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Refusing to Permit Attorney to Make Offer of Proof Is Abuse of Discretion, Says Indiana Supreme Court

by Douglas Ankney

The Supreme Court of Indiana held that a superior court abuses its discretion when it refuses to allow an attorney to make an offer of proof when the attorney has done nothing to delay or abuse the trial process.

In 2011, the Marion Superior Court sentenced Anthony Bedolla to 45 years in prison for the murder of Erick Espinoza. Upon exhausting his direct appeals, Bedolla sought post-conviction relief. After a hearing on Bedolla’s post-conviction motion in January 2017, Bedolla shared a holding cell with Miguel Barragan-Lopez. Barragan recounted a brief relationship he’d had with Sarai Solano who was the State’s only witness to testify that she saw Bedolla shoot Espinoza. Barragan stated that Solano had told him that Jose Reyes had killed Espinoza.

Bedolla informed his attorney (“Counsel”) of Barragan’s statement. Counsel arranged to have Barragan testify at an upcoming hearing, but Barragan was transferred to Kentucky before the hearing. Counsel traveled to Kentucky attempting to depose Barragan, but she was unable to do so.

At a later hearing, Counsel told the superior court that another appointment had been made to depose Barragan. The State argued against any further deposition, claiming Barragan’s testimony would be inadmissible. When Counsel attempted to make rebuttal, the court refused to allow her to do so. The court then determined Barragan had no admissible evidence to offer, closed the evidence, and called the next case. Counsel then attempted to make an offer of proof (that is, a statement on the record as to the substance of Barragan’s testimony), but the court told her to move away from the counsel table and threatened her with contempt. Counsel took an appeal to the Indiana Court of Appeals; however, the case was transferred to the Indiana Supreme Court.

The Supreme Court observed that “[F]undamental fairness [is] essential to the very concept of justice.” Leach v. State, 699 N.E.2d 641 (Ind. 1998). “The opportunity to be heard in court is a litigant’s most precious right and should sparingly be denied.” Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628 (Ind. 2008). “[F]undamental fairness dictates that any party shouldering the burden of coming forward with evidence ... be given a relatively untrammeled opportunity to do so.” Hirsch v. State, 697 N.E.2d 37 (Ind. 1998). The evidentiary burden includes necessary offers of proof as they “are important procedural tools.” Littler v. State, 871 N.E.2d 276 (Ind. 2007). Offers of proof benefit the parties, the trial court, and the reviewing court. Id. Appellate courts cannot determine if the lower court improperly excluded testimony if the party below does not, or cannot, make an offer of proof. Roach v. State, 695 N.E.2d 934 (Ind. 1998). Offers of proof must explain three points: (1) the testimony’s substance, (2) the testimony’s relevance, and (3) the grounds for admitting the testimony. Nelson v. State, 792 N.E.2d 588 (Ind. 2003). “[I]t is reversible error for a trial court to deny ... an offer of proof.” Id.

The Court concluded, “Looking at this record, we see the post-conviction court abused its discretion in preventing Counsel from making an offer of proof concerning Barragan-Lopez’s anticipated testimony.” Because the record contained the essential information to satisfy the three points of an offer of proof, the Court further concluded that Bedolla should be permitted to proceed with the deposition.

Accordingly, the Supreme Court reversed the superior court’s order and remanded with instructions to proceed with the deposition. See: Bedolla v. State, 123 N.E.3d 661 (Ind. 2019). 

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