ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James F. Stanton Jeffrey A. Modisett
Crown Point, Indiana Attorney General of Indiana
James D. Dimitri
Deputy Attorney General
SUPREME COURT OF INDIANA
SEAN D. GATES, ) ) Appellant (Defendant below ), ) ) v. ) Cause No. 45S00-9802-CR-65 ) STATE OF INDIANA, ) ) Appellee (Plaintiff below ). )Cause No. 45G04-9701-CF-17
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable James L. Clement, Judge
SHEPARD, Chief Justice.
A Lake County jury found appellant Sean D. Gates guilty of murder, and the trial court sentenced him to sixty-five years in prison. We affirm.
The Morrises stopped in hopes of rendering assistance, and
Gates' accomplice began firing at them before running off. About
this time, the victim's uncle, Michael Shell, drove by the scene.
He recognized his nephew's car and stopped. After talking to the
Morrises, he departed to find the victim's father, Jeffrey Warren.
By the time they returned, the police and an ambulance had arrived and a small crowd gathered, including the two perpetrators. The Morrises identified the killers to Shell, Warren, and the police. Warren approached the two and said, "Are you the [people] who killed my son?" (R. at 140, 154-55.) Gates and his accomplice ran off, Gates saying, "We didn't know it was your son." (R. at 140.)
The Morrises testified at trial, identified Gates as the killer, and described the statements they made at the scene of the crime. Shell and Warren also testified. As the prosecution inquired about what they learned from the Morrises at the scene, defense counsel objected on grounds that such statements would be
hearsay. The trial court initially sustained these objections, but
evidence of the Morrises' statements eventually came in without
Gates now claims that it was error to permit Shell and Warren
to tell what the Morrises said. Because Gates did not object to
these statements, he has not preserved the issue for appeal. He
claims it was fundamental error. It was not.
Gates also claims that he received ineffective assistance of
counsel because his lawyer initially objected, successfully, and
then stopped doing so. To prevail on this claim, Gates must
demonstrate that his lawyer's performance fell below an objective
standard of reasonableness under prevailing professional norms.
Strickland v. Washington, 466 U.S. 668 (1984).
When Shell and Warren recited what the Morrises told them at
the scene, they were not offering hearsay testimony. Under Indiana
Evidence Rule 801(d)(1)(C), statements are not hearsay if "[t]he
declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is
. . . one of identification of a person made shortly after perceiving the person . . . ." Because the Morrises testified at trial about their identification of Gates at the scene of the crime, other witnesses were free to repeat their statements. Gates' lawyer achieved more for him in this regard than should have
been expected. He objected successfully to some of the statements.
It was hardly ineffective assistance to let the rest come in, as
they were plainly admissible.
We affirm the judgment of the trial court.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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