Brown v. State

• Decision Date: 10 July 1997
• Docket Number: No. 27A02-9608-CR-544,27A02-9608-CR-544
• Citation: 683 N.E.2d 600
• Parties: Lloyd BROWN, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 600

683 N.E.2d 600

Lloyd BROWN, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A02-9608-CR-544.

Court of Appeals of Indiana.

July 10, 1997.

Rehearing Denied Oct. 15, 1997.

Joe Keith Lewis, Marion, for Appellant-Defendant.

Pamela Carter, Attorney General, Phillip D. Hatfield, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Lloyd Brown, Jr. was charged with Count I, Battery by Means of a Deadly Weapon, as a Class C felony. That charge was later joined with a Count II, Battery, as a Class A misdemeanor. ¹ Brown was convicted on both counts, and his misdemeanor conviction was then enhanced to a Class D felony because he had been convicted of a prior battery against the same victim. The court sentenced Brown to eight years on Count I and three years on Count II to be served consecutively.

We affirm.

ISSUES

Brown presents several issues for our review which we restate as:

1. Whether the trial court committed reversible error when it allowed the State to join the two battery charges.

2. Whether the court abused its discretion when it admitted allegedly hearsay testimony.

3. Whether the trial court erred when it enhanced the misdemeanor battery charge to a Class D felony.

FACTS

On February 10, 1996, Officer Richard Eastes went to Brown's residence to serve an arrest warrant on him for the January 20, 1996, battery of Theresa Thompson, Brown's girlfriend. When he arrived, Thompson answered the door. She was distraught and appeared to be intoxicated. She was holding a blood-soaked cloth to a cut on her face, and she had a black and puffy eye. Thompson immediately told Eastes that "he cut me." She repeatedly stated that she could not believe "this was happening" to her, and she directed Eastes to look "at how he's messed her up." Officer Eastes attempted to question her, but Thompson was unable to answer him coherently.

Officer Eastes persisted and, some time later, ² Thompson described her altercation with Brown. She stated that when she got home that night, Brown was watching television in their bedroom. He then came into the kitchen and demanded to know where Thompson had been. At that time, Thompson was fixing a sandwich, and she had a knife in her hand. A confrontation between Brown and Thompson ensued. She reported that Brown had cut her as she was trying to get the knife away from him. Thompson further stated that Brown had hit her in the face. Later, Thompson was taken to the hospital where she repeated the same story to various medical personnel.

Issue One: Joinder of Charges

Eighteen days before trial, the State moved to join, over Brown's objections, the two battery charges against Brown. The trial court conducted a hearing and granted the State's motion. Brown contends that the court erred when it joined the two offenses. The State counters that Brown waived appellate review of this issue when he failed to renew his objection at trial. We must agree with the State.

Indiana Code § 35-34-1-9 provides that two or more offenses may be joined when they:

(1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Indiana Code § 35-34-1-11 further provides that "[w]henever two (2) or more offenses have been joined in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to severance of the offenses."

The State concedes that the charges against Brown were joined under subsection (1), and that as such, Brown was entitled to severance upon his pretrial motion. IND.CODE § 35-34-1-11(a); Pardo v. State, 585 N.E.2d 692, 695 (Ind.Ct.App.1992). However, Indiana Code § 35-34-1-12, which permits a defendant to renew a motion for severance before or at the close of all the evidence during trial, also provides that the right to severance of offenses is waived by failure to renew the motion. Spindler v. State, 555 N.E.2d 1319, 1321 (Ind.Ct.App.1990). The record indicates that Brown did not renew his objection to severance. Thus, Brown has waived review of this issue on appeal.

Issue Two: Hearsay Evidence

At trial, Thompson recanted the statements that she made to Officer Eastes about her altercation with Brown. Instead, she maintained that her injuries resulted from "horseplay." The State called Eastes to testify as to the statements that Thompson made on the night of the battery. Brown contends that the trial court abused its discretion when it permitted that testimony. Specifically, Brown argues that Thompson's statements constitute inadmissible hearsay. The State counters that the "excited utterance" exception to the hearsay rule applies. See I ND. EVIDENCE RULE 803(2).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. IND. EVIDENCE RULE 801(b). Hearsay is inadmissible unless admitted pursuant to a recognized exception. IND. EVIDENCE RULE 802. For a hearsay statement to be admitted as an excited utterance, three elements must be shown: 1) a startling event occurs; 2) a statement is made by a declarant while under the stress of excitement caused by the event; 3) the statement relates to the event. Id. Application of these criteria is not mechanical. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996). Rather, the heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. Id. The statement must be trustworthy under the facts of the particular case. Id. The trial court should focus on whether the statement was made while the declarant was under the influence of the excitement engendered by the startling event. Id.

We cannot conclude that the trial court abused it discretion when it permitted Officer Eastes' testimony. ³ When Eastes arrived at the scene, Thompson was extremely agitated and unable to answer police questions. Eastes stated that Thompson appeared to be intoxicated. Further, the injuries to her face were significant, ⁴ and she appeared to be in a great deal of pain. Although she eventually provided a relatively coherent statement, the record indicates that Thompson remained upset and "in shock." See id. (declaration does not lack spontaneity simply because it was an answer to police questioning). Hospital personnel testified that during Thompson's physical examination and treatment she was still distraught.

Given the facts of this case and the nature of the crime, it was reasonable for the court to infer that Thompson was incapable of thoughtful reflection and that she was still under the stress of the battery when she made her statement to Officer Eastes. Therefore, we conclude that the court did not abuse its discretion when it permitted Eastes' testimony. Brown has not shown error on this issue.

Issue Three: Sentence Enhancement

Finally, Brown claims that the trial court erred when it enhanced his misdemeanor battery charge to a felony based upon a prior misdemeanor battery conviction. Specifically, Brown asserts that, because his prior conviction was uncounseled and resulted in a prison sentence, the court was precluded from relying upon it for enhancement purposes. We disagree.

Indiana Code § 35-42-2-1 provides:

(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:

* * * * *

(2) a Class D felony if it results in bodily injury to:

* * * * *

(D) the other person and the person who commits the battery was previously convicted of a battery in which the victim was the other person.

IND.CODE § 35-42-2-1(a)(2)(D). In the present case, the State presented evidence of Brown's prior battery of Thompson which led to a misdemeanor battery conviction in 1994 and to a prison sentence of one year.

Brown directs us to Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). In that case, the Supreme Court held that a sentencing court may only consider a defendant's uncounseled misdemeanor conviction to enhance the sentence for a subsequent conviction if the prior uncounseled misdemeanor conviction did not result in a prison sentence. 511 U.S. at 748-49, 114 S.Ct. at 1928, 128 L.Ed.2d at 755, (emphasis added); see also Morphew v. State, 672 N.E.2d 461, 466 (Ind.Ct.App.1996) (Indiana application of the Nichols holding), trans. denied. It follows as a logical corollary from both Nichols and Morphew that if an uncounseled misdemeanor conviction results in a prison sentence, that conviction cannot be used for enhancement purposes. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (Sixth and Fourteenth Amendments require that a defendant be afforded the right to counsel where sentence of incarceration is imposed). Of course, the right to counsel may we waived. See Carter v. State, 512 N.E.2d 158, 162 (Ind.1987) (corollary to the right to counsel is the right to proceed pro se ). Thus, the question remains as to what evidence a defendant must present to successfully challenge the validity of the prior misdemeanor conviction. ⁵

The argument that Brown attempts to make is analogous to a defendant's challenge to the predicate felony in an habitual offender determination. In such instances, a defendant may challenge the predicate felony conviction when:

[T]he conviction is constitutionally invalid, that is, when (1) the court records reflecting the proceedings which led to the prior conviction, on their face, raise a presumption that the conviction is constitutionally infirm, and (2) the apparent constitutional infirmity is of the type which undermines both the integrity and reliability of the determination of guilt.

England v. State, 530 N.E.2d 100, 103 (Ind.1988)...