749 N.E.2d 1144 (Ind. 2001), 71S00-9912-CR-800, Davenport v. State

Docket Nº:71S00-9912-CR-800.
Citation:749 N.E.2d 1144
Party Name:John William DAVENPORT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Case Date:June 28, 2001
Court:Supreme Court of Indiana

Page 1144

749 N.E.2d 1144 (Ind. 2001)

John William DAVENPORT, Appellant (Defendant Below),


STATE of Indiana, Appellee (Plaintiff Below).

No. 71S00-9912-CR-800.

Supreme Court of Indiana

June 28, 2001

Rehearing Denied Sept. 25, 2001.

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Anthony V. Luber, South Bend, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

BOEHM, Justice.

John William Davenport was convicted of the murder of Donna Hess and sentenced to sixty-five years imprisonment. In this direct appeal, he contends that: (1) the trial court abused its discretion in admitting inadmissible hearsay; (2) the trial court abused its discretion in refusing instructions on circumstantial evidence and the lesser included offense of reckless homicide; (3) the trial court erred during jury deliberations in failing to provide the jury with a transcript of the testimony of a witness; and (4) there was insufficient evidence of murder. We affirm the judgment of the trial court.

Factual and Procedural Background

On May 3, 1998, five-year-old Jeremy Dew awoke to loud noises in the kitchen of his home. Dew went into the kitchen to see what the noise was and discovered his mother, Donna Hess, and John Davenport fighting. Hess was crying and Davenport picked her up and threw her against the wall. When Dew attempted to help Hess, Davenport hit him in the head with a stick and Dew returned to bed.

When Dew awoke the next morning, he found his mother's body on the floor of the kitchen. Dew called 911 and told the operator that his mom "got beat up last night" and was dead. Dew was taken to the hospital where he told a social worker that "John" had hurt his mother. The cause of death was strangulation.

At trial, the court admitted a tape of the 911 call, a transcript of the 911 call, and Dew's statements to the social worker. There was also testimony from Shannon West, a friend of Hess, that Davenport was jealous of Hess' relationship with another man and had threatened Hess the day before she was killed. During jury deliberations, the trial court replayed the 911 tape at the jury's request. Davenport was found guilty of murder and sentenced to sixty-five years imprisonment.

I. Hearsay

Davenport challenges the trial court's admission of a tape of the 911 phone calls and Dew's statements to a social worker. He contends that both were inadmissible hearsay. The State responds that the statements were admissible under the excited utterance exception to the hearsay rule. 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. Ind. Evidence Rule 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."

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Ind. Evidence Rule 803(2). Determining whether a statement constitutes an excited utterance is essentially a factual determination subject to a clearly erroneous standard of review, sometimes described as the functionally equivalent abuse of discretion. 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.1995); accord Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000).

A. 911 Tape

The trial court admitted an audiotape of Dew's phone call to 911 and the responding call from the 911 operator as excited utterances. In the first, Dew told the operator that his mom "got beat up last night" and was dead. When asked who beat his mother, Dew responded his father. 1 Dew then hung up, the operator called back, and Dew reiterated the information. When determining whether a statement is admissible under the excited utterance exception, "the trial court simply determines whether the evidence is sufficient to allow the trier of fact to find, by a preponderance of evidence, that the speaker was under the stress of the startling event or condition." Miller, supra, § 803.102, at 602. This need not be done in any specific manner. Ultimately, the issue for the trial court was whether the call was in fact made very shortly after this five year old discovered his dead mother's body, and whether this foundation was sufficient to meet the requirements of Indiana Rule of Evidence 803(2). The trial court did not abuse its discretion in admitting the 911 tape under the excited utterance...

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