ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
LORRAINE L. RODTS JODI KATHRYN STEIN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
ROGER DAVIS, ) ) Appellant-Defendant, ) ) vs. ) No. 52A02-0108-CR-538 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
(Appellants App. p. 338). Miller identified Davis as one (1) of the
individuals that he saw alongside the road.
Minutes later, Jack Kling (Jack) arrived home with his wife, Stella Kling (Stella). Before Jack pulled into his driveway, he saw Miller. Miller told Jack about the two (2) men and the red car. Subsequently, Jack noticed that the back door to his house was open. He testified, I know for a fact that it was shut when I left and it was locked. (Appellants App. p. 303). Jack then called the sheriffs department to report that someone had broken into his house. As Stella watched for the police, Jack drove around the block to look for the red car. When Jack came back to his house, Stella saw the red car and alerted him. Jack then took off after the red car. A chase ensued; however, Jack eventually lost sight of the red car. Jack could see that there were two (2) people in the red car.
As Jack chased after the red car, he was on his cellular phone with the sheriffs department, explaining his route. Even though Jack lost sight of the red car, Officer Gary Glassburn (Glassburn) of the Miami County Sheriffs Department attempted to intercept the chase route. Glassburn was unable to intercept the red car; however, at some point in his search, he came across Davis, who was walking alongside a county road. Davis told Glassburn that he was walking home from a friends house in Wabash and became disoriented and lost. Davis denied knowing anything about a red car or criminal activity to Glassburn.
On September 9, 1998, the State filed an information against Davis, charging him with two (2) counts of burglary. Count 1 involved the Kling burglary. Count 2 involved an unrelated burglary. On February 8, 2000, the trial court granted Davis motion to sever the offenses. On February 8-9, 2000, a jury trial was held on Count 1. The jury was unable to reach a verdict. Thus, the trial court declared a mistrial and reset the cause for trial on April 10, 2000. On April 10, 2000, Davis second trial on Count 1 was declared a mistrial due to a bomb threat that caused the courthouse to be evacuated.
On May 21-22, 2001, a jury trial was held on Count 1. At trial, Jason Autry (Autry) and James Walsh (Walsh), Davis accomplices in the Kling burglary, testified against Davis pursuant to plea agreements. Both men testified that Davis took part in the Kling burglary. Autry and Walsh testified that Davis drove around in a red car while they broke into the Klings home; Davis picked up Walsh when the burglary was complete. Autry testified that after Davis and Walsh drove away, he went down the creek a little ways, stayed up on the bank for a while til it got dark, cut through a bean field, knocked on a ladys door and asked her if I could use the phone. (Appellants App. p. 385). Eventually, someone picked up Autry from the womans home.
On May 22, 2001, the jury found Davis guilty of burglary. On June 20, 2001, a sentencing hearing was held. At the hearing, the State requested restitution, stating as follows:
I would urge the Court to impose a fine of $10,000 and suspend that fine on condition that he be ordered to pay restitution to [Jack] in the amount of $1500.00. $500 was for his deductible on the insurance and $1000 of lost wages and that judgment be entered in favor of [Jack] for [inaudible] code 35-55-1 and following and also recommend that the Court likewise impose that fine of $10,000 and suspend that on condition that he also pay to the Illinois Farmers Insurance Company the sum of $2901.94 and that judgment again n [sic] be entered pursuant to the same statute in their favor. And uh , would ask the Court to order periodic payments to where that can be monitored. Appear that [Davis] says he has the ability to pay I think he should be ordered to pay.
(Appellants App. p. 527). The trial court sentenced Davis to the Indiana
Department of Correction for a period of ten (10) years, with five (5)
years suspended and placed on probation. Additionally, Davis was ordered to pay
restitution, $2,901.94 to Illinois Farmers Insurance Company, and $1,500.00 to Jack.
Davis now appeals. Additional facts will be supplied as necessary.
A A clean up statement, yeah.
Q And specifically mentioning [Davis], isnt that right?
A Thats just who was there with me.
Q Well, now you
, while you were in jail, af
, after this date you
communicated with [Walsh], isnt that right?
A Huh? After what day?
Q Back in May
, back in May of 1998 you were in contact with
[Walsh] by correspondence isnt that right?
A Couple [of] time[s][,] yeah.
Q Okay. And in fact you wrote him about your deal, isnt that?
A Who Walsh?
Q And you communicated with [Walsh] at some point in time.
A Its more like he communicated with me.
Q Well you wrote him back.
, all right. Well let me ask you this, did you ever
tell [Walsh] that you need to get your stories straight about [Davis]?
A No I never said that to him.
Q You go by any nicknames?
Q Does anyone call you J?
Q You ever sign any of your letters J?
BY MR. SIDERS [the State]: I dont think Ive received this.
BY MR. SMITH [defense counsel]: No, well its for [inaudible].
Q Show you whats marked Defense Exhibit A, thats
, have you seen that
BY MR. SIDERS: Your Honor approach?
(Appellants App. pp. 390-91) (emphasis supplied). After the bench conference, defense counsel did not attempt to question Autry about Defendants Exhibit A, nor did defense counsel attempt to have Autry identify the exhibit.
Additionally, the following exchange took place between Davis counsel and Walsh:
Q Okay and did you have communications with [Autry] during the time you were incarcerated?
A Yes I did.
Q And how, what kind of communications did you have with him?
A Through the mail.
Q And what was your, uh
, did you discuss the Kling case with him?
A Not actually discuss it.
Q Well in writing?
A Yes he wrote me a letter concerning it one time.
Q Okay when was that?
A I dont recall. I sent it to you.
Q How many times did you correspond by letter with [Autry]?
A I dont know about
I dont recall, it was a lot.
Q Would you be familiar with his handwriting if you received a letter from
A Yes I would.
Q Did he go by any nicknames?
Q What was the substance of the communications that you had with him about
the Kling burglary?
BY MR. SIDERS: Your Honor we object. This is hearsay.
A I have
I dont remember.
BY MR. SIDERS: Your Honor I object to hearsay.
BY THE COURT: Sustained.
BY MR. SIDERS: Is this what youre hunting for?
BY THE COURT: No I dont have it I think he took
it back to the
BY MR. SMITH: Show you whats been marked
BY MR. SIDERS: Your Honor, object to hearsay.
BY THE COURT: Approach.
BY MR. SIDERS: Your Honor ask that the jury be admonished to disregard [inaudible]
BY THE COURT: Well it hasnt been introduced. They dont know the substance of it. [Inaudible] of the Court is sustaining an objection to the introduction of the document Mr. Smith was offering. Joyce.
Q Did you write any letters to [Autry] regarding the Kling burglary?
A Just to tell him that I wont lie.
(Appellants App. pp. 417-18) (emphasis supplied). Defense counsel thereafter did not attempt to question Walsh about Defendants Exhibit A, nor did defense counsel attempt to have Walsh identify the exhibit. See footnote
With the above in mind, Davis maintains that he was unable to effectively confront Autry and Walsh with proof of a vendetta against him. Because Defendants Exhibit A is part of the record on appeal, we know that the exhibit is a letter. The letter is not addressed to anyone other than Bro, and it is signed by Jay. (Appellants App. pp. 488-89). The letter discusses getting their stories straight about Davis so they can get his ass. (Appellants App. p. 488). While we are able to discern the substance of Defendants Exhibit A, the trial court was not. Consequently, we are unable to review this issue because Davis did not make an offer to prove, that is, an offer from counsel regarding what a witness would say if he was allowed to testify. Bradford v. State, 675 N.E.2d 296, 301 (Ind. 1996), rehg denied. The Rules of Evidence require that the substance of the evidence be made known to the trial court and that the offer to prove identify the grounds for admission and the relevance of the testimony. Noble v. State, 725 N.E.2d 842, 846 (Ind. 2000).
Here, Davis counsel made no offer of proof, and the context does not enable us to know whether Autry and/or Walsh would have been able to identify Defendants Exhibit A.
Furthermore, Davis counsel did not indicate to the trial court the substance of the exhibit. Thus, aside from implications in defense counsels questions, the trial court was not apprised of what Autry and/or Davis would have testified to, had Defendants Exhibit A been admitted into evidence. As such, the issue is waived. Id.
At Davis sentencing hearing, Jack testified that everyday he was in court he
lost $200.00. Moreover, Jack acknowledged that he had been in court for
this matter, at least, four (4) or five (5) times. As a
result of Jacks testimony and the States request, Davis was ordered to pay
Jack restitution in the amount of $1,000.00 for lost wages.
Davis failed to object to the trial courts restitution order at sentencing. In fact, Davis counsel stated, in pertinent part, as follows:
Uh , also if the Court finds that restitution need be made by [Davis] thatll will [sic] be detrimental to [Jack] and to the insurance company by his extended period of his incarceration that those payments would be unable to be made as far as the payments to [Jack] for his lost wages. I do sympathize with him for having to have to appear here in Court several times. Judge and while the Court has pointed out that defense has found [sic] motions to Continue they were either part of the pre-trial conference, some of the trial as well. And I would also point out that the State continued on a couple of occasion[s] or the defense agreed.
BY THE COURT: No I think the State agreed to a Defense
Motion on a couple of occasions. I find actually I counted wrong
there were six of those Motions by the Defense.
BY MR. SMITH: Okay Mr. Siders was ill one day and I
think there was one other time and also I cant uh
, penalize [Davis]
for that. There was a Hung Jury and he had to come
back another time and then
I would just
Im just pointing out Judge that it
wasnt all the delay by the defense wasnt by the Defendant in the
beginning that a continued Pre-Trial conference I dont, but that be as it
may the Court has the docket sheet there uh
, in light of all
the factors that are involved here Judge. I think this is [a]
unique situation that will not occur again. There needs to be a
restitution made to the victim of the offense. There is a family
that will be torn apart and
and Judge Ive been a victim of a
burglary so I understand [Jack] and what he feels from it.
(Appellants App. pp. 529-30).
In Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000), trans. denied, this court held, in pertinent part, as follows:
When a defendant does not properly bring an objection to the trial court's attention so that the trial court may rule upon it at the appropriate time, he is deemed to have waived that possible error. Brown v. State, 587 N.E.2d 693, 703 (Ind. Ct. App. 1992); see also Kellett v. State, 716 N.E.2d 975, 980 (Ind. Ct. App. 1999) (holding that defendant waived error that ledger presented by the State to support restitution order contained mathematical errors and several duplicate charges, thereby rendering the amount of restitution greater than the actual expenses incurred; defendant failed to object to its admission at the sentencing hearing).
Accordingly, Davis has waived his claim of error.
VAIDIK, Judge, concurring in result.
I concur in affirming Davis conviction but write separately to impress upon proponents of excluded evidence their responsibility for making a proper record when the trial court neglects to do so. Indiana Evidence Rule 103(a)(2) relaxes the somewhat rigid specificity requirement of an offer to prove by merely requiring that the substance of the evidence . . . [be] apparent from the context within which the questions were asked. Although Rule 103 eases the proponents burden, the proponent must still provide enough information to the trial court to enable it to make an informed decision as to the evidences admissibility and to rectify any error in excluding the evidence. However, it is not enough that the proponent provides the trial court with the evidence or makes the substance of the evidence apparent from the context of the questions that were asked. The proponent must also assure that an adequate record is made for our review.
I disagree with the majority that the trial court was unable to discern the substance of Defendants Exhibit A. The exhibit was part of the record, and the trial judge sustained an objection to it. Given the context, a reasonable inference would be that the judge saw the letter and was aware of its substance. Nonetheless, the rules of evidence require not only that the substance of the evidence be made known to the trial court, but also that the offer to prove identify the grounds for admission and the relevance of the testimony. See Noble, 725 N.E.2d at 846.
The State objected to Defendants Exhibit A on hearsay grounds. However, defense counsel could have overcome the hearsay objection by explaining that the letter was not subject to exclusion under the hearsay rule because it was not being offered for the truth of the matter asserted, but rather, for impeachment purposes. Counsel has the obligation to alert the trial judge to the issue. Young v. Rabideau, 821 F.2d 373, 375-76 (7th Cir. 1987), cert. denied (positing that [t]he offer need not be formal, nor the error precisely specified . . . However, appellant needed to make the appropriate arguments to the district court . . . in order to alert the trial court to the issue.). The record shows that there was a conference at the bench immediately following each of the States objections to the exhibit; but it also reveals that the conferences were not made part of the record. Because the record fails to reveal the substance of any of the discussions that took place during the bench conferences, we are unable to determine whether defense counsel argued that the letter should be allowed to come in for impeachment purposes. While initially the burden lies with the trial court to ensure that all stages of the proceedings including bench conferences are recorded by the court reporter, see Ind. Code § 33-15-23-1 (declaring that the judge of each . . . court . . . shall appoint an official reporter, whose duty it shall be, whenever required by such judge, to be promptly present in said court, and to take down . . . the oral evidence given in all causes, including both questions and answers, and to note all rulings of the judge in respect to the admission and rejection of evidence and the objections and exceptions thereto . . . .); Indianapolis Life Ins. Co. v. Lundquist, 222 Ind. 359, 372-73, 53 N.E.2d 338, 343 (1944) (opining that [o]fficial court reporters are an arm of the court, charged with the duty of preserving a record of the evidence. . . .), when it is apparent that no such recording was made, it becomes the partys duty to supplement the record by verified statement so as to present this Court with a complete record with respect to the issues raised on appeal. See Ind. Appellate Rule 31 (providing a means to supplement the record by verified statement when no transcript is available for part or all of the evidence); Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998), rehg denied.
While Davis, as the party alleging error, had the duty to present this Court with a record that was complete with respect to the exclusion of Defendants Exhibit A, he failed to do so. Because there is no record of the bench conferences and, therefore, we have no way of determining what transpired during them specifically, whether Davis provided the trial court with an opportunity to understand the proposed impeachment use of the evidence and to correct any error it may have made by sustaining the States objection to the exhibit as hearsay I find that Davis waived the issue. Hence, I concur in result.