Opinion
24A-CR-944
10-15-2024
Hillard Hathaway, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Kristin A. Mulholland Appellate Public Defender Crown Point, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court The Honorable Samuel L. Cappas, Judge Trial Court Cause No. 45G04-1802-MR-4
ATTORNEY FOR APPELLANT
Kristin A. Mulholland
Appellate Public Defender
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Catherine E. Brizzi
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] After Hillard Hathaway was convicted of murder, he was sentenced to a term of sixty years, enhanced by an additional fifteen years by virtue of the firearm enhancement. Hathaway contends that the trial court abused its discretion in excluding his proffered expert testimony regarding gun-powder residue from trial. Concluding otherwise, we affirm.
Facts and Procedural History
[¶2] On January 24, 2018, Arthur Smith and his friend and business partner Danny Leake drove to Chicago. After the pair returned to Indiana, the car that they had been driving broke down. Smith called a friend to pick them up and drive them to a tow truck that they owned and kept at the tow yard where they ran their business. They unsuccessfully attempted to retrieve the car that they had been driving with the tow truck.
[¶3] Upon arriving back at the tow yard, they noticed two vehicles in front of the gate, a burgundy Suburban and a black Mercury, both covered with mud. A man, later identified as Michael Brown, was standing in front of the gate behind the Suburban. Brown indicated that he was there to help another man pull the Mercury out of the mud where it had gotten stuck. Smith followed Brown into the yard, and they approached Hathaway, who had been taking batteries out of a semitruck trailer that was being stored at the tow yard. Hathaway informed Smith that he was "working on his own truck" and "grabbed the batteries and ... started walking with" Smith. Tr. Vol. IV p. 69. Hathaway and Smith returned to Leake, and Brown left in the Suburban.
[¶4] Smith noticed that the front hood of his tow truck was open and asked Hathaway about the hood. Hathaway told Smith that he had not taken any batteries out of the tow truck. Hathaway gave Brown's telephone number to Smith and Leake, and Leake called him to determine if he had taken a battery from the tow truck. Brown stated that he would return with the battery, and Hathaway left the tow yard in the Mercury. After Hathaway had left, Smith and Leake started drinking beer as they waited for Brown to return. After approximately forty minutes, Brown returned in the Suburban. Leake got out of the tow truck, beer in his hand, to retrieve the battery.
[¶5] Leake approached the Suburban, and, when he was approximately two feet away from the passenger door, the door opened and someone "stuck" a gun "out the door." Tr. Vol. IV p. 79. Hathway then got out of the passenger side of the vehicle with the gun in his hand. Brown subsequently exited the driver's side of the vehicle. Smith got out of the tow truck where he had been waiting, approached the men, and noticed that Brown also had a gun. Leake told Hathaway, who by this point was agitated, to put his gun down. Hathaway responded that he was not "putting nothing down" and that he was "about that life." Tr. Vol. IV pp. 84, 85.
[¶6] Smith attempted to calm Leake and Hathaway down, after they had started to yell at each other. Hathaway again pointed his gun at Leake and, after about a minute, started shooting Leake. Smith initially saw Hathaway fire two shots at Leake. After Hathaway had fired the first two shots, Leake bent at the waist and held his chest. Smith grabbed Hathaway's arm, and Hathaway fired twice at Smith before Smith ran away.
[¶7] Hathaway chased after Leake, shooting at him multiple times while chasing him. Brown also fired his gun at Leake multiple times. Eventually, Leake fell to the ground, and Brown returned to his vehicle. While Leake was on the ground, Hathaway "stood over him and shot some more." Tr. Vol. IV p. 100. Smith called 911, and officers were dispatched in response to a report of shots fired at approximately 1:30 a.m. Smith later testified that he had not been armed with a gun on the night and question and, to his knowledge, Leake had not been either.
[¶8] When officers arrived, they found Leake lying in a field approximately thirty-five feet from the road. Leake, who was wearing an orange reflective vest over an army fatigue coat, was unresponsive but appeared to be breathing. It appeared that there was blood on his right upper chest, and there was a "freshly-spilled beer" that was "still foaming" near his body. Tr. Vol. III pp. 48, 49. After the officers had arrived, but before the medics arrived, Leake stopped breathing. No weapons were found on or near Leake's person. Leake was later pronounced dead and his cause of death was subsequently determined to be "multiple, five, gunshot wounds." Tr. Vol. III pp. 79-80.
[¶9] Dr. Zhuo Wang, a forensic pathologist, determined that all five gunshot wounds were "from back to front," meaning that the shooter had likely been behind Leake when the shots were fired. Tr. Vol. III p. 78. All told, officers collected twenty-one spent shell casings from the scene. Five of the recovered casings were A USA 10mm auto, one was a Blazer .40 caliber Smith &Wesson, and the rest were .40 caliber Sellier &Bellot. The sixteen .40 caliber shell casings had the "same class characteristics and individual markings" that indicated they had been fired from the same gun. Tr. Vol. III p. 197. The five 10mm cartridge cases appeared to have been fired from the same gun, which indicated that two separate guns had been used in the murder. Keys and a cell phone belonging to Hathaway were also found at the scene.
[¶10] Officers spoke with Hathaway, who admitted that he had been to the tow yard where the murder had occurred but denied that he had been there on the day in question. Hathaway also told officers that he had dropped his keys while trying to push a vehicle out of the mud the last time he had been at the tow yard. Hathaway was "very defensive" during questioning. Tr. Vol. IV p. 183. He became "very defensive[, v]ery standoffish" and told officers that he could not remember his telephone number. Tr. Vol. IV p. 183.
[¶11] On February 9, 2018, the State charged Hathaway with murder and Level 1 felony attempted murder. The State also sought a firearm sentencing enhancement. Prior to trial, the State filed a motion in limine, in which it sought to exclude the testimony of defense witness Steven Howard, claiming that Howard's testimony was based on inadmissible hearsay evidence. The trial court conditionally granted the motion.
[¶12] During trial, the State argued that Howard did not qualify as an expert witness because he did not have the necessary level of experience with the testing laboratory or their method of testing. In a hearing outside the presence of the jury, Howard testified in an effort to establish his qualifications. Howard testified that he was "a part-time lawyer and a full-time weapons, ballistics, gunshot residue . . . expert." Tr. Vol. V. p. 23. Howard testified that he had conducted between 300 and 350 gunshot-residue tests and had served as an expert witness in other jurisdictions in the past.
[¶13] Howard testified that he had swabbed the jacket and safety vest worn by Leake and that the samples had been sent to the RJ Lee Laboratory ("the Laboratory"), which had performed the Scanning Electron Microscope Test ("the SEM Test"). Howard acknowledged that he was not aware of when the Laboratory had been accredited or what accreditation they held. He did not know the process that the Laboratory had gone through to get accredited or the process the Laboratory is required to follow to keep its accreditation. Howard did not know the qualifications of the individuals employed by the laboratory. Howard had only a "working theory" on how the SEM Test was conducted and did not know if the instrument used by the Laboratory had ever been certified or if it had been routinely maintained. Tr. Vol. V p. 29. Howard had not completed any of the testing himself and had relied on the Laboratory's findings to form his opinions.
[¶14] At the conclusion of Howard's testimony and after the parties presented their arguments regarding Howard's qualifications, the trial court stated the following:
Listening to him, he's got certain knowledge in the field of gunshot residue. But, to me, it seems like he's just, like, a ... field agent who took swabs and sent them to the lab just like the detective takes a swab of somebody's cheek, sends them to the state police lab for DNA analysis. And State has the person running the test come testify to the results, not the detective who collects the swab and the cheek testify to all the results and what the matches were. That seems analogous to what's happening here.
He doesn't - he's not a forensic scientist. He hasn't worked in the lab. He's not familiar with the lab procedures. The State can't cross-examine him on whether or not the machine was properly calibrated, how the tests were run....
There's no one here that can testify as to the procedures used by [the Laboratory] to ensure the validity or viability of their testing.Tr. Vol. V p. 68. The trial court cited our opinion in Faulkner v. Markkay of Indiana, Inc., 663 N.E.2d 798, 801 (Ind.Ct.App. 1996), trans. denied, in which we concluded that "[w]e cannot allow an expert's reliance on hearsay to be employed as a conduit for placing the physician's statements before the jury. The expert witness must rely on his own expertise in reaching his opinion and may not simply repeat [the] opinions of others." Given our conclusion in Faulkner, the trial court reasoned that it would be inappropriate to "allow [Howard's] reliance on hearsay, the [Laboratory] report, the conduit for placing [the Laboratory's] statements before the jury. ... I'm not going to allow him to testify." Tr. Vol. V. p. 69. The trial then proceeded with Hathaway testifying on his own behalf.
[¶15] The jury found Hathaway guilty of murder and not guilty of attempted murder. The trial court conducted a bench trial on the firearm enhancement, after which it found that Hathway had knowingly or intentionally used a firearm in the commission of the offense. The trial court subsequently sentenced Hathaway to sixty years for the murder conviction, enhanced by an additional fifteen years, for an aggregate seventy-five-year sentence.
Discussion and Decision
[¶16] Hathaway contends that the trial court abused its discretion in excluding Howard's testimony. "The trial court has broad discretion to rule on the admissibility of evidence." Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). "Rulings on the admissibility of evidence are reviewed for an abuse of discretion and ordinarily reversed when admission is clearly against the logic and effect of the facts and circumstances." Id.
[¶17] Hathaway argues that the trial court denied him the opportunity to present a defense by excluding Howard's testimony regarding the presence of gunshot residue on the jacket and safety vest that Leake had been wearing.
In attempting to convince the jury that he had not killed Leake, Hathaway testified at trial that he had observed Brown pulling out a gun and that the flash of a muzzle from Leake firing a gun. Hathaway's claims that he had not been armed on the night in question and that Leake had been were countered by Smith, who testified that Leake had not been armed and that he had observed Hathaway with a gun, shooting at Leake. In support of his defense, Hathaway sought to introduce testimony from Howard indicating that he had interpreted the results of the gunshot-residue tests to support the conclusion that Leake had been armed at some point before his murder. Howard, for his part, indicated that he would have testified that "[w]hile it is true [Leake] could have handled a firearm before the night in question, it is equally true that he could have held it on the night in question." Appellant's App. Vol. II p. 66; Tr. Vol. V p. 47. Howard's testimony would have, at most, supported the inference that Leake had been armed at some point before his death and would not have refuted evidence in the record which indicated that Hathaway had shot at Leake.
Although the right to present a defense, which includes the right to present the defendant's version of the facts, is of the utmost importance, it is not absolute. The accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.Parker v. State, 965 N.E.2d 50, 53 (Ind.Ct.App. 2012) (internal citations and quotation omitted), trans. denied.
[¶18] Hathaway asserts that the trial court abused its discretion in excluding Howard's testimony because Howard was sufficiently qualified to render an expert opinion on the presence of gunshot residue. Indiana Evidence Rule 702(a) provides that
[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
Two requirements must be met in order for a witness to qualify as an expert: "(1) the subject matter is distinctly related to some scientific field, business or profession beyond the knowledge of the average lay person; and (2) the witness is shown to have sufficient skill, knowledge or experience in that area so that the opinion will aid the trier of fact." Bacher v. State, 686 N.E.2d 791, 800 (Ind. 1997).
[¶19] Before excluding Howard's testimony, the trial court allowed Howard to testify to his qualifications outside the presence of the jury. While Howard detailed his expertise with the subject matter of gun residue generally, his testimony also detailed his lack of knowledge and familiarity with the Laboratory's accreditation procedures and employee qualifications. Howard acknowledged that he had only a "working theory" on how the SEM Test was conducted and did not know if the instrument used by the Laboratory had even been certified or if it had been routinely maintained. Tr. Vol. V p. 29. Further, Howard had not completed any of the testing himself and indicated that he had relied on the Laboratory's findings to form his opinions.
[¶20] In excluding Howard's testimony, the trial court compared him to a field agent who took swabs from an individual and sent them to the lab, such as the detective who takes a swab of somebody's cheek and sends it to the state police lab for DNA analysis. The trial court noted in such a circumstance, the State would call the individual who actually ran the DNA analysis to testify about the results, not the field agent. The trial court also expressed concerns that Howard was
not a forensic scientist. He hasn't worked in the lab. He's not familiar with the lab procedures. The State can't cross-examine
him on whether or not the machine was properly calibrated, how the tests were run. . . .
There's no one here that can testify as to the procedures used by [the Laboratory] to ensure the validity or viability of their testing.Tr. Vol. V p. 68. The trial court determined that, given Howard's lack of knowledge regarding the actual testing completed on the samples provided to the Laboratory, coupled with the fact that his opinion was generated from inadmissible hearsay and not any personal knowledge, Howard did not qualify as an expert pursuant to Evidence Rule 702.
[¶21] We acknowledge that Evidence Rule 703 provides that "[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field." In applying Evidence Rule 703, we have previously stated that
an expert may offer his opinion based in part upon reports not in evidence and upon inadmissible hearsay, provided (1) the expert has sufficient expertise to evaluate the accuracy and reliability of the information, (2) the report is of the type normally found reliable, and (3) the information is the type customarily relied upon by the expert in the practice of his profession.Faulkner, 663 N.E.2d at 800 (emphasis omitted). Furthermore, the Indiana Supreme Court has recognized that
that some experts customarily gather information from a variety of other experts and authoritative sources and rely upon it in reaching their opinions. When an expert witness's own independent opinion is arrived at in this manner and it is
introduced into evidence and the expert witness is subject to cross-examination, that part of the substrata of information which aided in the formation of the opinion, though hearsay in nature and though not falling within any hearsay exception, may nevertheless be admissible for use by the trier of fact in judging the weight of the opinion.Miller v. State, 575 N.E.2d 272, 274 (Ind. 1991). "However, such hearsay is inadmissible where it is merely a restatement of another's conclusion as a conclusory answer to an ultimate fact in issue, such that the veracity of the statement is not subject to the test of cross-examination." Barrix v. Jackson, 973 N.E.2d 22, 26 (Ind.Ct.App. 2012) (internal quotation omitted), trans. denied. Stated differently,
[a]lthough an expert may rely on others' opinions as a basis for his opinion if other experts in the field reasonably rely on such opinions, the expert must bring his own expertise to bear in reaching his opinion and may not simply repeat opinions of others or announce that other experts concur with his opinion with respect to the case.Duneland Properties, LLC v. N. Ind. Pub. Serv. Co., 14 N.E.3d 95, 105 (Ind.Ct.App. 2014).
[¶22] In arguing that the trial court abused its discretion in finding that Howard was not qualified to testify as an expert, Hathaway cites to our opinions in Wells v. State, 555 N.E.2d 1366 (Ind.Ct.App. 1990) and Hall v. State, 796 N.E.2d 388 (Ind.Ct.App. 2003), trans. denied. Hathaway's reliance on these cases, however, is inapposite to the facts of this case, as neither involves an expert with the lack of familiarity of the underlying testing procedures used as Howard.
[¶23] In Wells, the expert in question did not have a degree in chemistry but was employed as the laboratory director whose "job was to manage and direct the activities of all the forensic scientists and criminal ballistics specialists in the laboratory." 555 N.E.2d at 1372. While the expert had not conducted the test himself, he had the knowledge sufficient to testify about both the qualifications of those who did and the legitimacy of the laboratory's testing practices. See id. In Hall, the expert in question was a physician who was qualified to testify about the intricacies of radiological testing. 796 N.E.2d at 400. While the physician had not attended the deceased's autopsy or seen the deceased's computerized-tomography scan ("CT scan"), the physician had relied on the radiology report of the deceased's CT scan in forming his opinion. Id. The State conceded that reviewing the radiology report "is more helpful to a physician than reviewing the CT scan itself and that an expert witness need not attend an autopsy to form an opinion as to the cause of a person's death." Id. at 399. The physician relied on the autopsy report and the radiology report, i.e., a medical record sufficient to be a valid ground for diagnosis, in forming his opinion regarding cause of death. Unlike Howard, both the expert in Wells and the physician in Hall had been able to testify regarding the intricacies of the tests conducted and establish some indicia of reliability for said tests. Without some similar testimony regarding the Laboratory's practices and qualifications, we cannot say that the Laboratory's report carried the same indicia of reliability.
[¶24] In short, unlike the experts at issue in Wells and Hall, Howard was not qualified to give expert testimony on the results of the testing conducted. Again, Howard was not employed by the Laboratory, lacked knowledge regarding the Laboratory's employee qualifications, was unfamiliar with the Laboratory's accreditation procedures, and did not know if the instrument used to test the materials had been certified or was regularly maintained. He had only a "working theory" of how the tests used by the Laboratory were conducted and had not completed any of the testing himself. Tr. Vol. V p. 29. Howard relied on the Laboratory's findings to form his opinions but could not be crossexamined about the accuracy of the Laboratory's findings or the methods used by those who had actually completed the testing. Given the facts and circumstances of this case, we cannot say that the trial court abused its discretion in excluding Howard's testimony.
[¶25] The judgment of the trial court is affirmed.
Bailey, J., and Foley, J., concur.