Harris v. State, No. 19A-CR-1863, __ N.E.3d __ (Ind. Ct. App., May 13, 2020).

Tavitas, J.

Byron Harris, Jr., appeals his conviction and sentence for attempted murder, a Level 1 felony. We reverse and remand.

Harris raises one dispositive issue, which we restate as whether Harris’ due process rights were violated when his mother was excluded from his trial as part of a witness separation order.

Harris argues that the trial court denied him due process when it barred Harris’ mother from being present during the trial due to the separation of witnesses order.

Harris raises an issue of first impression—whether the parent of a juvenile waived to adult court is subject to a separation of witnesses order. “When determining whether a juvenile has a constitutional right that the Supreme Court of the United States has not expressly recognized, we will decide the question based on ‘our own judicial examination of the various cases, statutes, and constitutional principles pertinent thereto.’” R.R., 106 N.E.3d at 1040 (quoting Bible v. State, 253 Ind. 373, 378, 254 N.E.2d 319, 320 (1970)).

Under Evidence Rule 615, a trial court is required to grant a motion for separation of witnesses. Hernandez v. State, 716 N.E.2d 948, 950 (Ind. 1999) (emphasis added). The determination of whether a witness qualifies for a Rule 615 exemption, however, is “within the trial court’s discretion and is subject to review for an abuse of that discretion.” Osborne v. State, 754 N.E.2d 916, 924 (Ind. 2001) (quoting Long, 743 N.E.2d at 256). “Rule 615’s exemptions should be ‘narrowly construed and cautiously granted.’” Id.

Under the juvenile code, however, a juvenile’s parent is a “part[y] to the proceedings described in the juvenile law and ha[s] all rights of parties provided under the Indiana Rules of Trial Procedure.” Ind. Code § 31-37-10-7; see K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006). As such, the juvenile’s parent falls under the Evidence Rule 615(a) exception for a party and cannot be excluded from juvenile proceedings. Accordingly, a juvenile’s parent is “a party not covered by the order for a separation of witnesses.” K.S., 849 N.E.2d at 542-43. Here, however, because Harris was waived to adult criminal court, the juvenile code granting his parents party status in the juvenile proceeding no longer applied.

Harris’ parent did not fall under the exception in Rule 615 for a “party who is a natural person” or the exception for “an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney.” Evid. R. 615(a), (b). The only remaining exception is for “a person whose presence a party shows to be essential to presenting the party’s claim or defense.” Evid. R. 615(c).

R.R. Donnelley & Sons Co. v. N. Texas Steel Co., 752 N.E.2d 112, 134 (Ind. Ct. App. 2001) (“This exemption most frequently is employed for expert witnesses, who are believed to be less susceptible to the temptation to shape their testimony.”), trans. denied. We must determine here whether the parent of a juvenile defendant waived to adult court is “essential” to the juvenile defendant’s presentation of his defense.

Harris argues that a juvenile lacks “maturity to adequately assess the gravity of the proceedings” despite the waiver to adult court. Appellant’s Br. p. 14. According to Harris, the waiver to adult court “does not change the Defendant’s age or his ability to fully understand the proceedings against him. Nor should it change the requirement or ability to have a parent present during each stage of a proceeding to allow for meaningful consultation when liberty interests are at stake.” Id.

The United States Supreme Court has repeatedly recognized a juvenile defendant’s special status. See Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct. 2455, 2455 (2012) (holding that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’”).

Indiana courts have held that “[t]he special status accorded juveniles in other areas of the law is fully applicable in the area of criminal procedure.” S.D. v. State, 937 N.E.2d 425, 429 (Ind. Ct. App. 2010) (citing Hall v. State, 264 Ind. 448, 451, 346 N.E.2d 584, 586 (1976)), trans. denied.

Once a juvenile is waived to adult court, Indiana Code Section 31-32-5-1 and its requirement for meaningful consultation no longer apply. Despite the waiver to adult court, however, the juvenile is still a minor child; the juvenile’s lack of maturity and need for meaningful consultation with a parent regarding the juvenile’s rights remain. Regardless of the waiver to adult court, our criminal procedures should take into account the juvenile’s youth and need for such meaningful consultation with a parent, especially during a trial. As such, we conclude that the parent of a juvenile waived to adult court is “a person whose presence a party shows to be essential to presenting the party’s claim or defense.” Evid. R. 615(c). Accordingly, the trial court erred by excluding Harris’ mother from Harris’ trial.

Although we have concluded that the trial court erred by excluding Harris’ mother, we must also determine whether that error impacted Harris’ substantial rights. Stated differently, and within the context of Harris’ alleged due process violation, we are tasked here with determining whether the exclusion of Harris’ mother rendered the proceedings unfair.

The State makes no harmless error argument. Although the evidence presented at the trial was persuasive, the impact of denying Harris, who was sixteen years old at the time, any opportunity for meaningful consultation with a parent cannot readily be quantified. We also note that, although the State listed Harris’ mother as a witness, she was never called to testify. Under these circumstances, we cannot say that the exclusion of Harris’ mother was harmless error.

Conclusion

In this case of first impression, we conclude that Harris’ due process rights were violated when the trial court excluded Harris’ mother from the courtroom during the jury trial. We conclude that Harris’ mother is “a person whose presence [was] essential to presenting the party’s claim or defense” under Indiana Evidence Rule 615(c). The trial court abused its discretion by excluding her pursuant to the separation of witnesses order. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

Najam, J., concurs.

Vaidik, J., dissents with opinion.

Vaidik, J., dissents.

I respectfully dissent. The majority holds that the trial court should have exempted Harris’s mother from the separation-of-witnesses order for two overlapping reasons: (1) because the parent of a juvenile waived to adult court is “a person whose presence a party shows to be essential to presenting the party’s claim or defense” under Evidence Rule 615(c) and (2) because Harris had a due-process right to have his mother present throughout the trial. I see several problems with these conclusions.

First, Harris does not argue on appeal that his mother should have been allowed to stay in the courtroom because of Evidence Rule 615(c). Instead, he argues that he had a right to have his mother in the courtroom in spite of Evidence Rule 615. Therefore, the State had no reason to address—and did not address—Rule 615(c) in its brief. We should not reverse a judgment based on an issue that was not raised by the appellant, especially when the appellant’s silence leads to the appellee’s silence.

Second, Harris did not raise either the due-process issue or the Evidence Rule 615(c) issue in the trial court. In objecting to the separation-of-witnesses order, he did not mention “due process,” the United States Constitution, or the Indiana Constitution, and he did not say anything about Rule 615(c) or argue that his mother’s presence was “essential.” In fact, he never even said that he wanted his mother to be present. He said only that his mother “would like to be — to be in the trial as much as possible.” Tr. Vol. II p. 27. By failing to raise either issue in the trial court, Harris waived both issues for purposes of appeal.

Third, notwithstanding the fact that Harris waived both issues (and doesn’t even raise the Evidence Rule 615(c) issue on appeal), I disagree with the majority’s blanket conclusions that every waived juvenile has an absolute due process right to have a parent who is also a witness present throughout trial and that the presence of such a parent is per se “essential” for purposes of Rule 615(c).

For example, the presence of a parent may be necessary if the waived juvenile, perhaps by reason of immaturity or a developmental disability, is having significant trouble understanding the proceedings or communicating with their attorney and is therefore at risk of an unfair trial. Harris did not even attempt to make such a showing here. Again, he merely pointed out that he is a juvenile (sixteen at the time of trial) and that his mother wanted to be present. To me, those facts are not sufficient to establish a constitutional right to have his mother exempted from the separation-of-witnesses order or to show that the presence of his mother was “essential” under Rule 615(c).

For these reasons, I would affirm Harris’s conviction.

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