Marcum v. State

Decision Date24 July 2002
Docket NumberNo. 06A01-0110-CR-374.,06A01-0110-CR-374.
Citation772 N.E.2d 998
PartiesBradley MARCUM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Bryan L. Cook, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cecelia K. Hemphill, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


BARNES, Judge.

Case Summary

Bradley Marcum appeals his conviction for domestic battery, a Class A misdemeanor. We reverse.


We restate the sole dispositive issue before us as whether the trial court erred in admitting into evidence K.M.'s written statement to police.


The facts most favorable to this verdict are that on the evening of November 1, 2000, there was a physical confrontation between Marcum and his wife, K.M. On November 3, 2000, Marcum and his wife had another dispute, after which Marcum called the police to file a battery report against her. Marcum was advised to go to the police department the next morning to give a written statement. Marcum then called K.M. and told her he was going to file a battery report against her the next morning. On the morning of November 4, 2000, before Marcum filed his written statement regarding the events from the previous night, K.M. filed a report alleging that Marcum had battered her on November 1, 2000.

The State later charged Marcum with domestic battery, a Class A misdemeanor, and intimidation, a Class D felony. At trial, the State called K.M. to testify about the altercation that took place on November 1, 2000. K.M. recanted her claim that Marcum had battered her, and the State offered into evidence the written statement that she had given to police on November 4, 2000. The trial court admitted the written statement into evidence, over Marcum's numerous objections, on the basis that the statement was an excited utterance and/or a recorded recollection. During its closing, the State urged the jury to carefully consider the written statement K.M. gave to police. The jury found Marcum not guilty of intimidation, but guilty of domestic battery. Marcum now appeals.


Marcum contends that the written statement K.M. gave to police on November 4, 2000, was improperly admitted hearsay and, therefore, his conviction should be reversed. When reviewing a trial court's rulings on the admissibility of evidence, we apply the abuse of discretion standard. Thompson v. State, 671 N.E.2d 1165, 1171 (Ind.1996). Even if the trial court errs in ruling on the admissibility of evidence, we will only reverse if the error is inconsistent with substantial justice. Ind. Trial Rule 61; Timberlake v. State, 690 N.E.2d 243, 255 (Ind.1997).

Indiana Evidence Rule 801(c) defines hearsay as an out-of-court statement offered in court to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible pursuant to Indiana Evidence Rule 802. Indiana Evidence Rule 803, however, enumerates exceptions to the hearsay rule.

Indiana Evidence Rule 803(2) provides that an excited utterance is admissible even if the declarant is available as a witness. In order for a hearsay statement to be admitted as an excited utterance, three elements must be present:

(1) a startling event has occurred; (2) a statement was made by a declarant while under the stress of excitement caused by the event; and (3) the statement relates to the event.

Ind. Evidence Rule 803(2). This is not a mechanical test; admissibility turns on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications. Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000). The heart of the inquiry is whether the declarant was incapable of thoughtful reflection. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.1996).

In Impson v. State, the court admitted a victim's statement made to police "immediately after the battery occurred, while she was crying and still upset because of the stress of the attack." 721 N.E.2d 1275, 1282 (Ind.Ct.App.2000). However, statements that the victim made to a police officer and an acquaintance several hours after the incident, where the victim had calmed down enough to invite friends to a cookout, were not admissible under the excited utterance and present sense impression exceptions to the hearsay rule. Id. at 1284.

In Lieberenz v. State, however, our supreme court affirmed the trial court's decision to admit statements that a rape victim made to relatives and police after a number of hours had passed since the attack. 717 N.E.2d 1242, 1246 (Ind.App.1999). The court based its decision on the descriptions of the victim's physical and psychological state, and capability of thoughtful reflection and deliberation in order to fabricate her story. Id. The victim was still visibly shaken and unable to speak clearly to police and relatives until several hours after the rape, making chances of thoughtful, deliberate falsifications highly unlikely. Id.

In the present case, the State offered the written statement that K.M. had given to police two and one half days after the alleged battery. The startling event occurred on November 1, 2000. It is apparent the statement given on November 4, 2000, although related to that event, was not made under the stress of excitement caused by the event. Also, K.M. testified that the statement contained deliberate falsifications.1 Following the altercation on November 1, 2000, K.M. stayed at the house until the next morning, then went to work for several hours; worked all day the following day; "went out with some friends" Tr. pp. 328 to a bar after work that night; returned home; went back to a tavern that night; stayed at her uncle's house, then finally gave her statement to police on the morning of November 4, 2000. Not only had two and one half days passed between the event and K.M.'s statement, her testimony indicated she was capable of thoughtful reflection and fabrication at the time she gave the statement. Therefore, the statement was inadmissible as an excited utterance.

In making its decision to admit this evidence, the trial court also relied on Indiana Evidence Rule 803(5), which provides:

a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

In Smith v. State, the court reiterated a three-tiered approach to determine the use of recorded recollections: (1) the unaided testimony of a witness is preferred; (2) if the unaided testimony is not available, the law prefers refreshed recollection; and (3) if the witness's recollection cannot be revived, "the recorded recollection exception to hearsay Rule 803(5) may be available to admit the document...

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    ...(Ind.2000)). “The heart of the inquiry is whether the declarant was incapable of thoughtful reflection.” Id. (citing Marcum v. State, 772 N.E.2d 998, 1001 (Ind.Ct.App.2002)). Although the amount of time that has passed is not dispositive, a statement that is made long after the startling ev......
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    ...N.E.2d 66, 68 (Ind.2000). The heart of the inquiry is whether the declarant was incapable of thoughtful reflection. Marcum v. State, 772 N.E.2d 998, 1001 (Ind.Ct. App.2002). Additionally, while a statement is generally less likely to be admitted as an excited utterance if it is made long af......
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    ...testified in detail about the murder, and therefore his letter is not admissible as a recorded recollection. See Marcum v. State , 772 N.E.2d 998, 1002 (Ind. Ct. App. 2002) (explaining that victim's previous written statement to police was not admissible under Evidence Rule 803(5) because i......
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