Attorneys for Appellant

Atley C. Price				

William J. Nelson

Molly E. Palmer

Michigan City, IN			 	

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Suzann Weber Lupton

Deputy Attorney General

Indianapolis, IN

	IN THE

	INDIANA SUPREME COURT

ROSALIO HERNANDEZ,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

)

)	Supreme Court No.

)	46S00-9702-CR-110

)

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)	

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	APPEAL FROM THE LAPORTE SUPERIOR COURT

	The Honorable Steven E. King, Judge

	Cause No. 46D02-9404-CF-000017

ON DIRECT APPEAL	

October 1, 1999

SULLIVAN,  Justice.

	Defendant Rosalio Hernandez was convicted of Attempted Murder and found to be

an habitual offender.  He appeals, arguing that (1) the trial court committed reversible error in allowing the victim to remain seated at the prosecutor’s table despite a valid separation

of witnesses order, (2) exhibits establishing habitual offender status were not properly

admitted, and (3) there was insufficient evidence to establish his habitual offender status.

Finding to the contrary, we affirm Defendant’s conviction and sentence enhancement as an

habitual offender.  

	We have jurisdiction over this direct appeal because the longest single sentence for his single

conviction exceeds fifty years.  Ind. Const. art. VII, § 4;  Ind. Appellate Rule 4(A)(7).

Background

	In 1989, Defendant had an altercation with a correctional officer employed at the

prison where Defendant was housed.  Over the course of the next few years, other minor

incidents inside the prison would cause their relationship to further deteriorate.  On March

23, 1994, Defendant attacked and repeatedly stabbed this same officer.  At trial, the State

was permitted, over Defendant’s objection, to allow the officer, Herbert Wallace, to remain

seated at counsel table during the trial as an essential witness to assist the prosecution.  

Wallace was the last State witness to testify.  On October 4, 1996, Defendant was convicted

of Attempted Murder,1 a Class A felony.  Defendant does not challenge the evidence supporting this conviction, which included numerous eyewitness accounts of the attack. 

	During the second portion of the trial, the State introduced various exhibits through

the testimony of an Indiana Department of Correction officer establishing Defendant’s status

as an habitual offender.  Defendant’s thirty-year sentence for attempted murder was en

hanced an additional thirty years based on the jury’s habitual offender finding.

Discussion

I

	Defendant contends that the trial court committed reversible error when it allowed the

victim, Herbert Wallace, to remain seated at the prosecutor’s table despite a valid separation

of witnesses order. Defendant argues that Wallace’s presence during the testimony of

several prior witnesses gave the State an unfair advantage: Wallace was able to hear all prior

testimony concerning both his own actions and those statements attributed to him and

Defendant during the period prior to, during, and after the stabbing incident.

	Defendant requested and received an order for separation of witnesses following the

completion of voir dire.  Afterwards, Defendant requested clarification regarding the order’s application to Wallace, who was seated next to the deputy prosecuting attorney.  The State responded that pursuant to Evidence Rule 615, Wallace was an “essential witness” to the

presentation of its case.  Wallace did eventually testify but only after thirteen other wit

nesses took the stand.  Defendant claims he was unfairly prejudiced because “no other

witness [besides Wallace] was afforded [this] opportunity,” Appellant’s Br. at 14, but he

cites no authority for the claim that Wallace should have testified first or near the beginning

of the State’s case in chief.   

	On January 1, 1994, Indiana Evidence Rule 615 became effective.  That rule pro

vides:

	At the request of a party, the court shall order witnesses excluded so

that they cannot hear the testimony of or discuss testimony with other wit

nesses, and it may make the order on its own motion.  This rule does not

authorize the exclusion of (1) a party who is a natural person, or (2) an officer

or employee of a party that is not a natural person designated as its representa

tive by its attorney, or (3) a person whose presence is shown by a party to be

essential to the presentation of the party’s cause.  

Evid. Rule 615.  The adoption of this Rule altered prior case law.  Under our common law

evidence regime, the decision to grant a separation of witnesses order was within the sound

discretion of the trial court. See Garland v. State, 439 N.E.2d 606, 608 (Ind. 1982). But under Rule 615, the trial court is required to grant motions for separation of witnesses

orders.  Smiley v. State, 649 N.E.2d 697, 699 n.5 (Ind. Ct. App. 1995), transfer denied. 

	As the second sentence of Rule 615 makes clear, there are certain witnesses whom

a court cannot exclude from the trial proceedings.  Fourthman v. State, 658 N.E.2d 88, 90- 91 (Ind. Ct. App. 1995), transfer denied.  Clause (3) exempts a witness whose presence is shown “to be essential to the presentation of a party’s cause.”  Evid. R. 615(3).  The moving

party, however, must show that the “‘witness has such specialized expertise or intimate

knowledge of the facts of the case that a party’s attorney could not effectively function

without the presence and aid of the witness.’”  4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 615.04[3][b] (2d ed. 1999) (discussing the showing required for exemption under the identical federal version of Rule 615(3)) (quoting Oliver B. Cannon & Son, Inc. v. Fidelity & Cas. Co., 519 F. Supp. 668, 678 (D. Del. 1981)); United States v. Agnes, 753 F.2d 293, 307 (3d Cir. 1985) (quoting same).2

	During a pre-trial hearing, the State showed that only Wallace had personal knowl

edge of all the particulars of its case from his original encounter with Defendant in 1989

until the 1994 stabbing.  Furthermore, only Wallace would be able to assist in the cross-

examination of other inmates, who as defense witnesses would testify that Defendant’s attack was in “self-defense.”  We hold that the trial court did not err in finding Wallace

qualified as an “essential witness” under Rule 615.3  We base our holding on Wallace’s unique ability to assist the State in its presentation, and not on the “least weighty reason for

considering a witness ‘essential’ to a case [which] is the factual knowledge he possesses.” Windsor Shirt Co. v. New Jersey Nat’l Bank, 793 F. Supp. 589, 616, 618 (E.D. Pa. 1992) (disallowing a proffered Rule 615(3) witness because it was unclear what difference it made

that that witness possessed specialized expertise in banking areas that differed from another

witness’s specialties), aff’d, 989 F.2d 490 (3d Cir. 1993); see also Miller v. State, 648 N.E.2d 1208, 1210 (Ind. Ct. App. 1995) (noting that “‘it is proper to except [from separa

tion] the prosecuting witness . . . to be present during the examination of other witness’”

because to “‘exclude the prosecuting witness would . . . place the state at great disadvantage,

by leaving its representative without aid from any one having personal knowledge of the

case’”) (quoting Coolman v. State, 163 Ind. 503, 72 N.E. 568 (1904) (alteration and omis sions added));  cf. Fourthman, 658 N.E.2d at 91 (exempting a law enforcement officer to assist in the prosecution of a case under Rule 615(2) “even though the officer may also be

called to testify as a witness”) (citing 13 Robert Lowell Miller, Jr., Indiana Practice § 615.103, at 284 (2d ed. 1995)).4 

II

	At trial, the State introduced exhibits evidencing previous convictions, sentencings

and commitments to show that Defendant was an habitual offender.  Defendant contends

that the trial court committed reversible error in admitting these exhibits.  The challenged

exhibits were as follows: Exhibits 35 and 38 were certified copies of court records evidenc

ing Defendant's charging information and sentencing relating to his prior conviction for

murder in 1989.  Exhibits 44 and 45 were certified copies of prison records detailing his

imprisonment for separate battery convictions in 1990 and 1993 respectively.

	Exhibits 35 and 38: Certified Copies of Court Records.  Defendant argues that the habitual offender determination must be set aside because the certification and stamp of the

keeper of the records was not endorsed upon every page of two pertinent exhibits compris

ing certified copies of court records.  He thus claims that the exhibits were inadmissible as

evidence.  We disagree. 

	An official record may be authenticated by the seal of a public officer “having official duties in the district or political subdivision in which the record is kept.” Ind.Trial

Rule 44(A)(1).5   The rule “does not mandate that certification take a particular form.”   Stiles v. State, 686 N.E.2d 886, 889 (Ind. Ct. App. 1997).

	Exhibit 35 is a two-page probable cause affidavit containing a certification stamp and

signature of the Clerk of Delaware County on the first page only; additionally, the stamp

contained a provision for the notation of total page numbers which was left blank.  Simi

larly, Exhibit 38 is a three-page sentencing order containing a certification stamp and

signature of the clerk on the last page only, with the stamp provision for the notation of total

page numbers also left blank.  A reading of the exhibits reveals that each is a complete

document clearly referring to the same 1989 murder charge: Cause Number 18D01-8811-

CF-46 appears on both documents. 

	The certification on a single “page” of either challenged exhibit provided adequate

certification for the entirety of each exhibit as the certification placement “in no way

caus[ed] confusion as to the authenticity of the paper.” Chanley v. State, 583 N.E.2d 126, 131 (Ind. 1991) (citing Miller v. State, 563 N.E.2d 578, 584 (Ind. 1990)) (ruling admissible under T.R. 44(A)(1) a multi-page document where the certification of a prior felony convic

tion referred to “foregoing” documents, but which was stapled to the top of the exhibit and

thus nothing was “foregoing”); cf. Lewis v. State, 554 N.E.2d 1133, 1136 (Ind. 1990) (noting that a document pertaining to a prior offense was improperly admitted during the

habitual offender phase of a burglary trial as the document bore the seal of a circuit court

and a stamp indicating it was recorded in an official records book, but no attestation accom

panied the document).  The trial judge properly admitted into evidence both Exhibits 35 and

38.

	Exhibits 44 and 45: Indiana Department of Correction Records.  Defendant chal lenges the admissibility of State’s Exhibits 44 and 45 under a different theory: that the

certification document for each exhibit lacked an incorporation by reference to page num

bers for the attached documents. Once again, we disagree with Defendant’s assertion that

these exhibits were inadmissible as evidence.

	Each exhibit was nearly identical in form and contained a Certification of Records

form signed and certified by the “designated keeper of the records at the Indiana State

prison.”  The certification form referenced the attached “photographs, fingerprint sheet,

description sheet and commitment sheet/cause no.” relating to Defendant’s imprisonment for

separate battery convictions in 1990 (Exhibit 44) and 1993 (Exhibit 45). Each attached document referred to either a cause number or Defendant’s prison number as it appeared on

the certification form.  We discern no confusion as to the authenticity of the documents.  See Chanley, 583 N.E.2d at 131.

	In Badelle v. State, 434 N.E.2d 872 (Ind. 1982), this Court upheld an habitual offender determination against a similar claim.  We concluded that “a certification by the

Keeper of the Records of the Indiana State Farm that ‘the attached are true and complete

copies . . .’” was proper “certification of all of the rest of the documents in the exhibit” as

required by T.R. 44(A)(1).  Id. at 877.  As was the case in Badelle, Defendant “cites no authority for the proposition [that] each page of [a] multi-page exhibit must be separately

certified,” id., nor are we aware of any authority requiring that attachments be numbered and incorporated by reference on the certification document. There was no error in the

admission of these documents and attachments.

 	III

	Defendant contends that the State’s evidence during the habitual offender phase of

the trial was insufficient to establish Defendant’s identity, and the trial judge erred in

denying his motion for a directed verdict.  Defendant notes specifically that the “State of

Indiana chose to rely entirely upon the testimony of a single witness,” Indiana Department of Correction Officer Karl Swihart,6 “to prove up the existence of two or more prior unre lated felony convictions as well as identifying the Defendant as having received convic

tions.” Appellant’s Br. at 20 (emphasis added).  Defendant points to inconsistencies in

Swihart’s testimony and argues that the “admissible evidence regarding [his] identity was

insufficient to sustain a conviction.”  We disagree.

	Certified copies of judgments or commitments containing a defendant’s name or a

similar name may be introduced to prove the commission of prior felonies. Schlomer v. State, 580 N.E.2d 950, 958 (Ind. 1991) (citing Andrews v. State, 536 N.E.2d 507 (Ind. 1989)).  While there must be supporting evidence to identify the defendant as the person

named in the documents, the evidence may be circumstantial.  Id.; see also Coker v. State, 455 N.E.2d 319, 322 (Ind. 1983).  If the evidence yields logical and reasonable inferences

from which the finder of fact may determine beyond a reasonable doubt that it was a

defendant who was convicted of the prior felony, then a sufficient connection has been

shown.  Pointer v. State, 499 N.E.2d 1087, 1089 (Ind. 1986).  

	The record shows that the jury found Defendant was twice convicted and twice sentenced for the two prior unrelated felonies of murder in 1989 and battery causing serious

bodily injury in 1993.  To prove the 1989 murder conviction and sentence, the State offered

into evidence the information, probable cause affidavit, order adjudicating probable cause,

jury verdict, sentencing order, and Defendant’s prison records.  To prove the 1993 battery

causing serious bodily injury conviction and sentence, the State offered into evidence the

information (originally charged as attempted murder), probable cause affidavit, jury verdict

for battery causing serious bodily injury, sentencing order, and Defendant’s prison records. 

	The State introduced this evidence through the testimony of Officer Swihart who

worked at the prison where Defendant was an inmate.  Swihart testified that he was familiar

with Defendant and with the contents of Defendant’s offender packet, which included

numerous court documents, identification cards, and photographs of Defendant.  Swihart

readily identified Defendant in court as the same individual whose photographs appeared in

the prison records.  We find that the State presented sufficient evidence from which the jury

could conclude that Defendant was the person convicted of murder in 1989 and battery

causing serious bodily injury in 1993.

Conclusion

	We affirm the judgment of the trial court as to both Defendant’s conviction and

sentence enhancement as an habitual offender.

	SHEPARD, C.J., concurs, believing that while this witness/employee may be “essen

tial,” many complaining witnesses would not meet the test under Rule 615.

	SELBY, J., concurs.

	BOEHM, J., dissents with opinion in which DICKSON, J., concurs.  	

ATTORNEY FOR APPELLANT

Atley C. Price              

William J. Nelson

MollyE Paly E. Palmer

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Suzann Weber Lupton  

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

ROSALIO HERNANDEZ,  		)

   						)

	Appellant (Petitioner Below),	)	 

						)	

	      v.					)	Supreme Court

 						)	Cause No. 46S00-9702-CR-110

STATE OF INDIANA,	    		)	

						)

	Appellee (Plaintiff Below).	)

	APPEAL FROM THE LAPORTE SUPERIOR COURT

	The Honorable Steven E. King, Judge 

	Cause No. 46D02-9404-CF-000017

	ON DIRECT APPEAL

October 1, 1999

BOEHM, Justice, dissenting.

	I join in parts II and III of the Court’s opinion.  However, I believe it was reversible error to permit Wallace to remain at the counsel table because Wallace did not meet the

requirements of Evidence Rule 615(3) as an “essential witness.”  I reach this conclusion for

the reasons suggested by the majority in footnote 3.  The trial court’s rulings as to the status

of a potential witness as “essential” under Indiana Evidence Rule 615(3) are reviewed using

an abuse of discretion standard.  See Fourthman v. State, 658 N.E.2d 88, 90 (Ind. Ct. App. 1995) (“[w]hether a witness fits in an exemption under Rule 615 is within the trial court’s

discretion”).  The trial court in this case appears to have relied on pre-Rules of Evidence

case law “that a party has a right to choose one person to assist it in the presentation of [its]

cause.”1   Because the trial court’s ruling that Wallace was an “essential witness” was based on this incorrect view of the applicable law, it expressed no judgment on the degree to

which Wallace was “essential” and therefore its ruling is not entitled to deference.

	Indiana has little case law concerning the application of Rule 615, but the Indiana

rule is nearly identical to that in some other jurisdictions, including the federal courts.2  Accordingly, cases from these other jurisdictions interpreting Rule 615 provide useful guidance in construing the exceptions to Indiana Evidence Rule 615.  The Advisory Com

mittee Notes to Federal Rule of Evidence 615 state that the essential witness “category

contemplates such persons as an agent who handled the transaction being litigated or an

expert needed to advise counsel in the management of the litigation.”  Generally, this

exception has been applied to expert witnesses or witnesses who summarize large amounts

of information “[b]ecause Rule 615 is designed to preclude fact witnesses from shaping their

testimony based on other witnesses’ testimony . . . [.  I]t does not mandate the sequestration

of expert witnesses who are to give only expert opinions at trial.”  Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 629 (4th Cir. 1996); see also Polythane Sys., Inc., v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1209 (5th Cir. 1993); United States v. Ortiz, 10 F. Supp. 2d 1058, 1061 (N.D. Iowa 1998) (to qualify as essential under Rule 615(3), the party must

show that the “party’s attorney could not effectively function without the presence and aid

of the witness,” not that the witness is merely helpful or desirable) (quoting Oliver B. Cannon & Son, Inc., v. Fidelity & Cas. Co., 519 F. Supp. 668, 678 (D. Del. 1981)); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 615.04[3][b] (2d ed. 1999).

	A fact witness -- as opposed to one with necessary expertise -- is to be excluded as

a matter of the operation of the rule in the absence of some unusual circumstances.  See Opus, 91 F. 3d at 629 (“adherence to the sequestration rule is most important” with respect to “key fact witness[es]”).  The trial court found no particular need for Wallace to assist

counsel, and none is apparent to me.  

	Assuming an error occurred under Rule 615, the question remains whether it requires

reversal and under what standard we make that decision.  Indiana has no precedent on these

points.  There are three standards in federal courts and courts of other states addressing

errors in witness separation orders under rules identical or similar to our Rule 615.  The

majority of federal courts require the party objecting to the decision to show prejudice

occurred as a result of the error.  See United States v. Sykes, 977 F.2d 1242, 1245 (8th Cir. 1992); United States v. Prichard, 781 F.2d 179, 183 (10th Cir. 1986); Virgin Islands v. Edinborough, 625 F.2d 472, 474 (3d Cir. 1980); United States v. Warren, 578 F.2d 1058, 1076 (5th Cir. 1978) (en banc), modified on other grounds, 612 F.2d 887 (5th Cir. 1980).  Other courts require the party supporting the erroneous decision to show that the error was

harmless.  In other words, there is a presumption of prejudice that must be overcome before

the erroneous decision may stand.  See United States v. Jackson, 60 F.3d 128, 136-37 (2d Cir. 1995); United States v. Brewer, 947 F.2d 404, 411 (9th Cir. 1991); United States v. Pulley, 922 F.2d 1283, 1286 (6th Cir. 1991); United States v. Farnham, 791 F.2d 331, 335 (4th Cir. 1986); State v. Roberts, 612 P.2d 1055, 1057 (Ariz. 1980).  Finally, at least one court has suggested that a violation of Rule 615 should result in an automatic reversal.  See United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir. 1982).

	Because there is no meaningful way to measure the harmfulness of the educational

value to a witness who sits through the other witnesses’ testimony before taking the stand,

I think that the correct approach is to presume prejudice when the trial court errs on a

separation order.  This can be overcome if the non-movant can show that no prejudice occurred.  Here no such showing has been made.  Accordingly, enforcement of the rule

requires reversal in this case.

	DICKSON, J., concurs.