Gamble v. State
| Decision Date | 20 July 2005 |
| Docket Number | No. 49A02-0406-CR-490.,49A02-0406-CR-490. |
| Parties | Kenneth R. GAMBLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Teresa D. Harper, Bloomington, for Appellant.
Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, for Appellee.
Kenneth Gamble appeals his conviction for attempted murder, a Class A felony. We affirm.
Gamble raises three issues, which we restate as:
I. whether the admission of 911 calls violated his Sixth Amendment right to confrontation;
II. whether a statement made by the prosecutor in his closing argument was reversible prosecutorial misconduct; and
III. whether the jury was properly instructed.
In the evening of September 15, 2003, Levon Berry was working in the front yard of a home in Indianapolis with his friend April Taylor. Berry's brother, William Berry, joined the pair. Gamble lived across the street from where Berry was working. Apparently, Gamble had loaned William $20.00, and William gave Berry $20.00 with which to repay Gamble. Instead of repaying Gamble, Berry kept the money for himself. At some point, Gamble and his brother, Terry Berry, who were Berry's first cousins, arrived at Gamble's house. Gamble approached Berry about the money and began fighting with Berry. Berry backed away from Gamble repeatedly and insisted he did not want to fight, but eventually he fought back. During the fight, Gamble retrieved a bat from his house and began smashing Berry's bike with the bat until the bat broke. Gamble stated that he was going to kill Berry and Berry told Taylor that he was going home to get a gun. As he was running through an alley toward his house, Terry and Gamble followed him. Gamble fired a sawed off shot gun at Berry as he attempted to get into William's car. Berry was shot in the buttocks, leg, and wrist. Gamble and Terry then fled the scene.
After the shooting, two people called 911 and reported the incident. On September 18, 2003, the State charged Gamble with attempted murder. A jury found him guilty as charged, and he now appeals.
Gamble argues that the trial court improperly admitted a recording of a 911 call into evidence. The admission of evidence is within the trial court's discretion, and its decisions are reviewed only for an abuse of that discretion. McManus v. State, 814 N.E.2d 253, 264 (Ind.2004), cert. pending. Gamble relies on Crawford v. Washington, 541 U.S. 36, 69-69, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004), in which the Supreme Court addressed the admissibility of an out of court statement made to the police and held, "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."
Our supreme court has recently considered how Crawford affects the admissibility of statements that qualify as excited utterances under Indiana Evidence Rule 803(2). Hammon v. State, 829 N.E.2d 444, 449-450 (2005). The Hammon court observed:
Crawford thus makes clear that confrontation, not reliability, is the key to the Sixth Amendment right, which applies in state courts through the Fourteenth Amendment. Because it turns only on confrontation, Crawford bars admission of some forms of out of court statements that have been viewed as sufficiently reliable to be admissible under Rules of Evidence.
Id. (citation omitted). Based on Crawford, our supreme court observed that "testimonial" statements trigger Sixth Amendment confrontation rights. Id. at 450. Although the Supreme Court identified certain "core forms" of testimony that trigger the Sixth Amendment right to confrontation, it also considered statements that an "`objective witness reasonably [would] believe . . . would be available for use at a later trial"' as "testimonial" in nature. Id. at 452 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364) (alteration in original).
After considering the views of this court and the courts of other jurisdictions, the Hammon court concluded, "a `testimonial' statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings." Id. at 456. "In evaluating whether a statement is for purposes of future legal utility, the motive of the questioner, more than that of the declarant, is determinative, but if either is principally motivated by a desire to preserve the statement it is sufficient to render the statement `testimonial."' Id.
In light of this framework, Gamble asks us to consider whether a statement by an uninvolved witness made to a 911 operator is "testimonial," thereby invoking his Sixth Amendment right to confrontation. A tape recording of the two2 911 calls was admitted into evidence and played for the jury over Gamble's objection. The first call was from a woman asking to send someone because a person had been shot by a man in a maroon car. The woman indicated the three or four shots were fired, but she could not describe the shooter because he was in the car. The second caller reported that someone had been shot and was lying in the middle of the street. She indicated that she did not know who shot him because she only ran outside after she heard the gunshots.
Gamble distinguishes 911 calls made by third parties from those made by victims themselves. He asserts that third parties call 911 "specifically to report on and provide evidence regarding a crime." Appellant's Br. p. 8. When victims make 911 calls, however, they are "seeking immediate protection and attention from emergency personnel." Id. at 9. Accordingly, Gamble contends, the admission of the calls was in violation of his Sixth Amendment right to confrontation.
We disagree that the distinction is as simple as Gamble asserts. This issue is not who makes the call, but whether the caller's statement is "testimonial." In deciding whether 911 calls by persons other than victims are testimonial, one New York court concluded that they are because they follow established procedures, rules, and patterns of information collection, they are recorded like statements to a police officer, and they are preserved as official documents. People v. Cortes, 4 Misc.3d 575, 583-95, 781 N.Y.S.2d 401 (N.Y.Sup.Ct.2004). Moreover, the court emphasized that those reporting a crime know their statement will be used in an investigation and at proceedings relating to the prosecution. Id. at 595, 781 N.Y.S.2d 401.
We agree that 911 calls are subject to established procedures, recorded, and preserved and that those reporting a crime often know their statement might be used in an investigation and at proceedings relating to the prosecution. However, we cannot conclude that the admission of the 911 calls violated Gamble's Sixth Amendment rights because, under a Hammon analysis, the statements to the operators are not "testimonial."
In evaluating the motive of the questioner, we are well aware that 911 operators often obtain descriptions of suspects for identification purposes. However, we cannot say that 911 operators are "principally motivated" by a desire to preserve the statement for future investigations or prosecution. Hammon, at 456. Not all 911 calls by third persons are for the purpose of reporting a crime. Certainly, third parties call 911 to report medical emergencies, automobile accidents, fires, and other emergencies that are not criminal in nature. Instead, we conclude that 911 operators are principally motivated to alert the appropriate emergency personnel of emergency situations. A by-product this process is the gathering of information that may subsequently be used in a criminal investigation or prosecution.
The declarant's motive, however, is a much more fact sensitive consideration. Although we can contemplate a situation in which a victim or a third party might call 911 with the principal motivation of preserving a statement, such is not the case here. Both callers immediately reported that someone had been shot and identified the location of the victim. They also gave personal information identifying themselves. Neither caller gave physical descriptions of Gamble or any other information that could be used to implicate him other than one caller stating that the shooter was in a maroon vehicle. In fact, the other caller stated she was in her house when the shooting occurred and went outside only after hearing gunshots. It is clear that the principal motive of the callers was to alert emergency medical personal that someone had been shot. Under these circumstances, the callers' statements were not "testimonial," and the admission of the tapes did not violate Gamble's Sixth Amendment right to confrontation.
Gamble argues that a statement made by the prosecutor during closing arguments was prosecutorial misconduct. During his closing argument, the prosecutor stated, "You also, though, didn't hear any testimony about Kenny Gamble going to a police station." Tr. p. 322. Defense counsel objected on the basis that "the prosecutor is implying to the jury that there is a responsibility on, on the defendant to produce evidence, and there is no responsibility." Id. After the trial court sustained the objection, defense counsel moved for a mistrial, which the trial court denied.
As our supreme court has observed:
Not only must a defendant object to alleged misconduct, he or she must also request an appropriate remedy. Generally, the correct procedure is to request an admonishment. However, if counsel is not satisfied with the admonishment or it is obvious that the admonishment will not be sufficient to cure the error, counsel may then move for a mistrial.
Etienne v. State, 716 N.E.2d 457, 461 (Ind. 1999) (citations omitted). Where defense counsel neither requested...
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