When Gordon refused to testify at trial, the trial court granted the State’s request to read Gordon’s deposition testimony into evidence. Thomas contends that, in so doing, the trial court deprived him of his constitutional right to confront the witnesses against him because he did not have an adequate opportunity to confront and cross-examine Gordon. . . . .
Thomas’s argument rests chiefly upon our Supreme Court’s decision in Howard v. State, 853 N.E.2d 461 (Ind. 2006). In Howard, the defendant was tried on child molesting charges. The alleged victim, who was twelve years old at the time of trial, became upset after answering a few preliminary questions and then refused to answer any more questions, including any questions of substance concerning the alleged molestations. The court tried several times, without success, to determine how it could alleviate the witness’s reluctance to testify further. Failing that, the trial court declared the witness unavailable and, over defense objection, granted the State’s request to admit the child’s pretrial deposition testimony into evidence. The defendant appealed to this court, which affirmed his conviction. Our Supreme Court granted transfer. Although the Supreme Court ultimately determined that the trial court erred in admitting the deposition, its discussion leads us to the opposite conclusion with respect to Gordon’s deposition.
In addressing the admissibility of the alleged victim’s deposition in Howard, the Court noted the requirement set out by the United States Supreme Court 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.’” Id. at 465 (quoting Crawford v. Washington, 541 U.S. 36, 68 (2004)).
Thomas characterizes the deposition of Gordon as a discovery deposition, not a testimonial deposition, and therefore impliedly argues that Crawford does not apply. According to Thomas, a discovery deposition, unlike a testimonial deposition, “does not give the defendant an adequate opportunity for cross-examination of the witness because the case is in the discovery stage and defense counsel may not yet have all the available information to conduct an effective cross-examination.” Appellant’s Brief at 5. Our Supreme Court addressed a similar argument in Howard. We first note the Court’s observation that “witness statements made during depositions are generally understood and widely recognized as testimonial.” Howard v. State, 853 N.E.2d at 465. Nevertheless, noting that “Crawford provides no guidance concerning what ‘opportunity’ is sufficient to satisfy the demands of the Sixth Amendment,” the Court acknowledged that litigators often divide depositions into two categories: discovery and testimonial. Howard v. State, 853 N.E.2d at 469. It also acknowledged that the motivation for taking a deposition for discovery purposes might differ from that of a testimonial deposition. The Court, however, seemed disinclined to resolve the question by undertaking an analysis that resulted in placing the deposition in one category or the other. Instead, the Court made two observations that guided its inquiry into whether the deposition in question was admitted consistent with the Crawford standard.
First, the Court described the deposition in Howard as “a vigorous and lengthy examination” that “lasted approximately two hours and resulted in ninety-two typewritten pages[.]” Id. at 469. The Supreme Court cited these facts to support its rejection of Howard’s claim that he had been denied his right of confrontation. Thomas would have us interpret the Supreme Court’s language in doing so as reflecting its view that depositions that are not similarly long and involved will not satisfy the requirement that the deposition be testimonial. We reject this interpretation for reasons that will be explained below. Thomas next contrasts the lengthy deposition conducted in Howard with the one conducted in the present case, where his “counsel specifically limited the deposition to discovery matters and did not conduct an extensive cross-examination to “‘cast doubt on the credibility’ of Gordon. Read into the transcript, the deposition is only 25 pages long and the questions asked by defense counsel were directed at what Gordon knew about the case.” Appellant’s Brief at 5. Therefore, the argument goes, because the deposition of Gordon was not as vigorous and lengthy as the one in Howard, the Crawford requirements were not met.
At this point, Thomas segues into a discussion of the most facially important of the Crawford elements, i.e., the opportunity to confront the witness during the deposition. Thomas contends he did not have an opportunity to confront Gordon at Gordon’s deposition because the scope of defense counsel’s questioning of Gordon was strictly limited – by Gordon’s counsel. Thomas contends, “Thomas’ counsel specifically limited the deposition to discovery matters and did not conduct an extensive cross-examination to ‘cast doubt on the credibility’ of Gordon.” Id. In fact, at the very outset of the deposition, counsel explainedhis intentions in that regard:
Mr. Gordon, we’re here for a discovery deposition today. What that means is this isn’t intended to replace you coming to trial, if there is a trial on this matter and testifying in front of a jury. Does that make sense?
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[A]ll right because this is a discovery deposition there are specifically some subject areas that I’m not going to cover. Also, the style and manner of the questioning would be different if this was intended to replace you testifying in Court. Does that make sense?
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[M]y client, Halston Thomas is not here today and he’s not waiving his right to have – to confront cross-examine witnesses or to have a face-to-face meeting with the witnesses against him, okay.
Transcript at 100-101. Clearly, counsel did not intend to question Gordon vigorously or in depth. This is not to say, however, that counsel did not have the opportunity to do so. The restrictions placed upon the scope, tenor, and purpose of the deposition were self-imposed and not dictated by law. Our reading of Howard leads us to conclude that the critical inquiry centers upon whether the opportunity was presented, not whether it was seized.
We return here to the conclusion left unexplained above, i.e., the mere fact that a deposition was not as vigorous and lengthy as the one before the Court in Howard does not foreclose the possibility that it will be classified as testimonial [footnote omitted] in nature and, as such,admissible if it meets the criteria set out in Crawford. After observing that the deposition in Howard was, in fact, vigorous and lengthy, and did not support a claim that the defendant did not have an opportunity to confront the witness in that setting, the Court stated:
Second, and perhaps more importantly, Crawford speaks only in terms of the “opportunity” for adequate cross-examination. The right of confrontation under the Sixth Amendment is honored where “the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” Maryland v. Craig, 497 U.S. 836, 847, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (quoting Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). Whether, how, and to what extent the opportunity for cross-examination is used is within the control of the defendant. … Only where a defendant has never had the opportunity to confront and cross-examine a witness does the admission of prior testimony at a subsequent proceeding violate the constitutional right of confrontation.
Howard v. State, 853 N.E.2d at 470 (emphasis supplied). This language reflects that opportunity is the critical inquiry. Thomas’s counsel had the opportunity to conduct a thorough and vigorous questioning of Gordon, but for unexplained reasons chose to limit its scope to something less than that. Notwithstanding those self-imposed strictures, the opportunity was there and thus Crawford was satisfied. We therefore conclude that the State established that Gordon was unavailable to testify at trial, and that Thomas had an opportunity to cross-examine Gordon at the deposition, which was testimonial in nature. See Crawford v. Washington, 541 U.S. 36.
MAY, J., and BARNES, J., concur.