Zackery A. Hurt v. State of Indiana ( 2020 )

FILED
Aug 21 2020, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary J. Stock Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C. Attorney General of Indiana
Indianapolis, Indiana Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zackery A. Hurt, August 21, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-30
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Stephenie D.
Appellee-Plaintiff. Lemay-Luken, Judge
Trial Court Cause No.
32D05-1904-CM-418
Mathias, Judge.
[1] Zackery Hurt (“Hurt”) was convicted in Hendricks Superior Court of Class A
misdemeanor domestic battery and Class B misdemeanor disorderly conduct.
Hurt appeals and argues that the trial court abused its discretion when it
admitted the victim’s hearsay statements into evidence. Concluding that the
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trial court erred when it admitted the hearsay statements into evidence, we
reverse and remand for a new trial.
Facts and Procedural History
[2] On the night of March 30, 2019, Hurt and his wife, Katherine Hurt
(“Katherine”), returned to Katherine’s aunt’s home, where they were dog
sitting, in an Uber with an unknown female passenger. Both Hurt and
Katherine had been drinking alcoholic beverages and were intoxicated.
Hendricks County Sheriff’s Department Sergeant Anthony Goodpaster
(“Sergeant Goodpaster”) was dispatched to the home in response to an
incomplete 911 call.
[3] When Sergeant Goodpaster arrived at the home, he observed a vehicle in front
of the home. The driver of the vehicle identified himself as an Uber driver, and
the unknown female passenger was still in the vehicle. As the sergeant was
asking the female passenger for her identification, Goodpaster heard a loud
noise from inside the home. Sergeant Goodpaster walked up to the front door
and rang the doorbell, but no one responded. He then knocked and announced
himself. Hurt responded and opened the front door.
[4] Hurt’s speech was slurred, his eyes were bloodshot, and Sergeant Goodpaster
smelled the strong odor of alcohol on Hurt’s breath. Hurt had a scratch on his
face and a cut on his lip. When Katherine came to the front door, Sergeant
Goodpaster observed that she was also intoxicated. A subsequent test revealed
that her blood alcohol content was .30. Katherine had a bloody nose and a cut
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on her lip. In the hallway behind the couple, the sergeant saw that a dog gate
had been knocked down to the floor and appeared to have blood on it.
[5] Sergeant Goodpaster’s investigation at the home was recorded on his
department-issued body camera. He interviewed both Hurt and Katherine and
asked them individually how they received their injuries. Hurt was interviewed
first, and he eventually told Sergeant Goodpaster that he and Katherine had
argued and that she had hit him. He told the officer that he did not want to
press charges. Katherine gave several explanations for her injuries, including
that she fell down and that Hurt accidentally elbowed her. Katherine finally
stated that Hurt deliberately hit her face with his elbow.
[6] On April 1, 2019, the State charged Hurt with Class A misdemeanor domestic
battery and Class B misdemeanor disorderly conduct.1 Hurt’s bench trial
occurred on November 4, 2019. Over Hurt’s hearsay objections, the trial court
admitted Sergeant Goodpaster’s testimony that Katherine stated that Hurt hit
her with his elbow and the body camera recording of Goodpaster’s interview
with Katherine. Tr. pp. 27, 39–41; Ex. Vol., State’s Ex. 1. Katherine testified
that due to her state of intoxication, she was unable to recall how she received
her injuries and she could not remember speaking to Sergeant Goodpaster on
March 30, 2019. Tr. pp. 63–64. The trial court found Hurt guilty as charged.
1
The battery charge alleged that Hurt touched Katherine in a rude, insolent or angry manner. The disorderly
conduct charge alleged that Hurt recklessly, knowingly or intentionally engaged in fighting or tumultuous
conduct. Appellant’s App. pp. 12–13.
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Hurt was sentenced to concurrent terms of 180 days with 172 days suspended to
probation. Hurt now appeals.
Discussion and Decision
[7] Hurt argues that the trial court abused its discretion when it admitted Sergeant
Goodpaster’s testimony recounting Katherine’s hearsay statements.2 “A trial
court has broad discretion to admit or exclude evidence, including purported
hearsay.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). We will disturb the
trial court’s ruling only if it amounts to an abuse of discretion, “meaning the
court’s decision is clearly against the logic and effect of the facts and
circumstances or it is a misinterpretation of the law.” Id.
[8] Hearsay is an out-of-court statement used to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it falls
under a hearsay exception. Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct.
App. 2012); Ind. Evidence Rule 802. Katherine’s out-of-court statement was
used to prove the truth of the matter asserted, i.e., that Hurt struck her. The
State argues that Katherine’s statement was admissible under one of three
hearsay exceptions listed in Evidence Rule 803: recorded recollection, excited
utterance, and/or present sense impression.
2
The State argues that Hurt waived the arguments he raises in this appeal by failing to raise them in the trial
court. We do not agree. Hurt made a hearsay objection to both the admission of the recording from
Goodpaster’s body camera and Goodpaster’s testimony recounting Katherine’s statement. Tr. pp. 27, 39–40.
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[9] The recorded recollection exception allows the admission of “[a] record that:
(A) is on a matter the witness once knew about but now cannot recall well
enough to testify fully and accurately; (B) was made or adopted by the witness
when the matter was fresh in the witness’s memory; and (C) accurately reflects
the witness’s knowledge.” Ind. Evidence Rule 803(5). “[B]efore a statement can
be admitted under the recorded recollection hearsay exception, certain
foundational requirements must be met, including some acknowledgment that
the statement was accurate when it was made.” Ballard v. State, 877 N.E.2d 860,
862 (Ind. Ct. App. 2007) (quotation omitted). The trial court should not admit a
witness’s statement into evidence when the witness cannot vouch for the
accuracy of the statement nor remember having made the statement. Id. (citing
Kubsch v. State, 866 N.E.2d 726, 735 (Ind. 2007) (explaining that the trial court
correctly denied introduction of witness’s prior statement where witness could
not vouch for statement that she could not remember making).
[10] At trial, Katherine did not vouch for the accuracy of her statement to Sergeant
Goodpaster. She was heavily intoxicated when she gave the statement and
could not recall speaking to the officer.3 For these reasons, the admission of
Katherine’s statement was not permissible under the recorded recollection
exception.
3
In fact, both Hurt and Katherine were so intoxicated, the officers first transported them to the hospital for
medical clearance before taking them to jail.
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[11] Next, we consider whether the exception for excited utterances applies. “A
statement relating to a startling event or condition, made while the declarant
was under the stress of excitement that it caused” is not excluded by the hearsay
rule, even if the declarant is available as a witness. Ind. Evidence Rule 803(2).
A hearsay statement may be admitted as an excited utterance where: (1) a
startling event has occurred; (2) a statement was made by a declarant while
under the stress of excitement caused by the event; and (3) the statement relates
to the event. Boatner v. State, 934 N.E.2d 184, 186–87 (Ind. Ct. App. 2010).
“This is not a mechanical test, and the admissibility of an allegedly excited
utterance turns on whether the statement was inherently reliable because the
witness was under the stress of the event and unlikely to make deliberate
falsifications.” Id. at 186. “The heart of the inquiry is whether the declarant was
incapable of thoughtful reflection.” Id. While the amount of time that has
passed is not dispositive, “a statement that is made long after the startling event
is usually less likely to be an excited utterance.” Id.
[12] The State argues that Katherine’s statement is admissible as an excited
utterance because “Katherine was intoxicated with a blood alcohol content of
.30 and unable to reflect or make a coherent falsehood.” Appellee’s Br. at 13.
Hurt concedes that Katherine suffered a startling or stressful event but contends
that she was not under stress from that event when she spoke to Sergeant
Goodpaster.
[13] Sergeant Goodpaster arrived on the scene approximately ten minutes after the
911 call was received. After Hurt opened the door to the residence, the sergeant
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spoke to the couple. Sergeant Goodpaster separated them and spoke to Hurt for
several minutes. After he was done speaking to Hurt, the sergeant questioned
Katherine about her injuries. Katherine was visibly intoxicated and struggled to
speak coherently. But she was calm and did not become upset until Sergeant
Goodpaster mentioned that Hurt might go to jail. It is unclear whether
Katherine struggled to recall how her injuries occurred due to her level of
intoxication or whether she was attempting to protect Hurt. She gave several
explanations for how her injuries occurred including that her bloody nose was
the result of illness, that she fell, that Hurt accidently elbowed her in the face,
and that he purposefully elbowed her in the face. Ex. Vol., State’s Ex. 1.
[14] At least fifteen minutes had elapsed between the 911 call and Katherine’s
statements to Sergeant Goodpaster. And Katherine made the statement to the
officer in response to his questioning. See Bryant v. State, 802 N.E.2d 486, 496
(Ind. Ct. App. 2004) (explaining that statements made in response to
questioning “increases the likelihood that the statements were not made under
the stress of the startling event”), trans. denied. Moreover, we agree with Hurt’s
characterization of the video from the body camera, which shows that “Hurt’s
wife was deliberating—albeit drunkenly—about how to respond to repeated
questioning over the course” of several minutes. Appellant’s Br. at 12. Because
Katherine was not under the stress of the event at the time she made her
statement to Sergeant Goodpaster, we conclude that Katherine’s statement was
not admissible as an excited utterance.
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[15] Finally, the State argues that Katherine’s hearsay statement was admissible
under the exception for present sense impressions, which permits “[a] statement
describing or explaining an event, condition or transaction, made while or
immediately after the declarant perceived it.” Ind. Evidence Rule 803(1). This
hearsay exception “is based on the assumption that the lack of time for
deliberation provides reliability.” Mack v. State, 23 N.E.3d 742, 755 (Ind. Ct.
App. 2014) (quoting 13 Robert Lowell Miller, Jr., Ind. Prac. Ser. § 803.101 at
802 (3d ed. 2007)), trans. denied. In order for a statement to fall under the
present sense impression exception, three requirements must be met: (1) it must
describe or explain an event or condition; (2) during or immediately after its
occurrence; and (3) it must be based upon the declarant’s perception of the
event or condition. Amos v. State, 896 N.E.2d 1163, 1168 (Ind. Ct. App. 2008),
trans. denied.
[16] Katherine did not make her statements to Sergeant Goodpaster either during or
immediately after she was injured. As noted above, the altercation occurred at
least fifteen minutes before she was questioned by the officer. See Mack, 23
N.E.3d at 755 (stating that “a few minutes . . . is ample time for a declarant to
deliberate and possibly fabricate a statement”). And given her multiple
explanations for how she suffered the injuries to her nose and mouth, Katherine
had time to deliberate before she spoke to Sergeant Goodpaster. Her ability to
deliberate was hindered by her state of intoxication, but the record establishes
that she was still able to consider her responses to the officer’s questions. For all
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of these reasons, we conclude that Katherine’s statement to Sergeant
Goodpaster was not admissible as a present sense impression.
[17] Because we conclude that Katherine’s statements to Sergeant Goodpaster
constitute inadmissible hearsay, we must determine whether the trial court
committed reversible error or harmless error when it admitted her statements
into evidence. “[E]rrors in the admission of evidence are to be disregarded as
harmless error unless they affect the substantial rights of a party.” In re Des.B., 2
N.E.3d 828, 834 (Ind. Ct. App. 2014). To determine whether the admission of
evidence affected a party’s substantial rights, we assess the probable impact of
the evidence upon the finder of fact. Id.; see also Smith v. State, 114 N.E.3d 540,
544 (Ind. Ct. App. 2018) (explaining that the substantial rights of a party are not
affected if the conviction is supported by independent evidence of guilt such
that there is little likelihood the challenged evidence contributed to the
judgment).
Conclusion
[18] The State presented photographic evidence and testimony from Sergeant
Goodpaster documenting Katherine’s injuries. But Katherine’s inadmissible
hearsay statement was evidence admitted to prove that Hurt engaged in fighting
or tumultuous conduct or that he struck her and caused the injuries to her face.
Therefore, we agree with Hurt that the challenged evidence contributed to the
guilty verdict and affected his substantial rights. Hurt does not claim that the
remaining evidence is insufficient for a new trial and specifically requests a new
trial in his prayer for relief.
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[19] For all of these reasons, we reverse Hurt’s convictions and remand this case for
a new trial.
Bradford, C.J., and Najam, J., concur.
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