ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANN M. SUTTON STEVE CARTER
Marion County Public Defender Agency Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
This hearsay exception is based on the assumption that public officials perform their
duties properly and without motive or interest other than to submit accurate and
fair reports. Sparkman v. State, 722 N.E.2d 1259, 1263 (Ind. Ct. App.
2000). There is no question that IHA qualifies as a public agency
whose records may be admitted under this hearsay exception if its other requirements
Rule 803(8) governing public records does not contain several of the foundational requirements for business records found in Rule 803(6). For example, under Rule 803(6), the proponent of the documentary hearsay evidence must provide the testimony or affidavit of the custodian of the records, or another qualified person, that it was the practice of the business to create and keep the document in the regular course of business. Rule 803(8) requires no affidavit or testimony from a records custodian or other qualified witness. Thus, Baileys arguments that Detective Golden of the IHA police department was not the custodian of these records, or that he lacked personal knowledge of how their contents were created, are not applicable to Rule 803(8).
The trial court here admitted into evidence five documentary exhibits from the IHA to which Bailey objected. These five documents or records can be split into three different categories. The first of these are States Exhibits 1 and 2. These documents are Section 8 housing applications that Bailey completed in March of 2000 and March of 2001. Exhibit 2 is the application Bailey filled out in 2000, and it includes an addendum entitled Things You Should Know About Section 8 Housing. Among those is that I know I am required to report to the Section 8 Housing Specialist any changes in household composition or income within two weeks of when it occurred. Baileys initials appear next to this entry, and it is this condition that the State alleged Bailey violated. See footnote
Exhibits 1 and 2 clearly appear to be records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities . . . . Ind. Evidence Rule 803(8). Detective Golden, who has been employed by the IHA since 1996 and is familiar with its procedures, testified that these application forms are standard, required by Department of Housing and Urban Development (HUD) regulations, and once completed are stored in a locked secured facility. Tr. p. 10. Additionally, Bailey presents no argument that these exhibits bear any indicia of untrustworthiness; a person challenging the introduction of a public record bears the burden of demonstrating untrustworthiness. See Sparkman, 722 N.E.2d at 1263. We see no basis to conclude that Exhibits 1 and 2 fall outside the definition of an admissible public record under Rule 803(8).
Exhibits 6 and 7 fall into the same category as Exhibits 1 and 2. These exhibits are Annual Recertification Addendum notices from March 2000 and March 2001. They list the amount of housing and utility aid to which Bailey was entitled following the completion of her Section 8 housing application forms. Again, Detective Golden testified that these notices are standard HUD-required forms prepared by IHAs legal department in the regular course of its business, and which are stored in a secure location. We also are again presented with no argument that these forms bear any indicia of unreliability or untrustworthiness. Thus, it is evident that these forms, like Exhibits 1 and 2, are records or forms setting forth the IHAs regularly conducted and recorded activity. They were admissible under Rule 803(8).
Exhibit 3 is slightly different from the others. This exhibit is a computer log of all contact between IHA and Bailey and purports to contain records and brief descriptions of all contact initiated by IHA or Bailey relevant to her Section 8 housing. Thus, arguably this is not merely a form routinely generated by IHA to record its activities, but contains observations made by the agency and its personnel of its interactions with others. Unlike standard forms and records, Rule 803(8) only applies to such recorded observations if they were observed pursuant to duty imposed by law and as to which there was a duty to report . . . . Here, Detective Golden testified with respect to Exhibit 3 that IHA is required by HUD regulations to document any contact with persons receiving federally assisted housing. Tr. p. 19. Thus, it is clear from this testimony that IHA had a legal duty, imposed by HUD regulations, to record its observed interactions with Bailey. As such, Exhibit 3, which is a documentation of all contact between IHA and Bailey as required by law, is admissible under Rule 803(8). See footnote
Bailey briefly contends that the challenged exhibits were inadmissible under Rule 803(8)(b) because they were investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party . . . . This court has adopted a three-part test for determining whether a record of a public agency constitutes an investigative report: 1) whether the report contains findings which address a materially contested issue in the case; 2) whether the record or report contains factual findings; and 3) whether the report was prepared for advocacy purposes or in anticipation of litigation. Shepherd v. State, 690 N.E.2d 318, 326 (Ind. Ct. App. 1997), trans. denied (1998) (citing Ealy v. State, 685 N.E.2d 1047, 1054 (Ind. 1997)). See footnote If a public agency record was not prepared for advocacy purposes or in anticipation of litigation, then the evidence is admissible. Ealy, 685 N.E.2d at 1054. Here, Bailey has not demonstrated that any of the IHA reports or documents she challenges were prepared for advocacy purposes or in anticipation of litigation. Thus, none of them fall within the definition of an investigative report and, therefore, they were admissible.