Brim v. State

• Citation: 624 N.E.2d 27
• Decision Date: 23 November 1993
• Docket Number: No. 39A04-9210-CR-373,39A04-9210-CR-373
• Parties: John BRIM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1 .
• Court: Court of Appeals of Indiana

Page 27

624 N.E.2d 27

John BRIM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 39A04-9210-CR-373 ¹.

Court of Appeals of Indiana First District.

Nov. 23, 1993.

Transfer Denied Jan. 12, 1994.

Eugene C. Hollander, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

John Brim appeals his conviction of Battery after a jury trial for which he received an enhanced eight year sentence. Brim raises five issues, none of which constitute reversible error.

FACTS

The facts in the light most favorable to the verdict indicate that Brim and the victim, Tammy Haase, had been drinking buddies and lovers for several years. On the evening of June 24, 1990 (the night of the alleged beating), Brim and Haase had been seen having an argument at a bar. Haase's neighbor, Shawna Skirvin, observed the couple arguing and gave Haase a ride home at approximately 1:00 a.m. Upon their arrival at their apartment complex, Haase noticed that the lights in her apartment were off although earlier she had left them on. Haase began to cry and asked Skirvin if she had a beer in her apartment. Skirvin and Haase went into Skirvin's apartment where Haase had a beer. Although Haase wanted to stay up and talk, Skirvin asked that, due to the fact it was after 1:00 a.m., the talk be postponed until the following day. Haase left Skirvin's apartment to go to her own.

As will be discussed in more detail, the next morning, Haase was found in her bed unconscious, the victim of an apparent beating. At trial, Haase testified that she knew that Brim had beaten her even though she could not remember the beating. Approximately ten months after the alleged beating, Haase went to the police station and had given a recorded statement to police in which she said that Brim was in her apartment in the early morning of June 25, 1990. Brim had been angry with her because she had been dancing with another man. Brim called Haase a "whore," grabbed her hair, placed her in a head lock, and began striking her in the head with his hand. After about five blows, Haase lost consciousness.

Haase's neighbors testified that they had heard the domestic disturbance in the early morning hours of June 25, 1990. One neighbor, Tony Baker, who was acquainted with both Brim and Haase, testified he heard the couple arguing. His window was directly over Haase's patio. Shortly after 1:30 a.m., Baker heard Haase yell, "John Another neighbor testified that when he heard the commotion he looked out his window and saw a white Chevrolet Corsica parked nearby, the type of car that Brim had been driving the night of the beating.

                leave me alone," and then heard Brim respond, "Shut the f______ up."   Baker then heard a loud "thud" against the wall
                

The next morning, Brim went to Haase's apartment and found her in bed unconscious. Brim summoned an ambulance and informed emergency personnel that Haase had been injured and would not wake up. The paramedics went to Haase's apartment and found her lying on the bed in a coma. Blood and bloody towels were found throughout the apartment. The police arrived, observed, and photographed Brim's hands which were cut and swollen.

The physician who examined Haase at the emergency room testified that she was in very critical condition, her eyes were blackened, she had suffered a cut over one eye, and she was in a coma. Haase had suffered a subdural hematoma caused by bleeding within her brain. Additionally, the position of her limbs and the fact that her pupils were dilated revealed unequivocally that she had suffered brain damage.

Haase remained in a coma for approximately three months after the beating. Her mother cared for her when she came home from the hospital. Haase suffers from permanent brain damage with severe short term memory impairment. Haase has had to relearn how to speak, eat, and go to the bathroom. Two years after the beating, Haase's mother describes her as acting like she did when she was four years old.

Additional facts are supplied as necessary.

DECISION

I.

Whether the trial court erred in permitting the introduction

into evidence of Haase's prior statement to police

in which she identified Brim as her assailant?

At trial, Haase unequivocally identified Brim as the person who had beaten her. Even though she could not remember the beating, she had no doubt in her mind that Brim was the one who had beaten her. When defense counsel suggested that Haase had no independent knowledge that Brim was the one and that other people had influenced her to identify Brim as her attacker, Haase testified:

All of it is independent knowledge. It's hard to believe but it's true. It [my memory] comes and goes you know. Like today I might remember where I put the freezer key but yet tomorrow I might not remember. You know and then 2 hours later I might remember, you know what I'm saying?

As previously described, approximately ten months after the beating, Haase gave a recorded statement to the police in which she recalled the details of the beating prior to her losing consciousness. In this statement, she identified Brim as the person who had beaten her.

At trial, over Brim's objection, the tape of this statement was played for the jury and the jury was provided a transcript of the statement. Haase testified that she remembered making the statement to the police but, as noted earlier, she could not actually remember the beating or the details that she had related in the statement.

Brim asserts the trial court erred in admitting Haase's prior statement. He argues that the statement was not admissible under Modesitt v. State (1991), Ind., 578 N.E.2d 649, because Haase's memory was so severely impaired she could not be meaningfully cross-examined concerning her prior statement.

In Modesitt, our supreme court adopted Federal Rule of Evidence 801(d)(1) governing the admissibility of prior statements as substantive evidence. The Modesitt court held:

In balance, we hold that, from this point forward, a prior statement is admissible as substantive evidence only if the declarant testifies at trial and is subject to cross examination concerning the statement, and the statement is (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition, or (b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (c) one of identification of a person made after perceiving the person.

Thus, if the declarant can be cross-examined about the statement and the statement fits either (a), (b), or (c) above, the statement is admissible. Moran v. State (1992), Ind.App., 604 N.E.2d 1258, trans. denied.

In a case remarkably factually similar to the case at bar, the United States Supreme Court analyzed the requirement under Fed.R.Evid. 801 that the declarant be "subject to cross-examination concerning the statement." U.S. v. Owens (1988), 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951. In Owens, a correctional officer at a prison was attacked and beaten with a metal pipe. His skull was fractured and he was hospitalized for almost a month. As a result of his injuries, the officer's memory was severely impaired. While in the hospital, the officer gave a statement to an FBI agent in which the officer described the beating and identified the defendant as the assailant. At trial, the officer remembered making the statement in the hospital. However, on cross-examination, he admitted that he could not remember having seen the person who had attacked him. He also admitted that he was unable to remember the many visitors he had received at the hospital except the FBI agent to whom he had made the statement at issue. The officer could not remember if any of these other visitors had suggested that he identify the defendant, nor could he explain hospital records which indicated that he had identified a person other than the defendant as his assailant. Our supreme court held that the Fed.R.Evid. 801(d)(1)(C) requirement that the declarant be "subject to cross-examination concerning the statement" is satisfied where the declarant is placed on the stand, under oath, and responds willingly to questions. Id. 484 U.S. at 562-63, 108 S.Ct. at 844. The Owens court noted that the effect produced by the declarant's assertion of memory loss is often the very result sought to be produced by cross-examination and can be effective in destroying the force of the prior statement. Id. In disposing of the defendant's claim of a Confrontation Clause violation, the Owens court noted:

'The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.'

484 U.S. at 558, 108 S.Ct. at 842 (quoting from Delaware v. Fensterer (1985), 474 U.S. 15, 21-22, 106 S.Ct. 292, 295, 88 L.Ed.2d 15.)

We find Owens persuasive. In the present case, Haase was available for cross-examination to the extent that she took the stand, took an oath, and responded willingly to the questions posed to her. She recalled having made the statement to the police which incriminated Brim even though at trial she could no longer remember the actual details of the beating described in the statement. Through cross-examination, Brim effectively attacked the credibility of Haase's trial testimony as well as her prior statement to police by demonstrating her severe memory impairment. We hold,...