ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHLEEN M. SWEENEY STEVE CARTER
Marion County Public Defender Agency Attorney General of Indiana
MATTHEW D. FISHER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JEREMIAH BEVERLY, )
vs. ) No. 49A02-0304-CR-298
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant Hawkins, Judge
Cause No. 49G05-0111-CF-216204
January 22, 2004
OPINION - FOR PUBLICATION
Jeremiah Jerry Beverly appeals his convictions for voluntary manslaughter and carrying a handgun
without a license. The victims statement to a paramedic at the scene
of the crime that Beverly shot him was properly admitted as a dying
declaration where the victim suffered a single gunshot wound to the back of
his head while driving his car and was slumped over and in a
decreased state of consciousness. Furthermore, the deputies had reasonable suspicion to stop
Beverly because several people called 911 with generally the same information about the
shootings, thereby corroborating each other. Lastly, the evidence is sufficient to support
Beverlys conviction for voluntary manslaughter because he fired shots at the victims car
while engaged in a high speed chase, retrieved a second gun when his
first gun ran out of bullets, and then fired more shots, this time
shooting the victim in the back of the head.
Facts and Procedural History
The facts most favorable to the verdict reveal that on November 9, 2001,
Beverly pulled his gold GMC Yukon into the parking lot of the Creekwood
Apartments on the northwest side of Indianapolis, where he lived off and on
with his girlfriend. As Beverly walked away from his Yukon, a blue-gray
older model Oldsmobile, driven by Tony Robinson, pulled in behind it. Although
the facts are unclear about what transpired next, it appears that a passenger
in Robinsons Oldsmobile, who was never identified, exited the Oldsmobile, and shots were
exchanged between the unidentified passenger and Beverly. As the unidentified passenger started
running away, Beverly fired two more shots in his direction. Robinson then
sped off in his Oldsmobile, and Beverly jumped into his Yukon and followed
After exiting the apartment complex, Beverly chased Robinson south on Michigan Road.
Joseph Gianforte, a motorist traveling southbound on Michigan Road at the same time,
heard popping noises and then observed a golden-colored SUV closely following an old
looking car. Tr. p. 202. As the cars passed him, Gianforte
saw the driver of the SUV hanging out of his drivers side window
holding a gun and firing it at the older car. Tr. p.
203. Charles Smith was also traveling southbound on Michigan Road around the
same time when he heard three pops. Tr. p. 184. He
then heard a single pop to his left as a [b]lond or brown
SUV passed him. Tr. p. 185. After the SUV passed him,
Smith observed the driver of the SUV leaning or hanging out the window.
Tr. p. 186.
Anthony Smith, Jr., who knew Beverly from high school, was driving north on
Michigan Road in his Chevrolet Caprice when he saw Beverly driving south in
his Yukon. Beverly waved to Anthony, so Anthony followed him. Anthony
eventually pulled his Caprice alongside Beverlys Yukon as both cars were traveling southbound
on Michigan Road, and Beverly asked Anthony if he had his gun with
him. Anthony then passed his revolver to Beverly through the car windows.
Anthony stopped at a gas station, and Beverly drove on.
Thereafter, witnesses observed the Oldsmobile driven by Robinson, which was being pursued by
another car, collide with a third car at the intersection of Michigan Road
and Kessler Boulevard. Robinson then crashed into two other cars and landed
in a ditch. Witnesses also saw a gold SUV in the vicinity
of the crash.
Beverly eventually returned to the gas station where Anthony was waiting, exited his
Yukon, and entered Anthonys Caprice. Beverly then instructed Anthony to drive to
a certain spot on Michigan Road, where Anthony observed a car with bullet
holes in the rear windshield in the ditch. After Beverly confirmed that
Robinson was still in the car, Anthony drove him back to the gas
station where he left his Yukon. After Beverly exited Anthonys car, Anthony
observed two guns on the seat, the one he had given Beverly and
Thomas Adams, a firefighter/paramedic with the Washington Township Fire Department, arrived at the
intersection of Michigan Road and Kessler Boulevard and discovered Robinson slumped over in
his car. Adams asked Robinson, who was in a decreased state of
consciousness and lethargic, if he had been shot. Tr. p. 395.
When Robinson did not respond, Adams more forcefully asked, Who shot you?
Tr. p. 397. This time, Robinson responded, Jerry shot me. Tr.
p. 397. As Adams was removing Robinson from his car, he noticed
a gunshot wound to the back of Robinsons head. Robinson was then
taken to the hospital, where he died the next day from the gunshot
Marion County Sheriffs Deputies Debora Oatis and Dennis Nike received a dispatch of
a shots fired call involving a gold, full-size SUV driven by a light-skinned
black male that was in the vicinity of Michigan Road and 71st Street.
Tr. p. 283. Specifically, dispatch had received numerous phone calls over
a matter of maybe five or six minutes saying that this vehicle was
driving up and down Michigan Road shooting, and dispatch had relayed that information
to the deputies. Tr. p. 284. When Deputies Oatis and Nike
arrived at Michigan Road and 71st Street, they observed a gold SUV pull
into a gas station and stopped it. Beverly then jumped out of
his Yukon and started walking toward the deputies yelling and waving his arms.
Tr. p. 290. Beverly stated that someone was trying to kill
his girlfriend. . . . Theyre shooting at her. Tr. p.
291. Eventually, the deputies handcuffed Beverly. When Sergeant Scott Scales from
the Marion County Sheriffs Department arrived on the scene, he read Beverly his
Miranda rights and then questioned him. Beverly told Sergeant Scales that somebody
tried to carjack him. There was a chase that ensued. They
shot at him[.] Tr. p. 250. Beverly also explained that his
friend gave him a gun, and then he fired the gun at the
other vehicle and returned it to his friend.
The State subsequently charged Beverly with murder and carrying a handgun without a
license as a Class C felony. Before trial, Beverly filed a motion
to suppress the statements he made to the deputies during the investigatory stop
and a motion in limine to exclude Robinsons statement to the paramedic that
Beverly had shot him. After a hearing, the trial court denied both
motions. After a bench trial, the trial court found Beverly guilty of
Voluntary Manslaughter as a Class A felony
See footnote as a lesser-included offense of murder
and Carrying a Handgun Without a License as a Class C felonySee footnote and
sentenced him to an aggregate sentence of forty years with five years suspended.
This appeal ensued.
Discussion and Decision
Beverly appeals his convictions raising three issues. First, he contends that the
trial court erred in admitting Robinsons statement to the paramedic into evidence because
it constitutes inadmissible hearsay. Second, Beverly contends that the trial court erred
in admitting the statements he made to deputies during the investigatory stop into
evidence because the deputies did not have reasonable suspicion to stop him in
the first instance. Third, Beverly contends that the evidence is insufficient to
support his conviction for voluntary manslaughter because he did not knowingly or intentionally
kill Robinson. We address each issue in turn.
Beverly contends that the trial court erred in admitting Robinsons statement to the
paramedic that Jerry shot me into evidence because it constitutes inadmissible hearsay.
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). Hearsay is generally not admissible
at trial. Evid. R. 802. Because Robinsons statement was offered to
prove that Beverly shot him, it constitutes hearsay and is therefore inadmissible unless
it falls under an exception to the hearsay rule.
Here, at the hearing on Beverlys motion in limine, the State argued that
Robinsons statement was admissible either as a dying declaration pursuant to Indiana Evidence
Rule 804(b)(2), an excited utterance pursuant to Rule 803(2), or a statement for
purposes of medical diagnosis or treatment pursuant to Rule 803(4). The trial
court ultimately denied the motion in limine because it found that Robinsons statement
qualified as one for purposes of medical diagnosis or treatment. However, the
trial court did not state whether the two other exceptions applied as well.
On appeal, Beverly argues that Robinsons statement does not qualify as a
statement for purposes of medical diagnosis or treatment. The State apparently concedes
this point and instead argues that Robinsons statement is admissible as a dying
See footnote We first examine whether Robinsons statement qualifies as one for purposes
of medical diagnosis or treatment.
In order for a hearsay statement to be admissible as a statement made
for purposes of medical diagnosis or treatment, the following elements must be established:
(1) it must be made for the purpose of medical diagnosis or
treatment; (2) it must describe medical history, symptoms, pain, sensations, or the
inception or general character of the cause or external source; and (3) it
must be reasonably pertinent to diagnosis or treatment. Ind. Evidence Rule 803(4);
Nash v. State, 754 N.E.2d 1021, 1023 (Ind. Ct. App. 2001), trans. denied.
Hearsay is admitted under this exception because the reliability of the out-of-court
statement is assured based upon the belief that the declarants self-interest in seeking
medical treatment renders it unlikely that he will mislead the person that he
wants to treat him. Id. The underlying rationale for this hearsay
exception requires a two-step analysis for evaluating whether a statement is properly admitted
pursuant to Rule 803(4): (1) whether the declarant is motivated to provide
truthful information in order to promote diagnosis and treatment; and (2) whether the
content of the statement is such that an expert in the field would
reasonably rely upon it in rendering diagnosis or treatment. Id. at 1023-24.
As for the second step, hearsay statements admissible for the purpose of
medical diagnosis or treatment typically do not involve statements of identity because identity
of the person responsible for the injury is usually not necessary to provide
effective medical care. Id. at 1024. Although there are exceptions to
this general rule, such as where injury occurs as the result of domestic
violence, see id. at 1025, none of them apply to the facts of
this case. Robinsons statement does not qualify as a statement for purposes
of medical diagnosis or treatment. However, we will only reverse a trial
courts hearsay ruling for an abuse of discretion, and we will affirm the
ruling on any legal basis apparent in the record. Ross v. State,
676 N.E.2d 339, 345 (Ind. 1996); Jones v. State, No. 67A01-0303-CR-86 (Ind. Ct.
App. Dec. 19, 2003). We now proceed to determine whether Robinsons statement
qualifies as a dying declaration.
Indiana Evidence Rule 804(b)(2) provides, The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness: . . . A
statement made by a declarant while believing that the declarants death was imminent,
concerning the cause or circumstances of what the declarant believed to be impending
death. The two reasons typically given for admitting such statements into evidence
are: (1) to bring to justice murderers who otherwise might escape the
penalty of the law because the victims of their crimes are not available
to testify; and (2) the dying declaration is reliable because of the belief
that a person about to die is less likely to fabricate the guilt
of an innocent person than one who would stand to derive some benefit
from his falsehood. Ferdinand S. Tinio, Annotation, Sufficiency of Showing of Consciousness
of Impending Death, by Circumstances Other Than Statements of Declarant, to Justify Admission
of Dying Declaration, 53 A.L.R.3d 1196, 1201 (1973). Since the Indiana Rules
of Evidence were adopted in 1994, there have been no cases substantively addressing
this exception to the hearsay rule. We turn to pre-Indiana Rules of
Evidence cases for guidance.
Under the dying declaration exception, the fact that a victim ultimately dies from
her injuries does not make her statement admissible; rather, the victim must have
known that death was imminent and abandoned all hope of recovery. Anderson
v. State, 471 N.E.2d 291, 292 (Ind. 1984). In Anderson, the defendant
stabbed the victim in her side and took her purse. The victim,
who eventually died from the knife wound, told eyewitnesses that two men took
her purse. She also told eyewitnesses that she was all right and
did not need an ambulance. At trial, the trial court permitted the
eyewitnesses to testify that the victim told them that two men had taken
her purse. Because of the victims statements that she was all right
and did not need an ambulance, the supreme court concluded that her statements
did not fall within the dying declaration exception. Id. Furthermore, in
order to prove that the victim knew that death was imminent and had
abandoned all hope of recovery, we can resort to the general statements, conduct,
manner, symptoms, and condition of the declarant, which flow as the reasonable and
natural results from the extent and character of his wound, or state of
his illness. Williams v. State, 168 Ind. 87, 79 N.E. 1079, 1081
(1907), superseded on other grounds by rule as stated in Jackson v. State,
712 N.E.2d 986 (Ind. 1999); see also Gipe v. State, 165 Ind. 433,
75 N.E. 881, 882 (1905) ([I]f a dying person either declare[s] that he
knows his danger, or it is reasonably to be inferred from the wound
or state of illness that he was sensible of his danger, the declarations
are good evidence. That the character of the wound may of itself
warrant the inference that the declarant was under a sense of certain and
speedy death is settled upon the authorities[.]) (quotation omitted).
Here, the evidence shows that Robinson suffered a single gunshot wound to the
back of his head while driving his car and collided with three cars
before coming to rest in a ditch. When paramedic Adams came to
his aid minutes later, Robinson was slumped over, looked like he was asleep,
was lethargic, and was in a decreased state of consciousness. Consequently, Adams
questioning of Robinson had to be kind of forceful in nature to elicit
responses. Tr. p. 395. Robinson was then taken to the hospital,
where he died from the gunshot wound the next day. It can
be inferred from the nature of the gunshot wound and his decreased level
of consciousness that Robinson knew death was imminent and had abandoned all hope
of recovery. Robinsons statement concerning the circumstances of his impending death was
admissible as a dying declaration pursuant to Indiana Evidence Rule 804(b)(2).
See footnote The
trial court did not abuse its discretion in admitting Robinsons statement into evidence.
II. Reasonable Suspicion
Beverly next contends that the various 911 calls that shots were being fired
from a gold SUV driven by a black male at a particular location
did not give the deputies reasonable suspicion to conduct an investigatory stop of
him because there was no way to test the anonymous callers reliability, Appellants
Br. p. 12; therefore, the trial court erred in admitting the statements he
made to deputies during the investigatory stop into evidence.
See footnote A trial court
has broad discretion in ruling on the admissibility of evidence, and we will
disturb its ruling only where it is shown that the trial court abused
Ware v. State, 782 N.E.2d 478, 481 (Ind. Ct. App.
2003), rehg denied.
The Fourth Amendment to the United States Constitution provides, in pertinent part:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated. U.S.
CONST. amend. IV. Pursuant to the Fourteenth Amendment of the United
States Constitution, individual states must provide their citizens with the protections afforded by
the Fourth Amendment.
State v. Eichholtz, 752 N.E.2d 163, 165 (Ind. Ct.
The United States Supreme Court created an exception to the Fourth Amendments requirement
that a police officer have probable cause or a warrant before stopping a
person in Terry v. Ohio, 392 U.S. 1 (1968). Pursuant to Terry,
a police officer may briefly detain a person for investigational purposes if the
officer has reasonable suspicion, based on specific and articulable facts, that criminal activity
may be afoot. Id. at 30. Reasonable suspicion consists of
a minimal level of objective justification for making a stop that is more
than an inchoate and unparticularized suspicion or hunch. Eichholtz, 752 N.E.2d at
165 (quotations omitted). Whether the officers suspicion was reasonable is determined on
a case-by-case basis by engaging in a fact-sensitive analysis of the totality of
the circumstances. Id.
As a general rule, an anonymous tip alone is not likely to constitute
the reasonable suspicion necessary for a valid Terry stop. Lampkins v. State,
682 N.E.2d 1268, 1271 (Ind. 1997) (citing Alabama v. White, 496 U.S. 325,
329-330 (1990)), modified on rehg on other grounds, 685 N.E.2d 698 (Ind. 1997).
However, there are situations in which an anonymous tip, suitably corroborated, exhibits
sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.
Florida v. J.L., 529 U.S. 266, 270 (2000) (quotation omitted). Specifically,
[A]n anonymous telephone tip, absent any independent indicia of reliability or any officer-observed
confirmation of the callers prediction of the defendants future behavior, is not enough
to permit police to detain a citizen and subject him or her to
a Terry stop and the attendant interruption of liberty required to accomplish it.
Washington v. State, 740 N.E.2d 1241, 1246 (Ind. Ct. App. 2000), trans. denied.
Beverly, who does not dispute this authority, contends that Berry v. State,
766 N.E.2d 805 (Ind. Ct. App. 2002), trans. denied, controls the present case.
Sufficiency of the Evidence
In Berry, a Marion County Sheriffs Deputy was dispatched to a Burger King
due to a reported disturbance. An anonymous caller reported to the dispatcher
that a suspect had produced a firearm and had waved it around in
the parking lot. The caller also reported that the suspect had told
individuals before he left the parking lot that he was going to cap
someone. Id. at 806. The caller described the suspect as a
white male in a green jacket driving an S10 Blazer and provided a
partial license plate number. Minutes later and approximately six blocks away from
the Burger King, the deputy pulled over an S10 Blazer, which had six
out of seven matching numbers on the license plate, driven by Berry.
On appeal, this Court held that the deputy improperly stopped Berry because
the stop was based solely on an anonymous tip that lacked sufficient indicia
of reliability. Id. at 810. Specifically, the deputy did not observe
any activity that would have provided an independent basis or reasonable suspicion for
stopping Berry. Id. Additionally, the anonymous caller failed to provide any
predictions of Berrys future behavior that would establish that he or she had
inside knowledge of Berrys affairs. Id.
The present case is readily distinguishable from Berry. Here, Deputies Oatis and
Nike received reports from dispatch that a gold, full-size SUV driven by a
black male was involved in a shooting and was near Michigan Road and
71st Street. Tr. p. 284. Dispatch broadcasted these reports based on
numerous 911 calls that had been made within five or six minutes reporting
that the SUV was driving up and down Michigan Road shooting. Tr.
p. 284; see also Tr. p. 33. Although Deputies Oatis and Nike
did not hear the actual 911 calls, they heard the information that dispatch
broadcasted concerning those calls. Deputy Oatis explained the following at the suppression
[Deputy Nike and I] received in a matter of probably five, six minutes
or so, we received probably ten or twelve updates where a different dispatcher,
they were getting a phone call and they would hit in and say
report of shots fired. One time it was southbound on Michigan Road
from 71st, one time it was northbound on Michigan Road, eastbound on Westlane
from Michigan Road, southbound on Township Line, they were just all over in
the general area of 71st and Michigan.
Tr. p. 16.
Unlike Berry, where there was a single anonymous caller, here several people called
911 concerning shots being fired from a specific car at a specific location.
Although the deputies did not observe any activity that would have provided
an independent basis or reasonable suspicion for stopping Beverly and the callers failed
to provide any predictions of Beverlys future behavior, the calls bear independent indicia
of reliability because they corroborate each other in regards to the fact that
shots were being fired and to the general description of the car, driver,
and their location.
See United States v. Schaefer, 87 F.3d 562, 566
(1st Cir. 1996) (Courts often have held that consistency between the reports of
two independent informants helps to validate both accounts.). Because Deputies Oatis and
Nike had reasonable suspicion to stop Beverly, the trial court did not abuse
its discretion in admitting Beverlys statements to the deputies during the investigatory stop
Lastly, Beverly contends that the evidence is insufficient to support his conviction for
voluntary manslaughter. When reviewing the sufficiency of the evidence, we neither reweigh
the evidence nor judge witness credibility. Walgamuth v. State, 779 N.E.2d 533,
536 (Ind. Ct. App. 2002), rehg denied, trans. denied. Instead, we examine
only the evidence most favorable to the judgment together with the reasonable inferences
to be drawn therefrom. Id. We will affirm if there is
substantial evidence of probative value to support the conclusion of the trier of
fact. Johnson v. State, 785 N.E.2d 1134, 1141 (Ind. Ct. App. 2003),
To convict Beverly of voluntary manslaughter as a Class A felony in this
case, the State must have proved that Beverly knowingly or intentionally killed Robinson
while acting under sudden heat and by means of a deadly weapon.
Ind. Code § 35-42-1-3(a)(2). On appeal, Beverly argues that the State failed
to prove that he acted knowingly or intentionally. Instead, Beverly proposes that
[i]t could only have been bad luck that [he], driving at a high
rate of speed, hanging out a window, could have fired a shot that
penetrated Robinson in the back of his head. Appellants Br. p. 16.
Here, the evidence shows that Beverly exchanged gunfire with an unidentified passenger in
Robinsons car in the parking lot of Creekwood Apartments, chased Robinson down Michigan
Road, and fired shots at Robinsons car while leaning out his car window.
And when Beverlys gun ran out of bullets, he stopped a high
school friend, borrowed his gun, and fired more shots at Robinsons car, this
time shooting Robinson in the back of the head. The trial court
did not err in concluding that Beverlys conduct was not bad luck but
instead constituted a knowing or intentional killing of Robinson. Beverlys argument is
simply an invitation for this Court to reweigh the evidence, which we cannot
do. The evidence is sufficient to support Beverlys conviction for voluntary manslaughter.
BAILEY, J., concurs.
KIRSCH, J., dissents with separate opinion.
COURT OF APPEALS OF INDIANA
JEREMIAH BEVERLY, )
vs. ) No. 49A02-0304-CR-298
STATE OF INDIANA. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant Hawkins, Judge
Cause No. 49G05-0111-CF-216204
KIRSCH, Judge, dissenting
I respectfully dissent from the decision of the majority holding that the statement
made by the victim to the paramedic (Jerry shot me) is admissible as
a dying declaration as a matter of law because I do not believe
that the evidence here leads solely to the conclusion that the victim knew
that death was imminent and had abandoned all hope of recovery. I
believe the majority impermissibly invades the province of the trial court in making
what I believe is a factual determination.
Ind. Code § 35-42-1-3(a)(2).
Ind. Code §§ 35-47-2-1(a), -23(c)(2).
Footnote: Although the State argued before the trial court that the statement
was admissible as an excited utterance, it does not advance this argument on
appeal; therefore, we do not address this exception.
Footnote: The fact that the record reveals that Robinson may have briefly
stabilized once arriving at the hospital does not impact our decision as those
are acts subsequent to Robinsons dying declaration.
Footnote: Although Beverly frames his argument as the trial court erred in
denying his motion to suppress, the real issue is whether the trial court
erred in admitting his statements into evidence at trial.
See Washington v.
State, 784 N.E.2d 584, 586 (Ind. Ct. App. 2003).
Although Beverly also challenges the investigatory stop under Article I, §
11 of the Indiana Constitution, [w]e have interpreted the protections provided by Article
I, § 11 of the Indiana Constitution regarding investigatory stops to be consistent
with federal interpretation of protections provided by the Fourth Amendment to the United
Washington v. State, 740 N.E.2d 1241, 1246 (Ind. Ct. App.
2000), trans. denied.
We listened to States Exhibit 52, which is a copy of
the 911 calls made concerning the shootings and car accident. Specifically, the
tape contains twelve calls, five of which address the shootings. Of those
five calls, one person gave his name and location from which he was
calling and another person gave the location from which she was calling but
no name. However, neither of these two people witnessed the shootings; rather,
they were instructed by other people to call 911. Two of the
remaining three callers gave general personal identifying information but nothing specific such as
name or location from which they were calling. We observe that the
fact that the callers did not give more specific personal identifying information is
more a product of not being asked by the 911 operators as opposed
to intentionally withholding such information. Given the unique facts of this case,
we do not decide whether any of these callers would not be considered
anonymous because they identified [themselves] to the 9-1-1 operator in such a manner
that [they] could be held legally responsible if the deputies investigation revealed that
they filed a false police report.
Eichholtz, 752 N.E.2d at 167 (citing
Ind. Code § 35-44-2-2).