COA divided over denial of deposition request

Jennifer Nelson for www.Theindianalawyer.com

The Indiana Court of Appeals was split in a decision Wednesday regarding whether a man on trial for a drug charge should have been allowed to depose two witnesses prior to trial. The judges didn’t agree as to which caselaw is controlling in the matter.

Thomas Hale faced a charged of Class A felony dealing in methamphetamine. Before his trial, he learned two co-defendants arrested at the same time as Hale entered into plea agreements. Hale wanted to depose them at public expense. The state didn’t object, but the trial court denied the request. The two testified at trial and Hale’s counsel cross-examined them. He never objected to the introduction of their testimony and did not seek a continuance. Hale was convicted and sentenced to 40 years in prison.

The majority in Thomas L. Hale v. State of Indiana, 35A02-1501-CR-57, noted that in Murphy v. State, 265 Ind. 116, 120-21, 352 N.E.2d 479, 482-83 (1976), the deprivation of the right to depose witnesses was not subject to a harmless error analysis. But Judges L. Mark Bailey and John Baker believed subsequent caselaw “tempers” the holding in Murphy, such as O’Conner v. State, 272 Ind. 460, 399 N.E.2d 364 (1980). That case, in which O’Conner sought to depose witnesses during trial, deals with preserving this issue for appellate review. The majority concluded that since Hale did not seek a ruling in limine excluding the testimony of the two witnesses after the pre-trial denial of his motion for payment of deposition expenses, he has waived his argument for appellate review.

Judge Paul Mathias wrote in a separate opinion that the denial of Hale’s request was improper based on Murphy and that O’Conner is distinguishable because it deals with a defendant’s request to depose certain witnesses during trial because the witnesses had not been disclosed to the defendant prior to trial. The defendant in O’Conner did not request the proper remedies for claims that the state had violated a discovery order.

“I believe that Murphy suggests that denying a defendant the right to depose a witness before trial is a violation of due process, i.e., fundamental error, which need not be preserved,” Mathias wrote. “Pursuant to Murphy, I would hold that depriving the defendant the ability to depose the State’s witnesses was an abuse of discretion and reversible error.”