Appellant (Defendant),

        v.

STATE OF INDIANA,

    Appellee (Plaintiff).

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49S00-9708-CR-465
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Shepard, Chief Justice.

    Appellant Thomas Montgomery was charged with one count of murder, Ind. Code Ann. § 35-42-1-1 (West 1998), and one count of carrying a handgun without a license, Ind. Code Ann. § 35-47-2-1

(West 1998) . The jury found Montgomery guilty of both counts, and the trial judge sentenced him to a term of sixty years for murder and to a term of one year for carrying a handgun without a license, to be served concurrently. Montgomery appeals his conviction and sentence. We affirm.

    Officer Elam asked Jackson who shot him, but Jackson stated that he had to go home. The officer encouraged Jackson to relax and remain lying down, and again asked Jackson who shot him. Jackson repeated that he wanted to go home. He got up on his knees, but immediately collapsed. Jackson's fiancé, Sandura Stephens, arrived and helped the officer calm Jackson down. She and Officer Elam helped Jackson sit up against a fence. The officer again asked Jackson who shot him, and Jackson said: "Buster shot me." About a minute had passed from the time of Officer

Elam's arrival to the time of Jackson's statement.

    Jackson was taken to a hospital, where he died shortly after arrival. He had been shot four times, with bullets entering his chin, arm, thigh, and chest. The gunshot to the chest proved fatal. The bullet that entered Jackson's thigh appears to have entered his body from above while he was in a seated position.

    Thomas Montgomery, who is also known as "Buster," and Victor Jackson had been long-time friends. Stephens testified, however, that on the weekend before his death, Jackson told her that he had had an argument with Montgomery over disparaging remarks Montgomery had made about her. Amos Mitchell testified that he saw Jackson and Montgomery arguing that weekend, that Jackson threatened to shoot Montgomery if Montgomery continued to insult Stephens, that Jackson pulled a gun on Montgomery, and that Mitchell intervened to stop Jackson from shooting Montgomery . Stephens asked Jackson not to make a big deal of what had been said, and at her request, Jackson did not take his pistol with him when he left Stephens' apartment on the evening he was shot.

     After leaving Stephens' apartment, Jackson went to a nearby vacant lot to socialize with friends. Mitchell testified that he had been in the group with Jackson, but left when he saw Montgomery approaching and headed toward a liquor store down the block. He heard gunshots shortly thereafter and saw Montgomery going past him

and Jackson running in the opposite direction. Wilfred Martin came out of the liquor store after hearing gunshots and saw a man he identified at trial as Montgomery running toward him, carrying a handgun. After the man had run past him, Martin walked down the block and found Jackson lying on the sidewalk.

    After Montgomery was arrested, he told the investigating officer that he had been in the group with Jackson but had left to go the liquor store before the shooting. As he was walking back to the group, he heard shots being fired, everyone scattered, and he learned later that Jackson had died. Montgomery presented two witnesses who testified that he was near the liquor store talking with someone else when the shots were fired, at which point everyone around started running.

        (a) testimony by Officer Elam and Stephens about Jackson's identification of his assailant, and

        (b) Stephens' testimony about statements Jackson made concerning an argument he had had with Montgomery; and

    (2) whether the trial court properly imposed an enhanced sentence for murder.

    The Indiana Rules of Evidence define hearsay as "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). Hearsay is generally not admissible in evidence. Evid.R. 802. However, errors in the admission of evidence, including hearsay, are to be disregarded as harmless unless they affect the substantial rights of a party. See McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996). In determining whether an evidentiary ruling has affected an appellant's substantial rights, we assess the probable impact of the evidence on the jury. See id. Admission of hearsay is not grounds for reversal where it is merely cumulative of other evidence admitted. See id. at 331-32.

impending death, Evid.R. 804(b)(2).

    An excited utterance is defined as follows: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Evid.R. 803(2). In a case involving a shooting victim's identification of his assailant, this Court has explained:
    For a hearsay statement to be admitted as an excited utterance, three elements must be shown: 1) a startling event occurs; 2) a statement is made by a declarant while under the stress of excitement caused by the event; and 3) the statement relates to the event. Application of these criteria is not mechanical. Rather, under Rule 803(2), like its predecessor common-law doctrine, the heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. . . .

        . . . .

        A declaration does not lack spontaneity simply because it was an answer to a question. 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. . . .

        . . . [T]he time between the startling event and the hearsay statement is one factor to be considered in determining admissibility as an excited utterance. While a declaration is generally less likely to be admitted if it is made long after the startling event, the amount of time that has passed is not dispositive. . . . Again, the central issue is whether the declarant was still under the stress of excitement caused by the startling event when the statement was made. . . .

        . . . Being shot is a traumatic event, both physically and psychologically. Its startling effect, depending on the severity of the injury, can continue for hours or longer. . . .

        . . . .

        . . . We have addressed in several decisions whether a shooting victim's identification of the assailant was properly admitted as an excited utterance under common law. In nearly

every instance, we held the statement to be admissible. . . . [However], trial courts should not abdicate rational analysis in cases where a shooting victim has fingered a possible perpetrator. Fairness to the defendant requires an assessment of whether the declarant's statement was the product of reflective thought.

Yamobi v. State, 672 N.E.2d 1344, 1346-47 (Ind. 1996) (citations omitted).

    In this case, Officer Elam and Stephens arrived within minutes after Jackson had been shot four times. Jackson was lying face down on the sidewalk and bleeding. While Jackson did not answer the officer's first two inquiries as to the identity of his assailant, Jackson's expressed concern was to reach the safety of his home. After Jackson collapsed while attempting to get up, he answered the officer's third inquiry without hesitation. The officer did not suggest who the assailant might be, and although there were other people in the vicinity, there is no evidence that anyone else suggested that Jackson identify Montgomery in the short time it took for Officer Elam to arrive at the scene.

    We conclude that the trial court did not err in admitting into evidence under the excited utterance exception the testimony of Officer Elam and of Stephens that Jackson had identified Montgomery as his assailant. Because the identification was properly admitted on this basis, we need not consider whether any other hearsay exception would also apply.

    Present sense impression is defined as: "A statement describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter." Evid.R. 803(1). Jackson did not make the statement at issue while perceiving the event, and nothing in the evidence indicates that he was reporting the argument to Stephens immediately after it occurred. Nevertheless, even if the trial court erred in admitting Stephens' testimony on this point, it was merely cumulative of Mitchell's more detailed eyewitness account of the argument. We conclude that the admission of this evidence was at most harmless error. See McClain, 675 N.E.2d at 331-32.