829 N.E.2d 444 (Ind. 2005), 52S02-0412-CR-510, Hammon v. State

Docket Nº:52S02-0412-CR-510.
Citation:829 N.E.2d 444
Party Name:Hershel HAMMON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Case Date:June 16, 2005
Court:Supreme Court of Indiana

Page 444

829 N.E.2d 444 (Ind. 2005)

Hershel HAMMON, Appellant (Defendant below),


STATE of Indiana, Appellee (Plaintiff below).

No. 52S02-0412-CR-510.

Supreme Court of Indiana

June 16, 2005

Page 445

[Copyrighted Material Omitted]

Page 446

Kimberly A. Jackson, Indianapolis, for Appellant.

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


BOEHM, Justice.

The Sixth Amendment as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), prohibits the introduction in a criminal trial of testimonial statements where the defendant had no opportunity to cross examine the person who made the statements. We hold that statements to investigating officers in response to general initial inquiries are nontestimonial but statements made for purposes of preserving the accounts of potential witnesses are testimonial. More generally, we conclude that testimonial statements are those where a principal motive of either the person making the statement or the person or organization receiving it is to preserve it for future use in legal proceedings.

Facts and Procedural History

At 10:55 p.m. on February 26, 2003, Peru Police Department Officers Jason Mooney and Rod Richard went to the Hammons' home in response to a reported domestic disturbance. When the officers arrived, the alleged victim, Amy Hammon, was on the front porch. Mooney testified that Amy appeared to be "somewhat frightened." When he asked whether there was a "problem" or "anything was

Page 447

going on" she answered "No.... nothing was the matter" and that "everything was okay."

After receiving permission from Amy to enter the house, Mooney found a gas heating unit in the corner of the living room with fragments of its glass front on the floor and flames emerging from the resulting cavity. Hershel Hammon, Amy's husband, was in the kitchen. In response to Mooney's inquiry as to what had happened, Hershel stated that he and his wife had "been in an argument" but "everything was fine now" and the argument "never became physical." Officer Richard remained with Hershel in the kitchen while Mooney returned to the porch and again asked Amy what had occurred. Mooney testified that:

She informed me that she and Hershel had been in an argument. That he became irrate [sic] over the fact of their daughter going to a boyfriend's house. The argument became ... physical after being verbal and she informed me that Mr. Hammon, during the verbal part of the argument was breaking things in the living room and I believe she stated he broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater ....

She informed me Mr. Hammon had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe.

Mooney then requested Amy to fill out and sign a battery affidavit reciting these allegations, and she complied. 1

The State charged Hershel with Domestic Battery and also alleged that the battery violated the terms of his probation. The trial court consolidated Hershel's probation violation hearing and a bench trial on a domestic battery charge. The trial court explained that a preponderance of the evidence standard of proof would apply in evaluating the probation violation and a reasonable doubt standard would govern the domestic battery charge. Although the prosecutor had subpoenaed Amy, she was not present at the consolidated proceeding. Over Hershel's objections, Officer Mooney's testimony reporting Amy's oral statements was admitted under the excited utterance exception to the hearsay rule and Amy's affidavit was admitted as a present sense impression. The only other evidence was brief testimony by the secretary of the probation department establishing Hershel's probation status. The defense offered no evidence.

At the conclusion of the consolidated proceeding, Hershel was convicted of Domestic Battery and found to have violated parole based on the facts recited in the affidavit and in Mooney's account of Amy's statements to him. Hershel was sentenced to one-year imprisonment, with all but twenty days suspended. He was also instructed to complete a drug and alcohol evaluation, and a counseling program. Finally, the trial court allowed Hershel's $300.00 cash bond to be applied to administrative fees and the costs of his representation by a public defender. 2

Page 448

On appeal, the Court of Appeals upheld the court's admission of Amy's statements to Officer Mooney under the hearsay exception for excited utterances. Hammon v. State, 809 N.E.2d 945, 949 (Ind.Ct.App.2004). The Court of Appeals did not decide whether the affidavit was properly admitted, reasoning that the issue was academic because the affidavit was cumulative of Mooney's testimony and therefore harmless, if error at all. Id. at 948 n. 1. We granted transfer. Hammon v. State, 2004 Ind. LEXIS 1031 (Ind. Dec. 9, 2004).

Out of Court Statements as Evidence

This case presents an all too familiar scenario: the police respond to a report of domestic violence, an apparent victim reports a battery, and the victim then does not testify at trial for reasons that are not conclusively documented in the record. 3 This fact pattern has historically presented troubling issues under state rules of evidence. As a result of the recent decision of the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we now must address the issue under both the Indiana Rules of Evidence and the Confrontation Clause of the Sixth Amendment to the Constitution of the United States.

I. Excited Utterance

Amy's statements to Mooney were admitted to establish the truth of the matters asserted, notably that Hershel had hit her and thrown her down. Accordingly, the statements are inadmissible hearsay unless an exception applies. In this case the trial court found Amy's statements to be "excited utterances" admissible under Indiana Evidence Rule 803(2).

The rules of most other jurisdictions include a provision similar to Federal Rule of Evidence 807, which allows hearsay not specifically admissible under one of the listed exceptions found in Rules 803 and 804 if it has "equivalent circumstantial guarantees of trustworthiness" and (A) "is offered as evidence of a material fact;" (B) "is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts;" and (C) "the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence." The proponent of the statement must provide sufficient notice to the adverse party before the statement can be used in a trial or hearing. Fed.R.Evid. 807.

The Indiana Rules of Evidence have no counterpart to this residual exception. As a result, the Indiana "excited utterance" exception has been interpreted broadly to permit admission of statements deemed trustworthy. For a hearsay statement to be admitted as an excited utterance three elements must be shown: (1) a startling event; (2) the declarant made the statement while under the stress of excitement caused by the event; and (3) the statement relates to the event. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996). In Yamobi we stated:

Page 449

While a declaration is generally less likely to be admitted if it is made long after the startling event, the amount of time that has passed is not dispositive .... [T]he central issue is whether the declarant was still under the stress of excitement caused by the startling event when the statement was made.

Id. (citations omitted). Admissibility turns on "whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications." Davenport v. State, 749 N.E.2d 1144, 1148 (Ind.2001). Indiana appellate courts have found the exception available for statements made as much as thirty minutes after the event where the declarant was shot on the street and remained there wounded until police arrived. See, e.g., Yamobi, 672 N.E.2d at 1346-47. Under less stressful circumstances we have expressed doubt that such a lengthy period would qualify. See, e.g., Davenport, 749 N.E.2d at 1149 ("It seems somewhat of a stretch to conclude that a statement [by a witness] one half-hour after the discovery of the body was still made under the stress of the startling event.").

Whether a statement constitutes an excited utterance is essentially a factual issue subject to a clearly erroneous standard of review, sometimes described as the functional equivalent of abuse of discretion. Id. at 1148. In this case, the Court of Appeals affirmed the trial court based on Officer Mooney's observations that a "startling event occurred at the residence before the police arrived," and Amy's "timid" and "frightened" appearance when the police first saw her. Hammon, 809 N.E.2d at 949. It is unclear precisely how much time had passed between the event and the statement, but a prompt police response was a reasonable inference from this record, and it is for the trial court to evaluate the credibility of Mooney's perceptions of Amy's stressed state. We agree that the trial court could properly infer that Amy's initial reports to Mooney were made while Amy was still under the stress of the alleged domestic violence and were unlikely to constitute an unreliable response. Accordingly, it was admissible evidence insofar as state law is at issue here.

II. Confrontation Clause

Until Crawford was handed down, the foregoing conclusion under Evidence Rule 803 would resolve this case. Crawford...

To continue reading