ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Jeffrey Modisett
Marion County Public Attorney General of Indiana
Indianapolis, Indiana J.T. Whitehead
Deputy Attorney General
SUPREME COURT OF INDIANA
QUENTIS HARDIMAN ) ) Appellant (Defendant Below ), ) ) ) v. ) No. 49S00-9901-CR-10 ) ) STATE OF INDIANA ) ) Appellee (Plaintiff Below ). )
2. Whether the identification an eyewitness made in court was tainted by an unduly
suggestive pre-trial photo array;
3. Whether the State violated discovery orders by disclosing a fingerprint match only days
before the trial began; and
4. Whether the evidence was sufficient to support the conviction.
Detective Thomas Lehn arrived shortly after the incident and attempted to secure the
crime scene. Some thirty minutes later, he took statements from the two
women who had accompanied the deceased. While they had not witnessed the
shooting, they informed the detective that they heard several people in the crowd
say that Webber was the shooter. The detective mentioned these statements in
his report, and the defense attempted to admit the report at trial.
While investigating the crime scene, the police obtained several fingerprints from Terrells car.
The State initially tried to match these prints to those of Hardiman,
but was unsuccessful due to a problem with the computer system. One
week before trial the State again requested a print comparison and found the
two prints were a match. Alleging a discovery violation, Hardiman sought to
suppress this evidence, but the trial court denied his motion.
The trial court excluded the report, finding that the sources of the information
in it suggested a lack of trustworthiness. (R. at 485.) The
trial courts discretion to admit or exclude evidence is broad, and this Court
will not reverse the trial court absent an abuse of that discretion.
See Platt v. State, 589 N.E.2d 222 (Ind. 1992). A trial
court abuses its discretion when its evidentiary ruling is clearly against the logic,
facts and circumstances presented. Id.
Hardiman is seeking to prove that Webber was, in fact, the shooter by introducing a written report that records statements by witnesses not present at trial that they heard unnamed members of a crowd say that it was so. This is a tall order. When faced with multiple hearsay, each part of the combined statement must conform with a hearsay exception. Ind. Evidence Rule 805. In attempting to introduce the police report, Hardiman must show that each assertion--the police report, the witnesss statement, and the crowds shouting--fits within an exception to the hearsay rule.
As a starting point, the police report itself must qualify under one
of the hearsay exceptions. Rule 803(8) covers the admissibility of public records
and reports. When offered by the accused in a criminal case, investigative
reports by police personnel fall within this exception. Evid. R. 803(8)(a).
Because Hardiman offered the report, the first hearsay problem is resolved favorably to
The statements of the two witnesses to the detective are more problematic.
In his brief, Hardiman fails to recognize the fact that the statements attributed
to the two women are hearsay. Instead, he moves on to the
utterances of the crowd immediately after the shooting, saying they are excited utterances.
We need not address this third hearsay problem, for Hardimans mission stalls
on the admissibility of the womens statements.
Detective Lehn interviewed the two women, Valetta and Regina Scurlock. He recorded
their statements individually, commencing about thirty minutes after his arrival on the scene.
Roughly speaking, the Scurlock statements were given forty-five minutes after Terrells shooting.
While the women were emotionally shaken, they were neither crying nor agitated
when the detective interviewed them. (R. at 458-59.)
While Hardiman has not suggested a reason the Scurlock statements might be admissible,
we suspect the most promising hearsay exception would be an excited utterance under
Rule 803(2). An excited utterance is a statement relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event. Evid. R. 803(2).
The underlying rationale of the excited utterance exception is that such a declaration
from one who has recently suffered an overpowering experience is likely to be
truthful. Gye v. State, 441 N.E.2d 436 (Ind. 1982). While the
event and the utterance need not be absolutely contemporaneous, lapse of time is
a factor to consider in determining admissibility. Holmes v. State, 480 N.E.2d
916 (Ind. 1985). Similarly, that the statements were made in response to
inquiries is also a factor to be considered. Gye, 441 N.E.2d at
438. Whether given in response to a question or not, the statement
must be unrehearsed and made while still under the stress of excitement from
the startling event.
Yamobi v. State, 672 N.E.2d 1344 (Ind. 1996).
The heart of the inquiry is whether the declarants had the time for reflection and deliberation. The trial court could reasonably have concluded that they did. The womens statements were given well after the shooting, and the two were not directly connected to the shooting except as bystanders. Moreover, the statements were not spontaneous declarations; the women were waiting in line to give statements to the investigating officer of an apparent homicide. This collection of circumstances persuades us that the trial judge acted within the bounds of his discretion in excluding the statements.
It is certainly possible that a pre-trial identification may occur in a manner
so impermissibly suggestive and conducive to irreparable mistaken identification that permitting the witness
to identify the defendant at trial may violate due process of law.
Young v. State, 700 N.E.2d 1143 (Ind. 1998). On the other hand,
a witness who participates in an improper pre-trial identification procedure may nevertheless identify
the defendant in court if the totality of the circumstances shows convincingly that
the witness has an independent basis for the in-court identification. Id.
Factors to be considered in making this determination include the amount of time
the witness was in the presence of the perpetrator, the distance between the
two, the lighting conditions, the witness' degree of attention to the perpetrator, the
witness' capacity for observation, the witness' opportunity to perceive particular characteristics of the
perpetrator, the accuracy of any prior description of the perpetrator by the witness,
the witness' level of certainty at the pre-trial identification, and the length of
time between the crime and the identification. Utley v. State, 589 N.E.2d
232, 238 (Ind. 1992), cert. denied, 506 U.S. 1058 (1993).
Hardiman argues that the policemans statement following Gillespies identification was unduly suggestive. We
need not decide whether the events that transpired after the lineup violated Hardiman's
Fourteenth or Sixth Amendment rights, however, because we are satisfied that the totality
of the circumstances clearly and convincingly demonstrates that Gillespie had an independent basis
for identifying Hardiman at trial.
Gillespie testified that she had been in Hardimans company before the incident, that
she witnessed the verbal confrontation, that she was seated directly across from the
victims vehicle at the time of the shooting, and that she saw Hardiman
take out the weapon and fire it. Moreover, Gillespie expressed certainty in
her pre-trial identification before any possible suggestive influence arose.
The trial court did not err. The events of Gillespie's pre-trial identification
were fully explored on cross-examination. It was up to the jury to
determine what weight to give Gillespie's in-court identification in light of her earlier
lack of cooperation. Harris v. State, 619 N.E.2d 577 (Ind. 1993).
Hardiman argues that this delay and withholding of evidence amounts to unfair surprise,
gross misleading and bad faith. In opposition, the State contends that an
earlier positive identification of the fingerprints was not possible due to computer problems,
and that Hardiman received notice immediately following the match.
If a partys noncompliance with pre-trial discovery orders is grossly misleading or done
in bad faith, then evidence may be excluded. Nettles v. State, 565
N.E.2d 1064 (Ind. 1991). A trial court has broad discretion in ruling
on issues of discovery and we will interfere only where an abuse of
discretion is apparent. Jenkins v. State, 627 N.E.2d 789 (Ind. 1993), cert.
denied, 513 U.S. 812 (1994).
Hardiman knew about the fingerprints for six months before trial, and he was
aware of the States difficulty in finding a positive match. Several days
before trial, both the State and defense requested an individual comparison between the
fingerprints taken from the scene and Hardiman. The State gave notice of
a positive match on the same day a match was discovered.
Under these circumstances, it was within the discretion of the trial court to admit this evidence or grant a continuance.
Dickson, Sullivan, Boehm, and Rucker, JJ. concur.