697 N.E.2d 53 (Ind. 1998), 49S00-9701-CR-001, Jackson v. State

• Citation: 697 N.E.2d 53
• Party Name: Earl JACKSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Case Date: July 21, 1998
• Court: Indiana Supreme Court

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697 N.E.2d 53 (Ind. 1998)

Earl JACKSON, Defendant-Appellant,

v.

STATE of Indiana, Plaintiff-Appellee.

No. 49S00-9701-CR-001.

Supreme Court of Indiana.

July 21, 1998

Page 54

Lesa Lux Johnson, Indianapolis, for defendant-appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Christopher L. LaFuse, Deputy Attorney General, Indianapolis, for plaintiff-appellee.

DICKSON, Judge.

The defendant, Earl Jackson, was convicted for the January 13, 1995 murder ¹ of Derik Hale and sentenced to fifty-five years imprisonment. In this direct appeal, he asserts the following as trial court errors: (1) exclusion of testimony of the defendant's statements; (2) admission of evidence pertaining to the defendant's shoes; and (3) improper sentence. We affirm.

The defendant contends that the trial court erroneously excluded testimony from Jose Shelby about the defendant's statements hours after the crime. Admissibility determinations by the trial court are reviewed for abuse of discretion and will be reversed "only where the decision is clearly against the logic and effect of the facts and circumstances." Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997). The State objected to the testimony on hearsay grounds, and defense counsel argued that the evidence should be admitted under either the present sense impression or state of mind exceptions. ² When the trial court sustained the State's objection, defense counsel preserved the error by an offer to prove. Shelby stated in the offer to prove that, hours after the crime, when the defendant heard of the victim's death, the defendant stated that he did not mean to kill the victim.

Hearsay is admissible under the present sense impression rule when the statement describes or explains "a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter." Ind.Evidence Rule 803(1). The defendant claims that his statement was relevant to his intent at the time of the crime. Because admission of the statement seeks to describe or explain the "material event" of the crime, the statement must have been made during the commission of the crime or immediately thereafter. The record reveals that the defendant's statement was not made until hours later, after the defendant heard about the victim's death, not immediately after the commission of the crime. Therefore, the trial court did not abuse its discretion in refusing to admit the evidence under the present sense impression exception.

Second, the defendant argues that the hearsay was admissible under the state of mind exception to the hearsay rule. Such statements are admissible when they pertain to "the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed." Ind.Evidence Rule 803(3). The rule requires that the statement relate to the declarant's then-existing state of mind. The defendant's statement hours after the crime was not indicative of his then-existing state of mind, but referred to his intention at the time of the crime. This is an inadmissible statement of memory offered after the fact to prove the fact remembered, i.e., that the

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defendant did not intend to kill the victim. As such, the trial court did not abuse its discretion in finding that the evidence was not admissible under the state of mind exception.

The trial court did not abuse its discretion in excluding the evidence relating to the defendant's statements after learning of the victim's death.

The defendant next contends that the trial court erred in admitting evidence regarding shoes taken from the defendant and matched to an imprint left on the victim's body. He argues that the evidence was inadmissible because the shoes were not seized until several months after the crime and there was no foundation to establish that those were the same shoes the defendant had on at the time of the crime.

Assuming without deciding that the admission of this evidence constituted error, it would be harmless error. Even when an error has occurred, we will only reverse if the error is inconsistent with substantial justice. Ind.Trial Rule 61. Here the uncontradicted evidence established that the defendant repeatedly struck and kicked the victim, hard enough that the victim died within minutes of the attack. We fail to see how the additional shoe imprint evidence was inconsistent with substantial justice.

The defendant further contends that he was improperly sentenced because the trial court considered inadmissible evidence and used improper aggravating factors during the sentencing, arguing that, without this inadmissible evidence and improper...