Opinion
22A-CR-2519
03-17-2023
Pedro H. Rivera, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Ivan A. Arnaez Arnaez Law Offices Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Dubois Circuit Court The Honorable Nathan A. Verkamp, Judge Trial Court Cause No. 19C01-2103-F5-284
ATTORNEY FOR APPELLANT Ivan A. Arnaez Arnaez Law Offices Evansville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BRADFORD, JUDGE.
Case Summary
[¶1] Pedro Rivera and Jose Ramirez-Garcia got into a heated argument at work. During the argument, Rivera grabbed an ice pick from his workstation and lunged towards Ramirez-Garcia. Rivera chased Ramirez-Garcia for a short time until a supervisor became involved, at which point he returned to his workstation. The State charged Rivera with Level 5 felony attempted battery with a deadly weapon, Level 5 felony intimidation (which the State later dismissed), and Level 6 felony intimidation. After trial, the jury found Rivera guilty of Level 6 felony intimidation and not guilty of the Level 5 felony attempted battery charge. The trial court sentenced Rivera to two years of incarceration and one year in a work-release program. Rivera argues that (1) the State committed fundamental error in its closing argument by suggesting that Rivera was guilty and (2) the trial court abused its discretion when it admitted alleged hearsay from two witnesses over his objection. We affirm.
Facts and Procedural History
[¶2] On March 19, 2021, Rivera and Ramirez-Garcia were working as upholsters at Best Chairs in Ferdinand. The two were conversing in Spanish, and their conversation was "very aggressive" and "very heated." Tr. Vol. II pp. 20, 43. As he argued with Ramirez-Garcia, Rivera kept pacing between his workstation and Ramirez-Garcia's workstation. At some point, Rivera grabbed an ice pick from his workstation and "took off towards" Ramirez-Garcia. Tr. Vol. II p. 24. Rivera then "lunged at [Ramirez-Garcia] about [...] three times" but missed each time. Tr. Vol. II p. 91. Ramirez-Garcia "jumped backwards out of the aisle" and "was running backwards" as "[Rivera] was coming after him." Tr. Vol. II p. 46. As he fled, Ramirez-Garcia kept saying, "He crazy, he crazy, Pedro crazy[,]" and "Pedro, stop, no, no." Tr. Vol. II pp. 49, 60. When a supervisor became involved, Rivera "stopped in his tracks [_] and went back to work." Tr. Vol. II p. 60.
[¶3] Shortly thereafter, Rivera went home, and police arrived at Best Chairs to a "shaken" Ramirez-Garcia. Tr. Vol. II p. 60. Three days later, the State charged Rivera with Level 5 felony attempted battery with a deadly weapon, Level 5 felony intimidation (which the State later dismissed), and Level 6 felony intimidation. The case proceeded to a jury trial on August 3, 2022.
[¶4] At trial, several coworkers testified regarding the incident between Ramirez-Garcia and Rivera. One coworker testified that Ramirez-Garcia had said, "Pedro, stop, no, no" while "try[ing] to get away." Tr. Vol. II p. 49. Another coworker testified that Ramirez-Garcia had said "he crazy, he crazy, Pedro crazy" while running from Rivera. Tr. Vol. II p. 59. Rivera objected to both statements, alleging them to be hearsay.
[¶5] Rivera testified that he had been "very scared" because Ramirez-Garcia had "clapped his hands in [Rivera's] face." Tr. Vol. II p. 113. In his closing argument, Rivera claimed that he had acted in self-defense, and he was "lucky it worked otherwise it would be Ramirez-Garcia on trial." Tr. Vol. II p. 165. In response, the prosecutor stated that the "[d]efense [said], lucky that it worked, meaning this alleged self-defense. Lucky it worked or it would be Ramirez-Garcia on trial. On trial for what? Clapping his hands in the guy's face? We don't prosecute that in Dubois County." Tr. Vol. II p. 170. Rivera did not object, the jury found him guilty of Level 6 felony intimidation, and the trial court sentenced him to two years of incarceration and one year on work release.
Discussion and Decision
[¶6] To start, Rivera argues that the prosecutor's statement in closing arguments "was a personal opinion that the defendant was guilty [...] inferred from extrajudicial evidence" constituting fundamental error in violation of his due process rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and under the Indiana Constitution. Appellant's Br. p. 23. Second, Rivera argues that the trial court erred when it allowed "hearsay from repetitive witnesses" over his hearsay and Sixth Amendment confrontation objections. Appellant's Br. p. 24. For its part, the State argues that the prosecutor's statement was not fundamental error and that the alleged hearsay was not, in fact, hearsay, and even if it were, it would be admissible under the excited utterance exception.
I. Fundamental Error
[¶7] Rivera claims that the prosecutor's statement in closing argument constituted prosecutorial misconduct because it referred to extrajudicial evidence. Rivera acknowledges that he failed to object to that statement, which would normally result in waiver of the issue on appeal; however, Rivera alleges this statement established fundamental error.
[¶8] As an initial matter, an appellant alleging prosecutorial misconduct must show (1) that "the prosecutor engaged in misconduct, and if so (2) [that] the misconduct, under all of the circumstances, placed the [appellant] in a position of grave peril to which he or she would not have been subjected." Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (citing Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002)). However, because Rivera failed to object, he must also show that the alleged misconduct caused fundamental error. See Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).
[¶9] "Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to 'make a fair trial impossible.'" Id. at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). In other words, fundamental error arises when there are "clearly blatant violations of basic and elementary principles of due process." Benson, 762 N.E.2d at 756. We reserve this exception for "the most egregious and blatant trial errors." Ryan, 9 N.E.3d at 668.
[¶10] Here, Rivera has failed to establish that the prosecutor's statement constituted fundamental error. In Ryan, the prosecutor stated, in part, during closing arguments that "we are here because everyone has a right to a jury trial[,]" which the defendant argued had impermissibly implied his guilt. Id. at 668. We determined that the prosecutor's statement "clearly [was] not problematic" because the right to a jury trial "does not convey the idea that the trial [...] is anything other than an inherent part of every criminal proceeding." Id. at 669. Likewise, we conclude that the prosecutor's statement here is not problematic. The prosecutor's statement simply indicated that Dubois County does not prosecute hand clapping and thus Ramirez-Garcia would not have been prosecuted for clapping his hands in Rivera's face. We are at a loss to understand how the prosecutor's correct statement of law "ma[d]e a fair trial impossible." Benson, 762 N.E.2d at 756.
[¶11] Moreover, the prosecutor made that statement in response to Rivera's closing argument. A prosecutor is "entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable." Ryan, 9 N.E.3d at 669. When Rivera's trial counsel argued that Rivera "was lucky [his self-defense] worked otherwise it would be Ramirez-Garcia on trial[,]" the prosecutor was entitled to respond. Tr. Vol. II p. 165. The prosecutor did so by clarifying that simply clapping one's hands in another's face is not a criminal act for which Dubois County prosecutes.
[¶12] Even if the prosecutor's statement was improper, it would not constitute fundamental error. Notably, the trial court and attorneys instructed the jury multiple times that a defendant is innocent until proven guilty beyond a reasonable doubt. Final instructions are presumed to cure any misstatements of law made by counsel during closing argument. Steinberg v. State, 941 N.E.2d 515, 531 (Ind.Ct.App. 2011), trans. denied. Further, the State presented substantial evidence of Rivera's guilt with testimony from Rivera's supervisor, two of his co-workers, and Ramirez-Garcia, all of whom had testified that Rivera had lunged at Ramirez-Garcia and chased him after their heated argument. In short, Rivera has failed to establish that the prosecutor's statement was a fundamental error that "ma[d]e a fair trial impossible." Benson, 762 N.E.2d at 756.
II. Hearsay
[¶13] Rivera alleges that the trial court abused its discretion when it admitted alleged hearsay statements from two witnesses in violation of his Sixth Amendment confrontation right. Specifically, Rivera claims he was prejudiced when the first witness testified that Ramirez-Garcia had said, "Pedro, stop, no, no[,]" during the incident and when the second witness testified that Ramirez-Garcia had also said, "[H]e crazy, he crazy, Pedro crazy." Tr. Vol. II pp. 49, 59. Hearsay is "a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted." Ind. Evid. Rule 801(c). Such statements are generally inadmissible, subject to certain exceptions. See Ind. Evid. Rule 802. When it comes to evidentiary decisions, trial courts enjoy "broad discretion whether to admit or exclude evidence." Matter of K.R., 154 N.E.3d 818, 820 (Ind. 2020) (citing Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019)). We review a trial court's evidentiary decisions for an abuse of discretion and will reverse those decisions only when they are "clearly against the logic and effects of the facts and circumstances." Pugh v. State, 52 N.E.3d 955, 964 (Ind.Ct.App. 2016) (citing Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012)), trans. denied.
[¶14] For its part, the State argues that the trial court did not abuse its discretion because these two statements are not hearsay, and even if they were, they would fall under an exception. We agree. "True requests, commands, and questions are not assertions, and evidence regarding such utterances may come in because they are not offered for the truth of the matter asserted." Stewart v. State, 945 N.E.2d 1277, 1287 (Ind.Ct.App. 2011) (citing Lampitok v. State, 817 N.E.2d 630, 639 (Ind.Ct.App. 2004), trans. denied), trans. denied. The first witness's testimony, that Ramirez-Garcia had said, "Pedro, stop, no, no" while trying to get away from Rivera, was a command. Tr. Vol. II p. 49. The statement contained no factual assertion and therefore cannot be hearsay. See Stewart, 945 N.E.2d at 1287.
[¶15] Moreover, the trial court also did not err when it admitted the second witness's statement. The second witness testified that Ramirez-Garcia had said, "[H]e crazy, he crazy, Pedro crazy." Tr. Vol. II p. 59. If a "statement does not contain an assertion of fact, we consider the evidentiary purpose of the proffered statement; if it is to prove the fact asserted [_] the statement is inadmissible as hearsay." Lampitok, 817 N.E.2d at 640. The State explains that Rivera's mental state "was not an issue at trial." Appellee's Br. p. 11. As a result, this statement was not being offered to prove the truth of the matter asserted, i.e., that Rivera is "crazy." Tr. Vol. II p. 59. We cannot say that the trial court erred by admitting this statement as non-hearsay.
[¶16] Even if we assume these statements were hearsay, we agree with the State that the excited-utterance exception would apply. The excited utterance exception applies "when the statement relates 'to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.'" Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000) (quoting Ind. Evid. R. 803(2)). To use this exception, the statement's proponent must establish that there was (1) a startling event, (2) a statement made under the stress of that event, and (3) a statement that relates to that event. Davenport v. State, 749 N.E.2d 1144, 1144 (Ind. 2001). Here, the State has established those criteria. Rivera and Ramirez-Garcia were in a heated argument when Rivera lunged at Ramirez-Garcia with an ice pick multiple times. After missing Ramirez-Garcia's person, Rivera chased Ramirez-Garcia with the ice pick. Rivera's conduct was a startling event that made Ramirez-Garcia "really scared" and Ramirez-Garcia's statements related to that startling event. Tr. Vol. II p. 88. Consequently, even if these statements were hearsay, we cannot say that the trial court abused its discretion in admitting them.
[¶17] In terms of his Confrontation Clause argument, Rivera claims that he "was deprived of the jury's piercing gaze as to Mr. Ramirez-Garcia's hearsay words he himself did not actually utter once he got on the stand." Appellant's Br. p. 36. Contrary to what Rivera argues, these witness statements are admissible under the Confrontation Clause. "[I]f a statement is either nontestimonial or non[-]hearsay, the federal Confrontation Clause will not bar its admissibility at trial." Williams v. State, 930 N.E.2d 602, 607-08 (Ind.Ct.App. 2010), trans. denied. As we have already concluded, the two statements Rivera challenges on appeal are not hearsay. Consequently, the Confrontation Clause does not apply to those statements and the trial court did not abuse its discretion when it admitted them.
[¶18] The judgment of the trial court is affirmed.
May, J., and Mathias, J., concur.