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ATTORNEYS FOR APPELLANT
John (Jack) F. Crawford Crawford & Devane Indianapolis, Indiana Steven P. Stoesz Stoesz & Stoesz Westfield, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 29S05-0609-CR-322 RONALD C. HOWARD, JR., Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Hamilton Superior Court 3, No. 29D03-0206-FA-195 The Honorable Daniel J. Pfleging, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 29A05-0402-CR-101 _________________________________ September 6, 2006 Rucker, Justice.

After a trial by jury the defendant Ronald C. Howard, Jr., was found guilty of child molesting based largely upon the deposition testimony of a child witness who refused to testify at trial. Because there was no showing that the witness was unavailable for trial within the meaning of the protected person statute, the trial court erred in allowing the deposition into evidence. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.

Facts and Procedural History

Howard and Tina Brooks were married in October 1994. C.C., Brooks' daughter from a previous relationship, was three years old at the time. In August 1997 Brooks filed for divorce, which became final in the winter of 1998. In late 1997 C.C. told Brooks' male companion that on various occasions between July 1996 and October 1997 Howard had sexually molested her. These allegations were reported to the Hamilton County Sheriff's Department, but no charges were filed as a result. Because of behavioral problems C.C. began psychological counseling in the summer of 2002. Apparently during one of the counseling sessions C.C. recounted her allegations against Howard. As a consequence, on June 24, 2002 the State charged Howard with four counts of child molesting as Class A felonies. In due course both sides conducted

discovery, as a part of which Howard took C.C.'s pre-trial deposition. During this deposition C.C. gave details about Howard's alleged molestations.

During the November 2003 trial the State called C.C. as a witness. She was twelve years old at the time. After identifying Howard and testifying about homes where she had lived and schools she had attended, C.C. was then asked, "tell me please what rape means." Tr. at 481. She responded: "[s]omething that people do to little kids." The record shows that C.C. then started crying, refused to answer any more questions, and requested a break. Id. at 482. The break lasted approximately an hour, during which C.C. reportedly was crying and throwing up. After the break the trial court conducted a hearing outside the presence of the jury to determine whether C.C. was able to continue her testimony. The following exchange occurred. [Trial Court] Okay. Now you've met [the deputy prosecutor] before and she was asking you some questions just a few minutes ago, is that correct? [C.C.] Yes. [Trial Court] And I think the last question she asked you, you, you gave an answer to and then you started crying, is that right? [C.C.] Yes. [Trial Court] If [the deputy prosecutor] had some additional questions of you do you believe that you could answer those questions? 2

[C.C.] No. [Trial Court] And can you give me an idea of why not or if there's anything I could do to make things more comfortable for you so that you could answer those questions. [C.C.] No. [Trial Court] You've had an opportunity in the past to answer any questions from [defense counsel], is that correct? [C.C.] Yes. [Trial Court] And on those days I believe [the deputy prosecutor] was there also, is that correct? [C.C.] Yes. [Trial Court] Is there anything different about what we're doing here that makes it so that you can't answer these questions? [C.C.] No. [Trial Court] Would you try? [C.C.] I can't. (Crying) [Trial Court] You can't? Can you think of anything that I might be able to do to make you more comfortable so that you can? [C.C.] (Crying) Id. at 491-92. During attempted follow-up questions by the State, C.C. continued crying and responded "no" to the questions: "Is there anything that you can think of that anybody can do that would help you be able to testify today in Court?" and "Do you think it would help at all if you didn't have to testify until Monday?" Id. at 493. The defense asked several questions about with whom C.C. talked during the break, and she responded appropriately. Id. After

entertaining arguments of counsel, the trial court determined that C.C. was unavailable to testify. Over Howard's objection the trial court allowed an edited version of C.C.'s pre-trial deposition to be introduced into evidence and read to the jury.

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At the close of trial the jury found Howard guilty of one count of child molesting as a Class A felony and not guilty on the remaining counts. The trial court sentenced Howard to thirty-five years in the Department of Correction. Howard appealed raising several issues for review including whether he was denied the right of confrontation. The Court of Appeals affirmed. See Howard v. State, 816 N.E.2d 948 (Ind. Ct. App. 2004). We now grant Howard's petition to transfer, reverse the judgment of the trial court, and remand this cause for further proceedings.

Discussion I.

The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." The Fourteenth Amendment makes this right of confrontation obligatory upon the states. 1 Pointer v. Texas, 380 U.S. 400, 406 (1965); Brady v. State, 575 N.E.2d 981, 985 (Ind. 1991). The essential purpose of the Sixth Amendment right of confrontation is to ensure that the defendant has the opportunity to cross-examine the witnesses against him. State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993). As this Court has recognized, the right to adequate and effective cross-examination is fundamental and essential to a fair trial. Id. It includes the right to ask pointed and relevant questions in an attempt to undermine the opposition's case, as well as the opportunity to test a witness' memory, perception, and truthfulness. Id.

The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified in Crawford v. Washington, 541 U.S. 36 (2004). Before Crawford, the issue was controlled by the Supreme Court's holding in Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, a hearsay statement of an absent witness could be admitted in a criminal trial without violating the right of confrontation if (1) it was shown that the declarant was unavailable and (2) the out-of-court statement bore adequate indicia
Before the Court of Appeals Howard contended that he was deprived of his right of confrontation under Article I, Section 13(a) of the Indiana Constitution as well as the Sixth Amendment to the U.S. Constitution. The Court of Appeals declined to address the state constitutional claim because Howard failed to provide separate analysis. On transfer Howard raises no issue of error in this regard. We therefore address the federal constitutional claim only.
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of reliability. This test focused upon the reliability of the statement. As the Roberts Court explained, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore "particularized guarantees of trustworthiness." Id. at 65-66.

In Crawford, the Supreme Court dispensed with the reliability analysis set forth in Roberts and held instead that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement was testimonial and (2) the declarant is unavailable and the defendant lacked a prior opportunity for cross-examination. The Court emphasized that if testimonial evidence is at issue, then "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68. A critical portion of the Court's holding was the phrase "testimonial evidence."

In this case Howard contends that in light of Crawford the trial court erred in allowing C.C.'s pre-trial deposition into evidence because (1) C.C. was not unavailable to testify at trial within the meaning of Crawford and (2) he was denied the right of cross-examination as required by Crawford.

We first observe there has been no claim in this case that the challenged statements in C.C.'s deposition were anything other than testimonial. Indeed witness statements made during depositions are generally understood and widely recognized as testimonial. See Davis v.

Washington, 126 S.Ct. 2266, 2275-76 (2006). And Crawford itself acknowledged "[v]arious formulations of th[e] core class of `testimonial statements,'" among them the "extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Crawford, 541 U.S. at 51-52 (citations omitted, emphasis added). In any event, contrary to Howard's contention the Crawford Court neither defined nor addressed the meaning of "unavailability." As we recently observed, "[t]he more general unresolved issue under Crawford is what it means to say a witness is `available at trial for cross-examination.'" Fowler v. State, 829 N.E.2d 459, 465 (Ind. 2005).

In Fowler, the defendant's wife was the State's key witness in a prosecution for domestic battery. Called to the stand, the wife answered some preliminary questions asked by the State. 5

But after being shown pictures of herself taken at the scene and asked how that happened, she responded, "I don't want to testify. I can't do this . . . . I don't want to testify no more!" Id. at 462. After a recess defense counsel attempted to cross-examine the wife. She responded in much the same fashion as she had responded to the State. On grounds of the excited utterance exception to the hearsay rule, and over the defendant's hearsay objection, the trial court admitted into evidence the wife's statements given to a police officer the day the alleged offense occurred. The defendant was convicted, and his conviction was affirmed on appeal. On transfer we addressed an issue similar to the one before us: The precise issue in this case is whether a witness who is present and takes the stand, but then refuses to testify with no valid claim of privilege, is a witness who "appears for cross-examination" (as that term is used in Crawford) if no effort is made to compel the witness to respond. Id. at 465. Acknowledging the difficult choices that defendants and lawyers must make in highly charged settings such as a victim's refusal to testify, and expressing sympathy for victims of domestic violence, we concluded, "the defendant must ask the trial judge to put a recalcitrant witness to the choice of testifying or contempt, or forgo a Confrontation Clause challenge to the introduction of the witness's earlier statements." Id. at 462. In essence, we determined that a witness who takes the stand but refuses to answer questions, with no claim of privilege, is "available" until she refuses to answer questions after being ordered to do so. Id. at 461.

Our conclusion in Fowler is uniquely suited for reluctant adult witnesses in general and reluctant adult victims of domestic violence in particular because this category of witnesses is "left to the harsh reality of ordinary trial procedures." Id. at 462. However, as we noted, the legislature has provided a mechanism for determining the availability of "child victims of sexual abuse" who "by virtue of their age, are by far the most likely candidates to be unable or unwilling to testify at the trial of the person accused of abusing them." Id. at 461. With Indiana Code section 35-37-4-6, sometimes referred to as the protected person statute, our legislature has enacted specific provisions intended to preserve the confrontation rights of the accused while at the same time "reducing the trauma for child victims in sexual abuse cases and easing the task of

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prosecuting the perpetrators." Miller v. State, 517 N.E.2d 64, 71 (Ind. 1987), superceded by statute on other grounds. 2

Under the protected person statute a determination that a child witness is unavailable may be predicated only upon a trial court finding (1) from testimony of a psychiatrist, physician, or psychologist and other evidence, if any, that the child will suffer emotional distress such that she cannot reasonably communicate if testifying in the physical presence of the defendant, (2) the child cannot participate at trial for medical reasons, or (3) the child is legally incompetent to
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At the time of trial Indiana Code section 35-37-4-6 (1994) provided in relevant part: (c) A statement or videotape that: (1) is made by a person who at the time of trial is a protected person; (2) concerns an act that is a material element of an offense listed in subsection (a) that was allegedly committed against the person; and (3) is not otherwise admissible in evidence; is admissible in evidence in a criminal action for an offense listed in subsection (a) if the requirements of subsection (d) are met. (d) A statement or videotape described in subsection (c) is admissible in evidence in a criminal action listed in subsection (a) if, after notice to the defendant of a hearing and of his right to be present, all of the following conditions are met: (1) The court finds, in a hearing: (A) conducted outside the presence of the jury; and (B) attended by the protected person; that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability. (2) The protected person: (A) testifies at the trial; or (B) is found by the court to be unavailable as a witness for one (1) of the following reasons: (i) the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate. (ii) The protected person cannot participate in the trial for medical reasons. (iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath. (e) If a protected person is unavailable to testify at the trial for a reason listed in subsection (d)(2)(B), a statement or videotape may be admitted in evidence under this section only if the protected person was available for cross-examination: (1) at the hearing described in subsection (d)(1); or (2) when the statement or videotape was made.

The statute was amended in 2004 and again in 2005. Those amendments, however, do not affect our analysis.

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testify. 3 If the child is found to be unavailable for trial by the existence of any one of the foregoing circumstances, and the trial court finds sufficient indications of reliability, then the child's deposition may be admitted in evidence "if the [child] was available for crossexamination . . . when the statement . . . was made." Ind. Code

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