725 N.E.2d 66 (Ind. 2000), 49S00-9903-CR-200, Jenkins v State

Docket Nº49S00-9903-CR-200
Citation725 N.E.2d 66
Party NameCECIL JENKINS, Appellant (Defendant Below), v. STATE OF INDIANA, Appellee (Plaintiff Below).
Case DateMarch 21, 2000
CourtSupreme Court of Indiana

Page 66

725 N.E.2d 66 (Ind. 2000)

CECIL JENKINS, Appellant (Defendant Below),

v.

STATE OF INDIANA, Appellee (Plaintiff Below).

No. 49S00-9903-CR-200

In the Supreme Court of Indiana

March 21, 2000

APPEAL FROM THE MARION SUPERIOR COURT: The Honorable W.T. Robinette, Judge Pro Tempore, Cause No. 49G03-9804-CF-054025

Page 67

ATTORNEY FOR APPELLANT: Janice L. Stevens, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: Jeffrey A. Modisett, Attorney General of Indiana, Michael McLaughlin, Deputy Attorney General, Indianapolis, Indiana

BOEHM, Justice.

Cecil Jenkins was convicted of kidnapping, rape, and of being a habitual offender. He was sentenced to consecutive terms of fifty years for kidnapping and fifty years for rape enhanced by thirty years for being a habitual offender. In this direct appeal Jenkins contends that the trial court erred by not allowing his statements to the police to be admitted at trial and that the State impermissibly commented on his failure to testify. We affirm the judgment of the trial court.

On April 6, 1998, as D.R. was pumping gas, Jenkins entered the passenger side of her car. He grabbed D.R. by her hair, put an object into her side, and ordered her to drive. After reaching an abandoned building, Jenkins forced D.R. into a room and removed her clothes. When D.R. objected, Jenkins covered her mouth and nose with his hand, choked her, and then raped her.

Jenkins asked D.R. for money and choked her again until he found money in her purse. They returned to her car and Jenkins forced D.R. to drive to another abandoned location, where according to D.R., another rape occurred. Jenkins then forced D.R. to drive to a bridge and pull off the road where he exited the car and let D.R. drive away.

D.R. reported the attack to the police. Based on D.R.'s description and Jenkins' location near the crime scene later that evening, Jenkins was identified as the assailant, arrested, and taken to the police station for questioning. During the course of his interview, Jenkins admitted to having sex with D.R., but claimed that the encounter was consensual. Jenkins was charged with kidnapping, two counts of rape, criminal confinement, robbery, and being a habitual offender. He did not testify at trial. The jury found Jenkins guilty of kidnapping, rape, and being a habitual offender, acquitted him of the robbery

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charge, and was unable to reach a verdict as to the second rape or criminal confinement.

I. Hearsay

Jenkins claims that the trial court erred by refusing to permit an interrogating officer to testify to some statements Jenkins made to police. The State responds that the officer's account of these statements was hearsay and, as such, was inadmissible. At trial Detective Cahill testified that he interviewed Jenkins on the night of the rape. After Cahill testified that Jenkins stated that the encounter was consensual, Cahill's account of all other statements by Jenkins during the interview was excluded as hearsay. In his offer of proof, Jenkins contended that his statements to Cahill were admissible under the hearsay exceptions for present sense impression, excited utterance, state of mind, and statements against interest. On appeal, Jenkins contends only that the statements were admissible as excited utterances pursuant to Indiana Evidence Rule 803(2). Neither at trial nor on appeal did Jenkins make any claim that the omitted statements were relevant to provide a complete account of the matters addressed in the admitted testimony. Cf. Sweeney v. State, 704 N.E.2d 86, 110-11 (Ind. 1998).

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). It is inadmissible unless it falls under an exception. Evid. R. 802. Among the exceptions to the hearsay rule is: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Evid. R. 803(2). Determining whether a statement constitutes an excited utterance is within the trial court's discretion and its ruling will be reversed only for an abuse of that discretion. See Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).

For a hearsay statement to be admitted as an excited utterance, three elements must be shown: (1) a startling event, (2) a statement made by a declarant while under the stress of excitement caused by the event, and (3) that the statement relates to the event. Id. This is not a mechanical test. It turns on whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice § 803.102 (2d ed. 1...

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37 practice notes
  • 774 N.E.2d 523 (Ind.App. 2002), 55A01-0109-CR-335, Kirby v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • August 29, 2002
    ...to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence." Jenkins v. State, 725 N.E.2d 66, 69 (Ind.2000). After reviewing the Record in this case, we are not convinced that the prosecutor's comment rises to this level. Rather, the......
  • 788 N.E.2d 902 (Ind.App. 2003), 82A01-0206-CR-229, Ziebell v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • May 27, 2003
    ...persuasive effect on the jury's decision. Consequently, the trial court did not commit fundamental error. See, e.g., Jenkins v. State, 725 N.E.2d 66, 70 (Ind.2000) (holding that a prosecutor's comments on the defendant's failure to testify did not invite the jury to draw an adverse inferenc......
  • 135 N.E.3d 169 (Ind.App. 2019), 19A-CR-527, Ritchie v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • October 23, 2019
    ...deliberate falsifications. Id. ; 13 Robert Lowell Miller, Jr., Indiana Practice § 803.102 (2d ed.1995). Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000). To be admissible as an excited utterance, "[t]he statement must be trustworthy under the facts of the partic......
  • 800 N.E.2d 624 (Ind.App. 2003), 67A01-0303-CR-86, Jones v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 19, 2003
    ...reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications. Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000). The heart of the inquiry is whether the declarant was incapable of thoughtful reflection. Marcum v. State, 772 N.E.2d 998, 1001 (Ind......
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36 cases
  • 774 N.E.2d 523 (Ind.App. 2002), 55A01-0109-CR-335, Kirby v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • August 29, 2002
    ...to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence." Jenkins v. State, 725 N.E.2d 66, 69 (Ind.2000). After reviewing the Record in this case, we are not convinced that the prosecutor's comment rises to this level. Rather, the......
  • 788 N.E.2d 902 (Ind.App. 2003), 82A01-0206-CR-229, Ziebell v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • May 27, 2003
    ...persuasive effect on the jury's decision. Consequently, the trial court did not commit fundamental error. See, e.g., Jenkins v. State, 725 N.E.2d 66, 70 (Ind.2000) (holding that a prosecutor's comments on the defendant's failure to testify did not invite the jury to draw an adverse inferenc......
  • 135 N.E.3d 169 (Ind.App. 2019), 19A-CR-527, Ritchie v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • October 23, 2019
    ...deliberate falsifications. Id. ; 13 Robert Lowell Miller, Jr., Indiana Practice § 803.102 (2d ed.1995). Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000). To be admissible as an excited utterance, "[t]he statement must be trustworthy under the facts of the partic......
  • 800 N.E.2d 624 (Ind.App. 2003), 67A01-0303-CR-86, Jones v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 19, 2003
    ...reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications. Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000). The heart of the inquiry is whether the declarant was incapable of thoughtful reflection. Marcum v. State, 772 N.E.2d 998, 1001 (Ind......
  • Request a trial to view additional results

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