Smith v. State
| Decision Date | 21 December 1999 |
| Docket Number | No. 48S00-9807-CR-414.,48S00-9807-CR-414. |
| Parties | Omond J. SMITH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Montague M. Oliver, Jr., Anderson, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Rosemary L. Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.
Omond J. Smith was convicted of the murder of Steven David Riggs and carrying a handgun without a license as a Class C felony, and was found to be a habitual offender. He was sentenced to 103 years imprisonment. In this direct appeal, he contends that the trial court erred by (1) admitting portions of Smith's taped interview with the police which contained inadmissible hearsay, references to Smith's prior bad acts, and a lay witness' testimony of guilt; (2) admitting hearsay testimony of two witnesses; and (3) restricting cross-examination of two other witnesses designed to explore bias based on their pending criminal charges. We reverse and remand to the trial court.
Factual and Procedural Background
Early on the morning of January 11, 1997, Anderson police received a phone report of a man lying in the middle of the street. After finding Riggs' body, police began looking into known drug houses in the area and identified Smith's nearby home. Shell casings found at the scene of the crime matched casings found in the front and back yards of Smith's house. Later, the police received a tip that Tommy Lampley had witnessed the crime.
Smith was arrested and found guilty of murder in a jury trial. Lampley was the State's principal witness, and gave the following account. The day before Riggs' body was found, Smith and Lampley had gone to Smith's house where Riggs was waiting. Smith suspected Riggs of having stolen Smith's drugs. After Smith unsuccessfully searched the house for the drugs, he patted Riggs down and found a bag of marijuana or cocaine. Riggs and Smith then began an argument that spilled outside and resulted in Riggs' fleeing on foot. Smith pursued in a truck and shot Riggs four times, twice in the head.
Several witnesses placed Smith and Lampley with a gun around the night of the murder. Smith did not testify at trial, but before trial had given two conflicting versions of Riggs' death. First, in a letter received by the prosecutor's office on February 20, 1997, Smith claimed that Lampley had killed Riggs after the two of them got into a fight. According to Smith, because Lampley was too drunk to fight back, Lampley shot Riggs. On June 10, almost four months after the letter was received, Smith was interviewed by Detective Sollars of the Anderson Police Department. In that interview, Smith again claimed that Lampley had killed Riggs, but stated that Lampley had sold Riggs fake drugs. In this version, after Riggs found out the drugs were fake, he demanded his money back from Lampley and an argument ensued that resulted in the shooting.
After a lengthy conference at which portions of the interview were held inadmissible, an edited version of the videotape of Detective Sollars' interview with Smith was admitted. Smith objected to several of the admitted portions of the tape including statements by Sollars. He contests three of these rulings in this appeal.
Smith contends that three of Sollars' statements in the tape asserted Smith's guilt in the current crime and constituted inadmissible hearsay. Specifically, in the first two challenged statements Sollars stated, "half of the people at the jail's [sic] called me wanting to tell me that you did it," and "[Lampley] said you did it because it was over him [Riggs] ripping you off your dope, your stash." Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). A statement is not hearsay if it is not used to prove the truth of the matter asserted. See Grund v. State, 671 N.E.2d 411, 415 (Ind.1996)
; see also Bufkin v. State, 700 N.E.2d 1147, 1150 (Ind.1998). The State relies on the doctrine that police questions and comments in an interview may be designed to elicit responses from the defendant and if so, are "not offered as proof of the facts asserted therein." Strong v. State, 538 N.E.2d 924, 928 (Ind.1989).
In Strong, the trial court admitted a tape recording of the defendant's statements to police. The defense objected on hearsay grounds to statements of the interviewing officer, including the following: Id. This Court held that there was no error in admitting the statements because they were not offered for the truth of the matters asserted and because the trial court gave a lengthy admonishment to the jury. See id.
In this case, neither Smith nor the State requested a limiting instruction or admonishment that Sollars' statements were not to be used for the truth of the matters asserted and none was given. Although a trial court has no affirmative duty to consider giving an admonishment absent a party's request to do so, see Humphrey v. State, 680 N.E.2d 836, 839-40 (Ind.1997),
the lack of an admonishment in this case combined with the fact that the statements appear to be assertions of fact by the detective, not mere questions, renders their admission error.
Smith also objected to the admission of another portion of the interview in which Sollars and Smith discussed Smith's reputation:
Here it is obvious that Sollars' utterances were not assertions of fact, but more in the nature of statements designed to elicit a response. Even without an admonishment, Sollars' statements and questions were admissible because they were similar to the comments and questions made in Strong and were designed to elicit a response from Smith, not to be accepted for the truth of the matters asserted. To the extent the objection was to Smith's responses, these were admissible under Indiana Evidence Rule 801(d)(2)(A), which exempts statements by a party-opponent from the definition of hearsay.
Second, Smith argues that the trial court erred by admitting Smith's own statement that he had a criminal record and had sold drugs. The State sought to admit this evidence pursuant to Indiana Evidence Rule 404(b). To be admissible under that Rule, the evidence must be relevant to some matter other than the defendant's propensity to commit crimes and the prejudicial effect of the evidence must not substantially outweigh its probative value pursuant to Indiana Evidence Rule 403. See Thompson v. State, 690 N.E.2d 224, 233 (Ind.1997)
.
Smith contests the admissibility of two separate statements:
The State claims that evidence of Smith's drug dealing bears on his motive to murder Riggs, who had stolen his drugs. However, two of Smith's three references to his past criminal record did not specify what other crimes he had committed. They therefore do not bear on the motive on which the State relies for its claim of relevance, and their admission under Rule 404(b) was error.
The only statement that referred to Smith's dealing was: "I made a mistake by selling drugs...." This may show that Smith had at one time been a drug dealer, but it did not show that he was dealing at the time of the murder. Its relevance was thus doubtful at best, and given its obvious prejudicial nature, its admission was dubious at best.
Finally, Smith contends that the trial court erred in admitting the portion of his police interview where Sollars stated, "I thought it was you." Indiana Evidence Rule 704(b) states that "[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case...." The State argues, without citation to any supporting authority, that the statement was admissible because it was not testimony in court.1 The Court of Appeals has applied Rule 704(b) to psychological reports that are not in-court testimony. See Griffin v. State, 692 N.E.2d 468, 472 (Ind.Ct.App.1998),
reh'g granted, 694 N.E.2d 304 (Ind.Ct.App.1998), vacated in part on other grounds by 717 N.E.2d 73 (Ind.1999). The same reasoning underlying Rule 704(b)'s prohibition of opinions of guilt during live in-court testimony applies to statements offered at trial that were made at another time or place. This admission too was error.
Smith alleges that the trial court erred by admitting statements of two witnesses in which they reported statements made by Riggs shortly before his murder. As stated earlier, hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," Ind. Evidence Rule 801(c), and is inadmissible unless it falls under an exception created by law or the Indiana Rules of Evidence, see Evid. R. 802.
First, Smith objects to the testimony of Julie Herb, Riggs' girlfriend, that on the day of the murder, Riggs told her he needed money to pay his dealer for drugs he had...
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