William Hedrick v. State of Indiana ( 2019 )

FILED
OPINION ON REHEARING
Sep 12 2019, 9:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Hedrick, September 12, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1945
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Linda Ralu Wolf,
Appellee-Plaintiff. Judge
Trial Court Cause No.
18C03-1501-F6-1
Riley, Judge.
Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019 Page 1 of 9
[1] This case is before us on a petition for rehearing filed by Appellant-Defendant,
William Hedrick, M.D., (Hedrick). The Appellee-Plaintiff, the State, has not
filed a responsive brief. Hedrick appealed his convictions for three Counts of
Level 6 felony forgery and three Counts of Level 6 felony registration offenses.
Hedrick v State, 124 N.E. 3d 1273 (Ind. Ct. App. 2019). For the forgery offenses,
the State alleged that Hedrick had used the name and suspended DEA
registration number of nurse practitioner Gay Watson to fill three separate
prescriptions. For the registration offenses, the State alleged that Hedrick had
knowingly or intentionally distributed controlled substances with a federal or
state registration number “that is fictitious, revoked, suspended or issued to
another person.” Id. The issues we addressed on appeal were: (1) Whether the
trial court erred by admitting certain evidence; (2) Whether the State presented
sufficient evidence beyond a reasonable doubt to support Hedrick’s convictions;
and (3) Whether the three forgery convictions violated the continuous crime
doctrine. We affirmed.
[2] In our original opinion we stated that Hedrick had failed to object to the DEA
Agent’s deposition testimony; thus, he had waived his claim for appellate
review. We stated:
At Hedrick’s trial, a DEA agent testified that after Hedrick’s
license had been placed on probation, the DEA began receiving
complaints pertaining to Hedrick’s practice. When asked to
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describe the complaints, Hedrick’s counsel interjected and stated,
“Objection for hearsay purposes. Go ahead.” (Tr. Vol. II, p.
128). The trial court did not issue a ruling on Hedrick’s
objection, and the DEA agent proceeded to testify as follows:
The complaints focused primarily on the concerns that the
local pharmacies had regarding the total number of
prescriptions being, controlled substance prescriptions
being prescribed out of his business entity, his medical
practice, by him and his employees and the dangerous
combinations of controlled substances being prescribed.
(Tr. Vol. II, p. 128). While it appears from the above excerpt that
Hedrick objected to the evidence, he did not give the trial court
the opportunity to evaluate the purpose of the statements which
he now alleges to be inadmissible hearsay or to consider the
applicability of exceptions to the hearsay rule. The failure to
object at trial waives any claim of error and allows otherwise
inadmissible hearsay evidence to be considered for substantive
purposes. Scott v. State, 803 N.E.2d 1231, 1238 (Ind. Ct. App.
2004). Accordingly, Hedrick waives this issue for appellate
review.
Id. at 1279.
[3] In his petition for rehearing, Hedrick claims that we erroneously stated that he
failed to object to the DEA Agent’s hearsay testimony offered at his trial.
Hedrick argues that the DEA Agent’s testimony was offered through a video
deposition and we erroneously stated that the testimony was offered in open
court. Hedrick also correctly argues that he did not waive his hearsay claim on
appeal since he issued a continuing objection to the DEA Agent’s deposition
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testimony at his pretrial hearing and prior to its publication at his trial. The
trial court overruled all of Hedrick’s objections.
[4] Because Hedrick objected to the admission of the DEA Agent’s deposition
testimony on hearsay grounds, he therefore did not waive his hearsay claim for
appellate review. Therefore, we grant his petition for rehearing to correct those
errors in our original opinion. However, we find that in applying the harmless
error analysis to the DEA Agent’s deposition testimony and paired with the fact
that there was enough evidence presented by the State to sustain Hedrick’s
convictions, we reaffirm our original opinion in all other respects.
I. The DEA Agent’s Deposition
[5] The admission or exclusion of evidence falls within the sound discretion of the
trial court, and its determination regarding the admissibility of evidence is
reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d
1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).
Hearsay is an out-of-court statement offered for “the truth of the matter
asserted,” and it is generally not admissible as evidence. Ind. Evidence Rules
801(c)(2), 802. “Whether a statement is hearsay will most often hinge on the
purpose for which it is offered.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)
(quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)).
[6] In our original opinion, we stated:
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In the Fall of 2014, Hedrick was the target of a criminal
investigation by the DEA after local pharmacies in Muncie
reported Hedrick’s practice. Specifically, the pharmacies
informed the DEA that the total volume of “controlled substance
prescriptions being prescribed out of [Hedrick’s] . . . medical
practice” was alarming. The pharmacies indicated that Hedrick’s
clinic was prescribing “dangerous combinations of controlled
substances,” i.e., “narcotics . . . with anti-depressant.” Some
other pharmacies had altogether stopped filling prescriptions
from Hedrick and his practice. Following those complaints, the
DEA conducted surveillance of Hedrick’s practice in Muncie in
August and October of 2014.
Hedrick, 124 N.E.3d at 1278 (internal citations omitted).
[7] At Hedrick’s trial, the State explained that the DEA agent’s deposition
testimony related to “why the DEA was investigating [] Hedrick’s practice.”
(Tr. Vol. II, p. 15). Out-of-court statements made to law enforcement officers
are not hearsay if introduced primarily to explain why the investigation
proceeded as it did. Blount, 22 N.E.3d at 565. Course-of-investigation
testimony is excluded from hearsay only for the limited purpose of bridging
gaps in the trial testimony that would otherwise substantially confuse or
mislead the jury. Id.
For this reason, we must pay careful attention to the purpose for
which an out-of-court statement is offered. The ultimate inquiry
is: Was the out-of-court statement used primarily to show the
truth of its content, constituting inadmissible hearsay, or merely
to explain subsequent police action, excluded from hearsay?
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Id. at 566. To answer this question, we turn to the following three-part test
articulated in Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994): (1) does the
testimony describe an out-of-court statement asserting a fact susceptible of being
true or false; (2) what is the evidentiary purpose of the proffered statement; and
(3) is the fact to be proved relevant to some issue in the case, and does any
danger of prejudice outweigh its probative value. Id.[8] During his deposition, the DEA Agent was questioned on the steps the DEA
took to investigate Hedrick and his practice concerning complaints they had
received from local pharmacies in Muncie, Indiana. The DEA Agent testified
as follows:
The complaints focused primarily on the concerns that the
local pharmacies had regarding the total number of
prescriptions being, controlled substance prescriptions
being prescribed out of his business entity, his medical
practice, by him and his employees and the dangerous
combinations of controlled substances being prescribed.
(Tr. Vol. II, p. 128). Turning to the first factor articulated in Craig, we find that
the challenged complaints by the pharmacies were out-of-court statements
susceptible of being true or false. The second part of the Craig test requires
consideration of the evidentiary purpose of the statement. As noted, the State
explained that the evidentiary purpose of the statement was not to prove that
Hedrick had committed the forgery and registration offenses; rather, it was to
explain the subsequent investigation by the DEA. Thus, we consider the last
criteria in Craig: “Is the fact to be proved under the suggested purpose for the
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statement relevant to some issue in the case, and does any danger of prejudice
outweigh its probative value?” Id.[9] In Hernandez v. State, 785 N.E.2d 294, 298 (Ind. Ct. App. 2003), trans. denied, we
determined the relevance of evidence of “course of police work” testimony was
slight when the genesis of the investigation was not relevant to any contested
issue in the case. We held, however, that the prejudicial impact was great
where the defendant was charged with promoting prostitution and the
challenged testimony indicated the police began their investigation because they
had received complaints about prostitution connected with the business. Id.[10] The legitimacy of the DEA Agent’s investigation was not a contested issue,
therefore it had, at most, little probative value. On the other hand, the DEA
Agent’s testimony was relevant as circumstantial evidence of Hedrick’s guilt.
Thus, the prejudicial effect of the testimony was great, as it suggested that
Hedrick actively participated in the forgery and registration offenses.
[11] We require a reasonable level of assurance that out-of-court statements are not
presented by the proponent or considered by the factfinder as evidence of truth.
Williams v. State, 544 N.E.2d 161, 162-63 (Ind. 1989). An immediate limiting
instruction from the court may provide that assurance. Id. at 163. Having no
such assurance here, the trial court abused its discretion in admitting the DEA
Agent’s deposition testimony concerning the pharmacies’ complaints.
[12] Although the admission of the DEA Agent’s deposition testimony was error, it
was harmless. Reversal for the erroneous admission of hearsay evidence is
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appropriate where the evidence caused prejudice to the defendant’s substantial
rights. Craig, 630 N.E.2d at 211. In determining whether error in the
introduction of evidence affected the defendant’s substantial rights, we must
assess the probable impact of that evidence upon the jury. Id. The improper
admission of evidence is harmless error when the conviction is supported by
substantial independent evidence of guilt sufficient to satisfy the reviewing court
that there is no substantial likelihood that the questioned evidence contributed
to the conviction. Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000).
[13] After reviewing the record before us, we conclude that the error in the
admission of the DEA Agent’s deposition testimony was harmless. For the
forgery offenses, Hedrick assigned that error to the medical assistants at his
practice, claiming that the medical assistants must have generated the wrong
prescription, which he mistakenly signed. Notwithstanding his assertion, the
State presented evidence that Hedrick’s pattern of conduct at his practice
supported the conclusion that Hedrick did not make a mistake when he signed
the three prescriptions bearing Gay Watson’s name and suspended DEA
registration number; rather, it was part of his business practice. In support, the
State presented other instances where Hedrick or other members of his staff had
signed prescriptions using someone else’s name and DEA registration number.
In addition, the State presented evidence that after the Board placed Hedrick’s
medical license on indefinite probation in 2013, several restrictions were put in
place, and that following those restrictions, Hedrick’s practice began facing
severe cash-flow problems. As noted in our original opinion, the jury could
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have reasonably concluded that amid the financial struggles of his practice,
Hedrick took risks that he otherwise would not, i.e., including applying a
signature to prescriptions purporting to be written by Watson.
[14] For the registration offenses, Hedrick’s claim at trial was that it was illogical for
him to sign his own name to a prescription bearing Watson’s name, and that
the State’s own evidence proved that it was easy to make such a mistake.
Notwithstanding his claim, we found that the State presented uncontroverted
evidence that prescription forms for controlled substances must bear the
prescriber’s name, DEA registration number, and must also be signed by the
prescriber. As the prescribing doctor, Hedrick should have checked the
prescription forms and ensured that all details were accurate.
[15] In light of all the evidence presented by the State regarding the forgery and
registration offenses, we hold the erroneous admission of the DEA Agent’s
deposition testimony was harmless. Thus, our original opinion is hereby
affirmed in all other aspects.
[16] Bailey, J. and Pyle, J. concur
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