Bustamante v. State

Decision Date07 August 1990
Docket NumberNo. 50S00-8712-CR-1167,50S00-8712-CR-1167
Citation557 N.E.2d 1313
PartiesArthur J. BUSTAMANTE, Sr., Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Robert O. Bowen, Bremen, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was indicted by a Marshall County grand jury for murder, I.C. 35-42-1-1(1); felony murder, I.C. 35-42-1-1(2); and arson, a Class A felony, I.C. 35-43-1-1(a), in connection with the death of his wife, Gloria Bustamante, which resulted from a fire at their home. He was then tried to a jury, which returned guilty verdicts on all three counts. The trial court merged the felony murder conviction into the murder conviction and sentenced appellant to sixty years on that count and to thirty years on the arson count. The court ordered that the two sentences be served concurrently, resulting in a sixty-year executed sentence. Appellant now brings this direct appeal, challenging the court's rulings on hearsay issues, the sufficiency of the evidence, and the sentencing procedure. Appellant also alleges that the trial court erred by not providing him with a complete transcript of the grand jury proceedings and by denying his motion for a new trial based on newly discovered evidence.

I. Hearsay
A. Letter

Appellant asserts that the trial court committed reversible error by admitting, over his objection, a letter dated October 21, 1986, approximately a week before the fire. The letter was written by Gloria Bustamante to her mother, Frances Dahl. In the letter, Gloria described the Bustamantes' efforts to make money through the sale of some personal items and an unsuccessful application for a bank loan and told her mother that she and appellant had recently acquired jobs. She also asked Dahl for a loan of $1,000:

Mama, I hate to ask but I was wondering if we could borrow $1000.00 for now. Maybe by the end of the year we can pay you back $100.00 a month.... If you can't--don't worry--I will understand. Here is a list of why we need it.

                House           $ 411.01  (Oct)
                Tires             150.00
                Battery            50.00
                My Eye Glasses    125.00
                Utilities         150.00  part of Sept & Oct
                                  411.01  (Nov)
                         TOTAL  $1297.02

Appellant argues that the letter was improperly offered to establish the fact of appellant's financial need and the existence of a motive for him to set the fire.

Hearsay is an out-of-court statement offered to prove the truth of the facts asserted therein and rests on the credibility of a declarant who is not in court and is unavailable for cross-examination. Hughes v. State (1989), Ind., 546 N.E.2d 1203. If challenged evidence is hearsay and does not fall within one of the exceptions to the rule, then it is inadmissible. Indianapolis Newspapers, Inc. v. Fields (1970), 254 Ind. 219, 259 N.E.2d 651 (2-2 decision; DeBruler, J.). That part of Gloria's letter which requested a loan from her mother is not hearsay at all because it asserted no fact as true which was susceptible to being true or false. True requests, commands, and questions are not assertions, and evidence regarding such utterances may come in because they are not offered for the truth of the facts asserted. Mayhew v. State (1989), Ind., 537 N.E.2d 1188 (per curiam); Indianapolis Newspapers, 254 Ind. 219, 259 N.E.2d 651.

In Hughes v. State, 546 N.E.2d 1203, a married couple was murdered by their daughter's boyfriend, and a friend of the murdered woman testified that she believed the victims wished to limit the amount of time their daughter spent with the defendant and, over defense objection, that the woman had told her that they had imposed a curfew on their daughter. This Court held that this testimony was not hearsay and therefore admissible because the witness's "testimony was offered not to prove the truth of the matter asserted by [the victim], but was introduced to establish her state of mind concerning her relationship with [her daughter] and the circumstances which led to the victims' deaths." Id. at 1208.

Here, by contrast, those parts of Gloria's letter which described the Bustamantes' efforts to make and earn money and which listed the debts to be paid with the loan requested from Dahl were introduced to establish as true her negative assessment of the family's financial situation and carried the plain inference that appellant had made the same assessment and therefore had the state of mind and a reason to set fire to the house. As such, it was hearsay, and because it did not fall within one of the exceptions to the hearsay rule, its admission by the trial court was error. This was an error of state law. As such, it is subject to state harmless error analysis. An error of this type will result in reversal only if it appears that there was prejudice to appellant's substantial legal rights. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759. Other evidence, namely, a handwritten promissory note signed by both appellant and Gloria and testimony regarding the circumstances surrounding that note, provided proof independent of Gloria's letter supporting the inference that appellant felt financial pressure. Therefore, the error in the admission of the letter by the trial court was harmless.

B. Out-of-Court Statement

Appellant called Bill Billings to question him regarding a conversation he had with one Christopher Cotton, and the State objected on hearsay grounds. In an offer to prove outside the presence of the jury, Billings testified that during a conversation he had with Cotton and two other witnesses, Cotton suggested that he knew something more about the fire at the Bustamante residence than was known generally. 1 At the time of trial, Cotton was incarcerated in the Marshall County Jail and was under subpoena by appellant, and during the offer to prove, Billings stated to the court that Cotton was being held under an arson charge. Following Billings's testimony, the State renewed its objection, which the trial court sustained. Appellant asserts that this ruling was erroneous under Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, and its progeny, arguing that no hearsay problem existed here since Cotton was under subpoena and incarcerated and therefore was available for cross-examination by the State. Appellant's argument fails, however, because the foundational requirements for admission of evidence under the Patterson rule are not met under this scenario. In order to admit what would otherwise be inadmissible hearsay under the Patterson rule, the out-of-court declarant must not only be accessible to the opposing side for purposes of cross-examination, but must be present at trial and must, in fact, be called as a witness by the proponent of the hearsay statement at some point in the proceedings. Watkins v. State (1983), Ind., 446 N.E.2d 949, 961 (citing with approval D.H. v. J.H. (1981), Ind.App., 418 N.E.2d 286). Furthermore, Cotton was under appellant's own subpoena, and nothing in the record or appellant's brief explains why appellant did not call Cotton to the stand. Since Cotton was available to testify to what he knew, the court's ruling, which prevented Billings from testifying as to what Cotton knew, could not but be harmless error.

II. Sufficiency of the Evidence

At approximately 12:35 a.m. on October 27, 1986, a fire broke out and destroyed appellant's home in Bremen. His wife, Gloria Bustamante, was trapped upstairs and died of carbon monoxide poisoning due to smoke inhalation. Following an investigation, it was determined that the cause of the fire was arson. Appellant acknowledges an abundance of evidence showing that the fire which resulted in the death of his wife was arson, but argues that the evidence identifying him as the perpetrator of these crimes was entirely circumstantial in nature and insufficient to sustain his convictions. Elements of offenses and identity may be established entirely by circumstantial evidence and logical inferences drawn therefrom. McVey v State (1988), Ind., 531 N.E.2d 458. On appellate review of circumstantial evidence of guilt, this Court need not determine whether the circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence, but rather whether inferences may be reasonably drawn from that evidence which support the verdict beyond a reasonable doubt. Kidd v. State (1988), Ind., 530 N.E.2d 287.

The facts adduced at trial, when viewed in a manner favorable to the verdict, show the following: Rodney Leeper, appellant's neighbor, testified that between 12:30 and 12:35 a.m. on October 27, 1986, he awoke to the sound of yelling from the street. Thinking it was kids, he did not get up. Then he heard the sound of glass breaking and rolled over to look out the window next to his bed. He saw fire coming out of the south dining room window of the Bustamante residence and appellant standing in his driveway in front of his garage. Leeper immediately called the fire department and started next door. By the time he got across the street, the flames from the window had climbed up the side of the house to halfway to the bottom of the second story window, and appellant was looking and pointing to the upper part of the house, shouting that his wife was inside.

Firefighters responded within four minutes of Leeper's call, and fire investigators testified at trial that the "total involvement" in the fire of the downstairs at the time firefighters arrived indicated to them from the beginning that the fire was probably arson, as accidental fires tend to be more localized, move more slowly, and have the most extreme damage centered around a single point of origin. Firemen spent twenty to thirty minutes suppressing the flames and heat to the point that they could enter to look for Gloria.

Once the fire was out, investigation of the burn and smoke patterns in the house suggested that an...

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