Hammon v. State

• Decision Date: 14 June 2004
• Docket Number: No. 52A02-0308-CR-693.,52A02-0308-CR-693.
• Citation: 809 N.E.2d 945
• Parties: Hershel HAMMON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

809 N.E.2d 945

Hershel HAMMON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 52A02-0308-CR-693.

Court of Appeals of Indiana.

June 14, 2004.

Rehearing Denied August 9, 2004.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Hershel Hammon appeals his conviction for domestic battery, a Class A misdemeanor. We affirm in part and reverse in part.

Issues

The issues before us are:

I. whether the trial court erred by admitting into evidence statements made by the victim to the arresting officer; and

II. whether the trial court erred in allowing Hammon's $300.00 cash bond to be applied to administrative fees and to the costs of his representation by a public defender.

Facts

The relevant facts most favorable to the conviction follow. On February 26, 2003, Peru police officer Jason Mooney was dispatched to 590 East Fifth Street. Upon his arrival, Officer Mooney approached the residence and spoke with A.H., who he thought was timid and frightened. Officer Mooney inquired of A.H. whether there "was a problem and if anything was going on," to which A.H. responded, "no." Tr. p. 8. However, when he entered the house, Officer Mooney observed that the living room was in a state of disarray with broken objects littering the floor. Id. at 9-10. Hammon told Officer Mooney that he and A.H. had argued but that it had been resolved and had "not become physical." Id. at 11.

Officer Mooney then separated Hammon from A.H., at which time A.H. told him that Hammon had physically attacked her by throwing her down into the glass from a shattered heater and that he punched her twice in the chest. Id. at 12. Officer Mooney did not notice any visible physical injuries to A.H. However, A.H. did indicate that she was in some pain as a result of the attack.

During the time when Officer Mooney separated Hammon from A.H., Hammon attempted to enter the room where Mooney was speaking with A.H. When Hammon approached, A.H. became quiet and seemed afraid. A.H. also completed a battery affidavit.

Hammon was arrested and charged with domestic battery. A bench trial was conducted on May 9, 2003. A.H. did not testify, but Officer Mooney testified regarding A.H.'s statements. Hammon was convicted of domestic battery, a Class A misdemeanor. Hammon appeals the conviction.

Analysis

I. Admissibility of Victim's Statements

Hammon first challenges the trial court's admission of statements made by A.H. to Officer Mooney and argues that the officer's testimony relaying the statements was not admissible under the excited utterance exception to the hearsay rule.¹ We review questions regarding the admissibility of evidence only for a manifest abuse of discretion resulting in an unfair trial. Williams v. State, 782 N.E.2d 1039, 1045 (Ind.Ct.App.2003).

Pursuant to the Indiana Rules of Evidence, "hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Certain exceptions to this rule may apply, including the excited utterance exception that is at issue in this case. Indiana Evidence Rule 803(2) defines an "excited utterance" as "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." Indiana courts have previously distilled this rule into three distinct elements that the party who seeks admission must prove: "(1) a startling event occurs; (2) a statement was made by a declarant while under the stress of excitement caused by the event; and (3) the statement relates to the event." Williams, 782 N.E.2d at 1046.

Officer Mooney testified that he responded to a domestic disturbance call and that when he encountered the victim, she seemed "frightened" and "timid." Tr. pp. 5, 7-8. Officer Mooney further testified that when he entered the residence, the living room was in "disarray," and he observed broken glass on the floor in front of a glass heating unit that appeared to be broken with flames coming out the front of the unit. Id. at 10. Officer Mooney then testified that when he removed Hammon from the room, A.H. informed him that she and Hammon had been engaged in an argument and that Hammon had broken things in the living room. Officer Mooney testified that A.H. told him that Hammon threw her down into the glass from the heater and that he punched her twice in the chest. Id. at 12. It is with the admission of this final statement that Hammon takes particular issue.

The facts of this case are similar to those in Gordon v. State, 743 N.E.2d 376, 378 (Ind.Ct.App.2001). In Gordon, police responded to a domestic disturbance call and observed a woman who was "visibly shaking" and whose voice was "crackling and shaky." Id. The woman described to police the events that occurred the night of the battery, and the officer recounted her statements at trial. We held that the officer's testimony was correctly admitted into evidence under the excited utterance exception to the hearsay rule because the officer's observations illustrated that the victim was still upset by the startling event she described to the officer and that it was reasonable to infer that this event caused the victim's distress. Id. at 378.

We reach the same conclusion in this case. A startling event occurred at the residence before police arrived. Officer Mooney testified that upon entering the house, he observed broken objects littering the living room floor and flames escaping from a shattered heater. Such observations, particularly that of the broken heater, clearly indicate that a startling event had recently taken place. This element is satisfied.

Indiana Evidence Rule 803(2) further requires that the statement for which one seeks admission "was made by declarant while under the stress of excitement caused by the event." It is clear from Officer Mooney's description of A.H. as "timid" and "frightened" that he perceived her to still be under the stress of the event. Officer Mooney also stated that A.H. grew quiet when Hammon entered the room. Further, it is reasonable to infer that Officer Mooney responded promptly to the dispatch after receiving it and that he arrived in a timely manner such that, when he arrived, A.H. was still greatly affected by the earlier event.

Our supreme court has held that "[t]he amount of elapsed time between the incident and the utterance weighs in determining the ability of the witness to regain his or her composure and engage in reflective thought." Holmes v. State, 480 N.E.2d 916, 918 (Ind.1985). Thus, "the heart of an inquiry is whether the declarant was incapable of thoughtful reflection." Jones v. State, 800 N.E.2d 624 (Ind.App. Ct.2003). Further, "[t]he amount of time that has passed between the event and the statement is relevant but not dispostive." Burdine v. State, 751 N.E.2d 260, 264 (Ind. Ct.App.2001), trans. denied (citing Noojin v. State, 730 N.E.2d 672, 676 (Ind.2000)). "No precise length of time is required." Gordon, 743 N.E.2d at 378.

Although Officer Mooney did not testify as to the precise amount of time that passed between his receipt of the domestic disturbance dispatch and the time he arrived at the residence, he was justified in concluding that A.H. was still upset because of the startling event that led to the call. Further, given the officer's observations of A.H. as well as the state of her living room, the trial court did not abuse its discretion in finding that A.H. was still under the stress of the event at the time she made her statement to police. We reject Hammon's contention that A.H. was no longer under the stress of the event because the State failed to establish the precise length of time that passed before Officer Mooney arrived. We next address the final element required to find that the declarant's statement was an excited utterance. Indiana Evidence Rule 803(2) requires that the statement at issue must be related to the startling event. A.H.'s statement clearly was related to the facts and circumstances surrounding the startling event and this element is met.

We are not persuaded by Hammon's argument that Officer Mooney's testimony should have been withheld because A.H. gave her statement in response to his questions. Our supreme court has held that "[a] declaration does not lack spontaneity simply because it was an answer to a question." Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996). The fact that Officer Mooney questioned Hammon does not mean her statement was not an excited utterance. In sum, we hold that the trial court did not abuse its discretion in concluding that A.H.'s statement was an excited utterance.

Although we have concluded that A.H.'s statements to Officer Mooney fell under the excited utterance exception to the hearsay rule, that does not end our analysis today, given a recent and substantial change in Sixth Amendment jurisprudence announced by the United States Supreme Court while this appeal was pending. Specifically, the Court held in March of this year that when the prosecution seeks to introduce a "testimonial" out-of-court statement into evidence against a criminal defendant, the Confrontation Clause of the Sixth Amendment requires two showings: (1) that the witness who made the statement is unavailable; and (2) that the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). In reaching this holding, the Court squarely criticized and overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).² Roberts had established the rule that hearsay statements made by an unavailable witness were admissible against a criminal defendant if the...