Simmons v. State

• Decision Date: 15 January 2002
• Docket Number: No. 49A02-0103-CR-000136.,49A02-0103-CR-000136.
• Parties: James SIMMONS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

760 N.E.2d 1154

James SIMMONS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0103-CR-000136.

Court of Appeals of Indiana.

January 15, 2002.

Michael E. Caudill, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

James Simmons was convicted by a jury of murder and the trial court sentenced him to the Indiana Department of Correction for sixty-five years. Simmons now appeals his conviction. We affirm.

Issues

Simmons raises the following consolidated and restated issues for our review:

1. Whether the trial court properly admitted into evidence hearsay testimony from witnesses Elijah Bowman and Officer Powell;

2. Whether the trial court properly denied Simmons' motion for a mistrial.

Facts and Procedural History

The facts reveal that Simmons and Valencia Blair, both semi-truck drivers, met while driving the same route and soon afterward were engaged to be married. Blair ended the relationship in the early part of 2000. After the breakup, Blair became concerned for her safety and related to others that Simmons had threatened her. On February 14, 2000, Blair informed the police that Simmons had threatened her with a gun. On March 2, 2000, Blair was discovered dead in the cab of her semi-truck that was parked at the Flying J Truck Stop located on the south side of Indianapolis, Indiana. Blair had been shot multiple times.

On March 13, 2000, the State charged Simmons with murder, a felony, and carrying a handgun without a license, a Class A misdemeanor. The State later dropped the handgun charge. On January 2, 2001, Simmons filed a motion in limine with the trial court to prohibit the State and any witnesses from mentioning or testifying that Blair had made the statement that she was afraid of Simmons. The State sought to admit the declarations made by Blair to two witnesses, Elijah Bowman and Officer Powell, that she was afraid of Simmons and that Simmons had threatened her with a gun. Bowman was a confidant and former husband of Blair. Officer Powell took the police report on February 14, 2000, where Blair alleged that Simmons had threatened her with a handgun. On January 4, 2001, the trial court held a hearing on Simmons' motion in limine. The trial court concluded that Bowman could testify that Blair feared Simmons and that her intent was to end her relationship with Simmons, to call off the wedding. However, the court ruled that the same evidence was not admissible to prove Simmons' prior bad act of threatening Blair with a handgun. With regard to Officer Powell, the trial court determined that the police officer could testify that on February 14, 2000, he responded to a 911 call made by Blair. The court further determined that Officer Powell could also testify that Simmons, while in an excited state, claimed that Simmons had threatened her with a gun. In addition, the trial court ruled that Simmons' "motion in limine as to any descriptions of prior bad acts; that is pulling guns and that sort of thing, is granted." R. 40.

The jury convicted Simmons as charged and the trial court sentenced him to the Indiana Department of Correction for sixty-five years. This appeal ensued.

Discussion and Decision

I. Admission of Evidence

Simmons first contends that the trial court committed reversible error in admitting the hearsay testimony of Bowman and Officer Powell. We disagree.

A. Standard of Review

Our standard of review in this area is well settled. The admission of evidence is within the sound discretion of the trial court, and the decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Spires v. State, 670 N.E.2d 1313, 1315 (Ind.Ct.App.1996). In determining the admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Reaves v. State, 586 N.E.2d 847, 857 (Ind.1992).

B. Preservation of Error

Initially, we will address the State's contention that Simmons waived for our review the issue of the admission of the hearsay statements of Bowman and Officer Powell because he did not make a contemporaneous objection to the testimony at the time it was offered into evidence. The State argues that Simmons' continuing objection to the admission of the hearsay statements was insufficient for the purpose of preserving the errors for our review.

In order to preserve error in the overruling of a pre-trial motion in limine, the appealing party must object to the admission of the evidence at the time it is offered. Palmer v. State, 640 N.E.2d 415, 422 (Ind.Ct.App.1994). A motion in limine is not a final ruling on the admissibility of evidence, and a ruling on the motion does not preserve the error for appeal. Id. Our supreme court has held that an objection must be specific in order for the issue to be preserved for appellate review. Willis v. State, 510 N.E.2d 1354, 1357 (Ind.1987). The record reveals that Simmons made several contemporaneous objections to Officer Powell's testimony when it was admitted at trial. Therefore, Simmons clearly preserved for our review the issue of the admission of Officer Powell's hearsay testimony at trial. The question remains whether Simmons also preserved for our review the issue of the admission of Bowman's hearsay testimony at trial.

The record reveals that immediately prior to the State calling Bowman and Officer Powell to the stand and out of the presence of the jury, Simmons asked the court for a clarification of its earlier ruling on its motion in limine and the admissibility of the two witnesses' hearsay testimony. Specifically, Simmons stated:

Judge, one of the things we need to do, we know we're getting into that part where we already have had a hearing and you made a ruling on the hearsay.... I think we need a clarification. First of all, we would probably want to show our continuing objection and renew our objection, although I understand that the Court of Appeals doesn't like what they call continuing objections, they say in order to preserve you have to object. But we need to, as to we want to bring those witnesses in now that [sic] are in that sensitive part. We need to kind of have a clarification as to what the State can ask and what we can object to.

R. 248-49. Thereafter, the trial court reiterated and clarified its earlier ruling on Simmons' motion in limine.

We have not expressly disapproved continuing objections. See Sullivan v. State, 748 N.E.2d 861, 864 (Ind.Ct.App.2001)

. The record must demonstrate that the continuing objection or reference to a prior objection fully and clearly advises the trial court of the specific grounds for the objection. See Ind. Trial Rule 46. At the motion in limine hearing, Simmons engaged in a heated argument with the State regarding the admission of the witnesses' hearsay statements and asserted several arguments in support of his motion in limine. It is evident from the record that the trial court, during the State's presentation of the evidence, was fully cognizant of Simmons' objections to the hearsay statements. Moreover, Bowman's testimony was extremely brief, lasting only a few minutes. We believe that Simmons' actions were sufficient to fully apprise the trial court of the specific basis for his objection, thus permitting effective appellate review of the trial court's rulings. Therefore, we reject the State's claim of waiver. We must now examine the merits of Simmons' claims.

C. Admissibility of Bowman's Hearsay Testimony

Bowman testified at trial that on February 12, 2000, Blair informed him that she had broken off her engagement with Simmons, and that she feared for her safety. Bowman further testified that Blair informed him that she feared Simmons and thought that she would be killed.

Hearsay is a statement made out-of-court that is offered into evidence to prove the truth of the fact or facts asserted in the statement itself. Evid. Rule 801(c); Craig v. State, 630 N.E.2d 207, 209 (Ind. 1994). In the present case, the contested portions of Bowman's testimony constitute hearsay. Blair made the statements out-of-court and Bowman repeated the statements at trial, for the purpose of proving the facts asserted in the out-of-court statements, namely that Blair feared Simmons and had ended the relationship. Such hearsay is not admissible at trial unless it fits within some exception to the hearsay rule. Craig, 630 N.E.2d 207.

The trial court admitted Bowman's hearsay testimony pursuant to Indiana Evidence Rule 803(3). This evidentiary rule provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness.

* * *

(3) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it related to the execution, revocation, identification, or terms of declarant's will.

In addition to the requirement that hearsay fall under an exception to be admissible, our Rules of Evidence also mandate that only relevant evidence is admissible. Evid. R. 402. The Indiana Supreme Court has observed that a "victim's state of mind is relevant where it has been put in issue by the defendant." Angleton v. State, 686 N.E.2d 803, 809 (Ind.1997) (citing Taylor v. State, 659 N.E.2d 535, 543 (Ind.1995)). It does not appear from the record that Simmons put Blair's state of mind at issue. It was clear throughout the trial that Simmons and Blair had been engaged to be married, and Blair had ended the engagement. Simmons primary defense at trial was that he was somewhere else other then the Flying J Truck Stop...