Lambert v. State, 1285
| Decision Date | 23 February 1989 |
| Docket Number | No. 1285,1285 |
| Parties | Michael LAMBERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 520. |
| Court | Indiana Supreme Court |
Defendant Michael Lambert was convicted of criminal deviate conduct and rape, resulting in two concurrent 25-year sentences. In his direct appeal, this Court affirmed the conviction of criminal deviate conduct and reversed the conviction of rape. Lambert v. State (1987), Ind., 516 N.E.2d 16 (Givan, J. and Pivarnik, J. dissenting to reversal of rape conviction).
Among the issues presented by defendant's petition for rehearing, we find merit in the contention that his conviction resulted from evidence erroneously admitted under the rule of Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, and its progeny.
At his trial, the defendant presented a strong alibi defense in the form of several apparently disinterested witnesses whose testimony regarding defendant's whereabouts would have precluded his involvement in the crime. The jury, however, made a finding of guilt based upon the versions of the prosecuting witness as presented by her own testimony and her prior out-of-court statements as related by other witnesses. In resolving the issue in our original opinion, we concluded:
As the proponent of the hearsay evidence, the State not only called the victim as a witness, but elicited from her the necessary foundational testimony regarding the specific evidentiary matters which were the subject of her prior out-of-court assertions. In addition, the victim underwent cross-examination upon such matters. This was a sufficient foundation to properly justify a Patterson hearsay rule exception.
516 N.E.2d at 21. We are now persuaded that our analysis and application of the Patterson rule was incomplete.
When the Patterson exception is sought to be applied to allow admission of hearsay as substantive evidence, the out-of-court declarant must also acknowledge having made the statement. When the declarant denies having made the statement in question or denies having any memory of having done so, the statement is inadmissible under the Patterson rule. Watkins v. State (1983), Ind., 446 N.E.2d 949, 960; Payne v. State (1987), Ind.App., 515 N.E.2d 1141, 1144; Jackson v. State (1985), Ind.App., 485 N.E.2d 144, 148. 1 Cf. Ruel v. State (1986), Ind.App., 500 N.E.2d 1274. A party wishing to use hearsay evidence under the Patterson rule exception must elicit the necessary foundational testimony from the witness regarding the out-of-court statement and its content. Douglass v. State (1984), Ind., 466 N.E.2d 721, 724. However, a witness's subsequent denial of the truth of the matters asserted in a prior out-of-court statement does not mandate its exclusion from evidence. Peckinpaugh v. State (1983), Ind., 447 N.E.2d 576, 578; Watkins, 446 N.E.2d 949; Lowery v. State (1982), Ind., 434 N.E.2d 868, cert. denied (1986), 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900; Smith v. State (1980), Ind.App., 400 N.E.2d 1137, 1141.
Identification of the defendant as the victim's attacker substantially rested upon police testimony that the victim declared after the incident: 1) that she had seen the defendant inside a nearby van shortly after her assault; and 2) that upon being taken to the defendant's home, the victim said, "that's him, and he still has the shirt on that he had on when he raped me." The officer testified that after the latter statement the defendant's driver's license was obtained and shown to the victim in the police squad car.
However, at no time did the victim acknowledge having made these statements to the police officer. The victim testified that she was not able to see who was driving the van and denied telling the officer that she saw the person in the van. Furthermore, the victim's trial testimony merely established that when she and the police officer went to the house where the van was parked, as the squad car pulled up the officer told the victim to "get low in the car, you know, to lay down on the...
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