Katie Stancombe for www.theindianalawyer.com

A victim unavailable to appear in court because of the defendant’s coercion to remain silent does not mean admitting her prior statements is considered hearsay, the Indiana Court of Appeals affirmed Monday.

In November 2016, S.G. hosted a house party at her home, to which Robert Carr III had not been invited.

Carr, who was on house arrest and wore an ankle monitoring device, arrived during the party and proceeded to the basement where he found S.G. with the other party attendees. Carr was in the basement for two to three minutes before he asked S.G. to come outside to help him with something.

Approximately 20 minutes later, a guest drove up to the home and saw S.G. lying on the ground in a puddle, unresponsive. When paramedics arrived, they found S.G. in critical condition. She was covered in blood, having sustained a stab wound to her left eye. She later told police that Carr had held her in his vehicle while armed with a steak knife and stabbed her.

Carr was charged with Level 3 felony criminal confinement while armed with a deadly weapon, Level 5 felony battery resulting in serious bodily injury and Level 6 felony escape. A no-contact order was also issued that prohibited Carr from having contact with S.G.

In March 2017, several months before his trial date, Carr began sending apology letters to S.G. Her lawyer informed Carr that S.G. was “on board” and mentioned plea negotiations. Over the course of the following months leading up to his trial date, Carr made 384 phone calls to S.G. in attempts to convince her to change her story in exchange for $20,000 he promised to give her upon his release.

S.G. did not appear for a bail review hearing in September 2017, nor respond to a subpoena to appear for Carr’s jury trial in January 2018. The State moved to admit S.G.’s hospital statement to Detective Cobain when S.G. identified Carr as the person who had held her in his car while holding a knife and who had stabbed her in her left eye with the knife, arguing that it was admissible due to Carr having procured S.G.’s absence from trial through wrongdoing.

A jury found Carr guilty of numerous felonies. The trial court entered judgment on convictions of battery, confinement and escape, imposing an aggregate 15-year sentence.

On appeal, Carr argued that the admission of S.G.’s statement violated his Sixth Amendment confrontation rights and that the trial court abused its discretion when it admitted S.G.’s statement pursuant to a hearsay exception.

However, the Indiana Court of Appeals found that the forfeiture by wrongdoing doctrine protects the integrity of the judicial process. Citing Davis v. Washington, 547 U.S. 813, 833 (2006), it noted that “when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce.”

The appellate court found that a “plan was afoot” to prevent Carr’s conviction which was contingent on S.G. not appearing for trial when he persistently pursued communication with her despite the no-contact order issued in March 2017.

“We conclude that the preponderance of the evidence showed that Carr’s offers to S.G. of money, a car, and a place to stay were part of an intensive campaign on his part to convince S.G. not to appear at his trial and that the evidence supports a reasonable inference that this campaign was the reason why S.G. did not appear,” Judge Robb wrote for the court.

The appellate court concluded that the Marion Superior Court did not abuse its discretion when it found that S.G. was unavailable for trial and admitted her prior statement.

The case is Robert Carr III v. State of Indiana, 18A-CR-286.