’ ") (quoting Ind. Code § 34-8-1-3 ). Accordingly, we cannot say that the trial court abused its discretion in granting Wells's petition for deposition.
[15] For the foregoing reasons, we affirm the trial court's ruling.
[16] Affirmed.
Najam, J., and Riley, J., concur.