ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lesa Lux Johnson Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
Charles Michael Hatcher, )
Appellant (Defendant Below), )
v. ) Cause No. 49S00-9908-CR-426
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
October 5, 2000
Marilyn Patton met George Frederick on October 8, 1996, and they began dating,
seeing each other three or four times a week. Frederick
encountered Hatcher twice at Pattons mothers apartment. The second encounter occurred when
Frederick knocked on the apartment door and Hatcher answered, saying, I told you
she dont want to see you no more, so stay away from her.
(R. at 481-82.) Frederick also testified that he received a call
at work from Hatcher, who stated, [I]f I catch you together again Ill
kill you both, and I wont do three years. (R. at 482.)
Patton asked Frederick to give her a pistol. Instead, he gave her
a knife, which she carried in her purse.
On November 20, 1996, Patton and Frederick went to a nightclub. They
left the club at about 11:15 p.m. and headed back to a friends
home where Patton had earlier parked her mothers car. Patton reclaimed the
car and drove toward her mothers apartment.
On the same evening, Hatcher called Pattons mother several times leaving messages for
Patton. The calls began about 9 p.m. and ended at about 11:30
The next morning, Patton was found dead in her mothers car, which was parked by the side of the road. Her purse was still in the car; it contained an emergency protective order issued three weeks earlier against Hatcher.
An autopsy revealed that Patton died of multiple stab wounds. Her
body had a total of fifty-three stab and incised wounds, all inflicted with
a sharp object.
Hatcher filed a Motion for Notice of States Intent to Proffer 404(b) Evidence on July 14, 1998. Eleven months later, on June 15, 1999, the State filed its Notice of Intent to Introduce Evidence. The murder trial began six days later.
As a preliminary matter, the court heard arguments regarding the reasonableness of the
States notice and the admissibility of the Rule 404(b) evidence of other crimes,
wrongs, or acts listed in the notice. At trial, Hatcher objected to
the States presentation of the evidence in question, and the court overruled his
Hatcher was convicted of murder and sentenced to sixty-five years.
A. 404(b) Notice. Hatcher first claims that the States notice of intent to submit
certain 404(b) evidence, six days before trial, did not comply with the reasonable
notice provision in Rule 404(b). Hatcher also mentions that no good cause
[was] shown by the [S]tate for failing to give earlier notice. (Appellants
Br. at 5-7.)
Reasonable notice of intent to offer evidence of other crimes, wrongs, or acts is a prerequisite for admissibility. Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind. Ct. App. 1996)(citing United States v. Barnes, 49 F.3d 1144, 1147 (6th Cir. 1995)). The defendant has the burden to make a reasonably understandable and sufficiently clear request for such notice from the State. Id. Moreover, a defendant who is not given notice after making a proper request must object to the States 404(b) evidence at trial to preserve any error for appeal. See footnote Abdul-Musawwir, 674 N.E.2d at 975 (citing Butler v. State, 622 N.E.2d 1035, 1041 (Ind. Ct. App. 1993)). Hatcher did both.
As the Court of Appeals has observed, there is no hard and fast
rule governing the time period in which the State should respond to an
appropriate request under 404(b). Dixon v. State, 712 N.E.2d 1086, 1091 (Ind.
Ct. App. 1999).
See footnote The reasonableness of the States notice is not merely
a function of its relation in time to either the defendants request for
notice or the date of trial. Determining whether the States notice was
reasonable requires an examination of whether the
purpose of the notice provision was
achieved in light of the circumstances of a particular case.
See footnote The purpose
of the reasonable notice requirement in Rule 404(b) is to reduce surprise and
to promote the early resolution of questions of admissibility.
Abdul-Musawwir, 674 N.E.2d
at 975 (citing United States v. Long, 814 F.Supp. 72, 73 (D. Kan.
The States notice indicated it intended to offer evidence that the victim sought
and was granted an emergency protective order against the defendant in October 1996.
The defendant had threatened to kill the victim in the [sic] October
1996 and November 1996. Their relationship had times of violence.
(R. at 94.) The notice also indicated the States intent to call
six named witnesses to testify about 404(b) issues.
Hatcher was not surprised by this evidence. The record indicates that the
emergency protective order and evidence relating to Hatchers threats to the victim, and
the violence in their relationship, were previously disclosed to Hatcher through the discovery
provided by the State.
See footnote (R. at 164-65.) As for the witnesses
named in the notice and called to testify, each name also appeared
as a States witness in the information filed on July 10, 1998.
Hatcher acknowledged that he had also received statements from three of these witnesses.
Similarly, the six-day notice given to Hatcher was sufficient to promote the early
resolution of questions of admissibility. As a preliminary matter, the trial court
heard Hatchers objections and argument regarding the reasonableness of the States notice and
the admissibility of each item and witness contained in the notice, one at
a time. (R. at 161-66.) During this hearing, the State provided
a summary of each witness testimony.
In these circumstances, the trial court was warranted in finding that the States
six-day notice was reasonable.
B. 404(b) Evidence. Hatcher next claims that the States offer of the emergency protective order obtained by Patton against Hatcher did not have an acceptable purpose according to Rule 404(b). See footnote (Appellants Br. at 7.) Such evidence may be admissible to prove such things as motive, intent, and identity. Ind. Evidence Rule 404(b).
Charlton v. State, 702 N.E.2d 1045, 1049 (Ind. 1998), we said:
When a defendant objects to the admission of evidence on the grounds that it would violate Rule 404(b), the following test is applied: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendants propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.
This test is applied to ensure that the jury was precluded from making
the forbidden inference that the defendant had a criminal propensity and therefore engaged
in the charged conduct. Id. at 1050 (quoting Thompson v. State, 690 N.E.2d
224, 233 (Ind. 1997)).
The emergency protective order was relevant to motive and the history of Pattons relationship with Hatcher. As the State indicated, the existence of the protective order goes to show the victims fear, and the fact that they had difficulties. (R. at 168.)
We have previously held that a protective order may be admitted to indicate motive. See Fox v. State, 560 N.E.2d 648, 651 (Ind. 1990)(trial court did not abuse its discretion in admitting temporary protective order for purpose of proving defendants motive). In Fox, we also stated that evidence of motive is relevant in the proof of a crime. Id. We have even held that testimony indicating that a victim wanted to obtain a protective order against the defendant was admissible to show the defendants motive for committing murder and not to create an inference that defendant acted in conformity with his prior bad acts. Charlton, 702 N.E.2d at 1050.
Next, we examine Hatchers claim that unfair prejudice flowing from admitting the protective
order substantially outweighed its probative value for an abuse of discretion. Id.
The protective order was relevant to show the hostile relationship that
existed between defendant and the victim in order to prove motive for the
Id. Patton feared for her safety and sought protection against
being abused or threatened with abuse by Hatcher. (R. at 353; States
Exh. 40.) The fact that the protective order was found in Pattons
purse near her dead body tends to increase the importance of the evidence.
The protective order, unlike the petition for the order, did not contain Pattons
allegations as to why the order was needed. Rather, the order instructed
Hatcher to refrain from abusing, harassing or disturbing the peace of [Patton] by
either direct or indirect contact.... (Id.) The State presented other evidence that
was far more damaging to Hatcher. George Frederick testified that Hatcher threatened
to kill both Frederick and Patton if Hatcher caught them together again.
The State also presented an audio tape and a transcription of the tape
containing demands and threats Hatcher made to Patton.
See footnote In light of this
and other damaging evidence, we conclude the trial court did not err in
admitting the emergency protective order.
Autopsy photographs are admissible if (1) they provide relevant evidence, and (2) their
probative value is not substantially outweighed by their tendency to impassion the jury
against the defendant.
Malone v. State, 700 N.E.2d 780, 783 (Ind. 1998).
We review the trial courts admission of photographic evidence for an abuse
of discretion. Turben v. State, 726 N.E.2d 1245, 1247 (Ind. 2000).
The eight photographs depict a total of fifty-three stab and incised wounds inflicted
with a sharp object on nearly every area of Pattons body. The
pathologist testified that the several pictures would aid his testimony regarding the location,
clustering and relative size of the wound openings in the skin.
This was a relevant and appropriate purpose. See Harrison
v. State, 699 N.E.2d 645, 647 (Ind. 1998)(photographs are generally relevant if they
depict a victims injuries or illustrate a witness testimony).
The probative value of the eight autopsy photographs is not substantially outweighed by
their tendency to impassion the jury against the defendant. Although some overlap
exists, each photograph shows a different view of the several wounds ranging from
Pattons head to her lower leg. The photos do not depict the
body, or the wounds, in an altered or gruesome state. No error
At trial, Camilla Jackson testified that she heard Patton tell a police officer
that she was scared that [Hatcher] was going to kill her. (R.
at 418.) Jackson indicated that on October 30, 1996, she called the
police when Hatcher came to her home, knocked on the door, and demanded
to talk to Patton, who was hiding in Jacksons bathroom with her son.
The trial court allowed Jacksons testimony as an exception to the hearsay rule which permits,
[a] statement of the declarants 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 declarants will.
Ind. Evidence Rule 803(3). We review a trial courts hearsay ruling for
an abuse of discretion. Ross v. State, 676 N.E.2d 339, 345 (Ind.
We have noted three situations where such testimony is admissible: (1) to
show the intent of the victim to act in a particular way, (2)
when the defendant puts the victims state of mind in issue, and (3)
sometimes to explain physical injuries suffered by the victim. Taylor v. State,
659 N.E.2d 535, 543 (Ind. 1995). We decline the States invitation
to extend this list to include the admissibility of a victims state of
mind to show the nature of the relationship between the victim and the
defendant. (See Appellees Br. at 12.) Although the nature of the
relationship may be relevant to show motive, we recently observed that motive does
not constitute an exception to the hearsay rule. Willey v. State, 712
N.E.2d 434, 443 (Ind. 1999).
Jacksons statement was hearsay offered to prove the truth of the matter asserted,
that Patton was afraid that Hatcher would kill her.
See footnote The trial court
abused its discretion by admitting it under Rule 803(3).
Nevertheless, [w]e disregard error in the admission of evidence unless it affects the substantial rights of a party. Id. at 444 (citing Ind. Trial Rule 61). In light of the other evidence in this case regarding Pattons fear of Hatcher, including the emergency protective order, the erroneous admission of Jacksons testimony was harmless error. Its probable impact on the jury was sufficiently minor so as not to have affected Hatchers substantial rights. See id.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.