Kendall v. State

• Decision Date: 17 June 2003
• Docket Number: No. 49A02-0205-CR-392.,49A02-0205-CR-392.
• Parties: Steven KENDALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

790 N.E.2d 122

Steven KENDALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0205-CR-392.

Court of Appeals of Indiana.

June 17, 2003.

Lesa Lux Johnson, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Steven Kendall appeals his convictions for attempted murder as a class A felony¹ and aggravated battery as a class B felony.² Kendall raises three issues, which we restate as:

I. Whether the trial court abused its discretion by admitting evidence regarding a prior statement of a witness;

II. Whether the evidence is sufficient to sustain Kendall's conviction for attempted murder as a class A felony; and

III. Whether the evidence is sufficient to sustain Kendall's conviction for aggravated battery as a class B felony.³

We affirm in part, reverse in part, and remand.

The relevant facts follow. Kendall, Wesley Young, and Kendrick Morris often stayed at the McGinty residence on Carrollton Avenue in Indianapolis. However, on April 13, 2001, Kendall, Young, and Morris were told that they could no longer stay at the residence or "hang out" there. Transcript at 292. On April 14, 2001, Tyona LeShaun Mickens was leaving the McGinty residence. While standing across the street from the residence, Mickens saw a maroon sports utility vehicle ("SUV") stop in front of the McGinty residence and two men dressed in black get out of the SUV. At the same time, thirteen-year-old Tiara McGinty was about to leave her home when she observed two men dressed in black hooded shirts standing on the porch holding guns. The front door of the residence was open but the screen door was closed. Tiara was standing inside the house behind the screen door when the men began shooting at the door. Tiara turned to fall on the ground, and the men shot her in the legs and back. One bullet entered one of her thighs and exited out the other thigh. Another bullet entered her back, hit her lung, bruised her heart, broke her rib, hit her liver and lodged in her stomach. Mickens saw the two men get into the SUV and leave. Tiara had surgery to remove the bullet in her stomach and was hospitalized for eighteen days.

On May 14, 2001, Indianapolis Police Department Detective Jeffrey Wager interviewed Mickens. Detective Wager took a statement from Mickens during which she identified Young and Morris as the shooters and Kendall as the driver of the SUV. The State charged Kendall with attempted murder as a class A felony and aggravated battery as a class B felony. At trial, Mickens repudiated her out-of-court statement and testified that she could not identify the persons involved in the shooting. She further testified that Detective Wager told her the identity of the shooters and asked her to lie. Kendall's counsel moved to suppress the out-of-court statement, alleging that it was coerced, was improper impeachment evidence, and, contrary to the State's contention, was not admissible under Indiana Evidence Rule 801(d). The trial court held a hearing outside the jury's presence, listened to the taped statement, and heard testimony from Detective Wager. Following the hearing, the trial court found that Mickens's statement was voluntary and denied the motion to suppress. The trial court admitted the taped statement into evidence and the State played the tape for the jury. Detective Wager later testified about his May 14, 2001 interview with Mickens and the statement he took from her. Kendall's counsel objected on the same grounds articulated during the suppression hearing, and the trial court allowed the detective's testimony.

The jury found Kendall guilty as charged.⁴ The trial court entered judgments of conviction on both the attempted murder and the aggravated battery convictions. At the sentencing hearing, the trial court merged the aggravated battery conviction with the attempted murder conviction and sentenced Kendall to thirty years in the Indiana Department of Correction.⁵

I.

The first issue is whether the trial court abused its discretion by admitting evidence regarding Mickens's prior statement to Detective Wager. The trial court is given wide discretion in ruling upon the admissibility of evidence. Smith v. State, 730 N.E.2d 705, 708 (Ind.2000), reh'g denied. We review a trial court's evidentiary decision for an abuse of discretion and will reverse when the decision is clearly against the logic and effect of the facts and circumstances. Id.

Kendall first argues that the State called Mickens as its witness for an impermissible purpose. Kendall contends that the sole reason the State called Mickens as a witness was to impeach her and present inadmissible evidence. A party is "forbidden from placing a witness on the stand when the party's sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment." Appleton v. State, 740 N.E.2d 122, 125 (Ind.2001). However, the evidence Kendall claims is inadmissible related to Mickens's prior statement identifying Kendall as the driver of the SUV. In addition to that evidence, Mickens testified regarding the maroon SUV stopping in front of the McGinty residence and the two men dressed in black getting out of the SUV, shooting into the house, and returning to the SUV. Thus, in addition to the allegedly inadmissible evidence of Mickens's prior statement, Mickens also testified regarding the vehicle that the suspects were driving, how the suspects were dressed, and the suspects' actions. Consequently, we cannot say that the State placed her on the stand for the sole purpose of impeaching her and admitting otherwise inadmissible evidence. See, e.g., id. (holding that "we cannot definitively declare that the State placed [the witness] on the stand for the sole purpose of impeaching him").

Kendall also argues that the trial court abused its discretion by admitting Mickens's prior inconsistent statement and by failing to issue a limiting instruction to the jury. The State contends that the statement was admissible under Ind. Evidence Rule 801(d)(1)(c). We addressed the same issue in the two related appeals. See Young, No. 49A02-0205-CR-393, slip at 8; Morris, No. 49A05-0205-CR-225, slip at 11. We held that:

Rule 801(d)(1)(C) provides that statements are not hearsay when the "declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made shortly after perceiving the person." Here, Mickens testified at trial and was subject to cross-examination concerning her out-of-court statement. And at trial, Mickens testified that her previous identification of Young as one of the shooters was false. Finally, in analyzing whether an identification was made "shortly after perceiving the person," we held in Robinson v. State, 682 N.E.2d 806, 810-811 (Ind.Ct.App.1997), that the trial court properly admitted evidence of a witness's out-of-court identification that was given two months and thirteen days after that witness observed a shooting. Mickens's out-of-court statement was given only one month after she observed the shooting. Thus, the trial court properly admitted the statement under Rule 801(d)(1)(C).[⁶]

Still, Young contends that the admissibility of Mickens's statement should be analyzed under Evidence Rule 613, not the hearsay rules, and directs us to Pruitt v. State, 622 N.E.2d 469 (Ind. 1993), and Appleton v. State, 740 N.E.2d 122 (Ind.2001). In Pruitt, 622 N.E.2d at 472, the trial court allowed the jury to hear an audiotaped statement of a witness who, at trial, recanted her prior statement and claimed that what she had said on tape was a lie. The defendant argued on appeal that because the witness admitted at trial that she had lied on tape, she impeached herself. As a result, the defendant claimed that it was improper for the State to continue the impeachment by playing the tape to jury. Id. at 473. On appeal, our supreme court determined that the court did not err when it allowed the State to play the tape for the jury because "the jury was faced with the question of when [the witness] was telling the truth." Id. And because the witness claimed that she lied on tape as a result of duress, the State was allowed to play the tape in attempt to convince the jury that she was not under duress at the time she gave the statement. Id. In addition, the trial court instructed the jury that it was to consider the tape for the limited purpose of demonstrating that the witness had not been subjected to duress. Id.

Similarly, in Appleton, 740 N.E.2d at 124, two witnesses who had given out-of-court statements implicating the defendant repudiated their statements at trial. The trial court in that case allowed the prosecutor to read the witnesses' direct quotes from their pretrial statements and inquire about the accuracy of those statements. Id. The trial court also admonished the jury that it was not to treat the State's examination as substantive evidence. Id. On appeal, the court reaffirmed the general rule that, under Rule 613, once a witness has admitted an inconsistent prior statement, she has impeached herself and further evidence is unnecessary for impeachment. Id. at 125. Despite finding error in the State's method of impeaching these witnesses, the court concluded that the error was harmless. Id. at 127.

Here, Young relies on Pruitt and Appleton to support his claim that, under Rule 613, once Mickens admitted that she had lied in her out-of-court statement, she impeached herself and no additional extrinsic evidence should have been admitted. Additionally, while he concedes that, under Pruitt, it was proper for the court to admit Mickens's taped statement, it should have been admitted not as substantive evidence, but for the limited purpose of allowing the jury to decide whether Mickens was coerced into giving

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