Davenport v. State
| Decision Date | 28 June 2001 |
| Docket Number | No. 71S00-9912-CR-800.,71S00-9912-CR-800. |
| Citation | 749 N.E.2d 1144 |
| Parties | John William DAVENPORT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Anthony V. Luber, South Bend, IN, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. BOEHM, Justice.
John William Davenport was convicted of the murder of Donna Hess and sentenced to sixty-five years imprisonment. In this direct appeal, he contends that: (1) the trial court abused its discretion in admitting inadmissible hearsay; (2) the trial court abused its discretion in refusing instructions on circumstantial evidence and the lesser included offense of reckless homicide; (3) the trial court erred during jury deliberations in failing to provide the jury with a transcript of the testimony of a witness; and (4) there was insufficient evidence of murder. We affirm the judgment of the trial court.
Factual and Procedural Background
On May 3, 1998, five-year-old Jeremy Dew awoke to loud noises in the kitchen of his home. Dew went into the kitchen to see what the noise was and discovered his mother, Donna Hess, and John Davenport fighting. Hess was crying and Davenport picked her up and threw her against the wall. When Dew attempted to help Hess, Davenport hit him in the head with a stick and Dew returned to bed.
When Dew awoke the next morning, he found his mother's body on the floor of the kitchen. Dew called 911 and told the operator that his mom "got beat up last night" and was dead. Dew was taken to the hospital where he told a social worker that "John" had hurt his mother. The cause of death was strangulation.
At trial, the court admitted a tape of the 911 call, a transcript of the 911 call, and Dew's statements to the social worker. There was also testimony from Shannon West, a friend of Hess, that Davenport was jealous of Hess' relationship with another man and had threatened Hess the day before she was killed. During jury deliberations, the trial court replayed the 911 tape at the jury's request. Davenport was found guilty of murder and sentenced to sixty-five years imprisonment.
Davenport challenges the trial court's admission of a tape of the 911 phone calls and Dew's statements to a social worker. He contends that both were inadmissible hearsay. The State responds that the statements were admissible under the excited utterance exception to the hearsay rule. Hearsay is an out of court statement offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). It is inadmissible unless it falls under an exception. Ind. Evidence Rule 802. Among the exceptions to the hearsay rule is: "[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." Ind. Evidence Rule 803(2). Determining whether a statement constitutes an excited utterance is essentially a factual determination subject to a clearly erroneous standard of review, sometimes described as the functionally equivalent abuse of discretion. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996).
For a hearsay statement to be admitted as an excited utterance, three elements must be shown: (1) a startling event, (2) a statement made by a declarant while under the stress of excitement caused by the event, and (3) that the statement relates to the event. Id. This is not a mechanical test. It turns on whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice § 803.102 (2d ed.1995); accord Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000)
.
The trial court admitted an audiotape of Dew's phone call to 911 and the responding call from the 911 operator as excited utterances. In the first, Dew told the operator that his mom "got beat up last night" and was dead. When asked who beat his mother, Dew responded his father.1 Dew then hung up, the operator called back, and Dew reiterated the information. When determining whether a statement is admissible under the excited utterance exception, "the trial court simply determines whether the evidence is sufficient to allow the trier of fact to find, by a preponderance of evidence, that the speaker was under the stress of the startling event or condition." Miller, supra, § 803.102, at 602. This need not be done in any specific manner. Ultimately, the issue for the trial court was whether the call was in fact made very shortly after this five year old discovered his dead mother's body, and whether this foundation was sufficient to meet the requirements of Indiana Rule of Evidence 803(2). The trial court did not abuse its discretion in admitting the 911 tape under the excited utterance exception. Dew experienced a startling event—finding the body of his mother—and then called 911 to report this finding. This is not the situation where time passed and the witness had time to reflect. Dew testified that he called 911 immediately after finding the body. The police officers who arrived at the house a few minutes later confirmed this when they described Dew as confused, in shock, upset, and fidgety. Given this testimony, we cannot conclude that the trial court abused its discretion in admitting the 911 calls under the excited utterance exception.
Davenport also challenges the foundation for the 911 tape. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Ind. Evidence Rule 901(a). Karen DePaepe, the Communications Center Director for 911 in South Bend, testified concerning the master list of the daily 911 phone calls and described the record keeping procedures for the 911 program. That is sufficient to establish the tape as an authentic recording of calls to the 911 number.
Davenport also challenged the trial court's admission of Dew's statements to a social worker shortly after finding the body. Dew was able to tell the social worker his name, his date of birth, and other background information. He then told the social worker, with a police officer present, that "John" hurt his mother.
The police officer's account of Dew's statement to the social worker was plainly hearsay because it was offered for the truth of the proposition that "John" injured Dew's mother. The trial court admitted the statement under the excited utterance exception. It seems somewhat of a stretch to conclude that a statement one half-hour after the discovery of the body was still made under the stress of the startling event. Although there is no rigid test of elapsed time, we have found the exception available one half-hour after the "startling event" only under extreme and continuing stress. See Yamobi v. State, 672 N.E.2d 1344, 1346-47 (Ind.1996)
(). Even if error, however, admission of this statement was cumulative of Dew's testimony and the 911 tape, and was harmless.
Davenport contends that because Dew did not testify about the statement at trial, it was inadmissible under Indiana Rule of Evidence 801(d)(1). This is incorrect. In the first place, the cited rule provides a path to admissibility of certain statements. It does not require exclusion of any statement. If its requirements are not met, a hearsay statement may nevertheless be admitted under other provisions. Second, Evidence Rule 801(d)(1) provides that certain statements are not hearsay if the specified conditions are met. These include that the declarant testifies at trial, is subject to cross-examination, and either: (1) the statement is inconsistent with the testimony and was given under oath at another proceeding; (2) the statement is consistent with the testimony and offered to rebut a charge of fabrication or improper motive made before the motive to fabricate arose; or (3) it is a statement of identification made shortly after perceiving the person. Under this provision, admission of Dew's statement does not turn solely on whether he testified at trial about the statement.
Davenport contends that the trial court abused its discretion in refusing his tendered instruction on circumstantial evidence. Although the trial court instructed the jury on the definitions of both direct and circumstantial evidence, it refused to give the following instruction tendered by Davenport:
In cases where circumstantial evidence alone is relied on, the circumstances disclosed by the evidence must be of such character and strength as to exclude every reasonable hypothesis except guilt. If circumstances disclosed can be explained on any reasonable hypothesis except guilt or can be explained on any reasonable theory of defendant's innocence, the defendant is entitled to acquittal. But circumstantial evidence alone may be sufficient to support a verdict of guilty, provided that the jury believe beyond a reasonable doubt that the accused is guilty as charged.
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