Victim’s posthumously admitted testimony supports murder conviction

Dave Stafford for www.theindianalawyer.com

A woman’s deposition identifying to police the man who shot her in the face was properly admitted in the suspect’s murder trial after the victim died, the Indiana Court of Appeals ruled Tuesday.

The panel affirmed murder and attempted murder convictions of Kenneth Brittain, who challenged the admissibility of the evidence as well as the trial court’s denial his motion for a mistrial. Brittain was convicted and sentenced to an aggregate 80 years in prison for the April 2013 murder of Timothy Denny and the attempted murder of Victoria Richie in Indianapolis.

Brittain sat behind the two in a truck during a drug transaction during which Richie said she turned to look at him only to find him holding a pistol on them. She said he fatally shot Denny before shooting her in the face. The truck crashed into a building, and police found Richie bleeding on the ground beside the crash.

Richie died in January 2014, before Brittain’s case came to trial, and he moved to exclude her sworn deposition testimony to investigators. In the deposition taken after her shooting, she identified Brittain as “Ken Bart,” a nickname he acknowledged he used, along with identifying characteristics.

Judge Elaine Brown wrote for the panel that unanimously affirmed Brittain’s conviction in Kenneth Brittain v. State of Indiana, 49A02-1511-CR-1784. “Brittain had the opportunity to and did cross-examine Richie, and accordingly we conclude that the court’s admission of Richie’s deposition did not violate Brittain’s confrontation rights under the Indiana Constitution,” Brown wrote. Likewise, the court did not abuse its discretion in admitting the deposition testimony into evidence.

Brittain also moved for a mistrial because handwritten notes from Richie were admitted in a trial when investigators asked her questions when she could not speak, and she wrote “Ken Bart” as the name of the man who shot her and Denny.

“Under these circumstances, in which Richie had just been brought to the hospital after being shot through the mouth, her vocalization was impaired, and she was situated in the shock room, we believe that she was still under the stress of excitement caused by the shooting and that she was accordingly incapable of thoughtful reflection, and we conclude that State’s Exhibit 11 was admissible as an excited utterance.  The court did not abuse its discretion when it admitted the exhibit, and it did not err in denying Brittain’s motion for a mistrial,” Brown wrote.