Opinion
24A-CR-176
11-25-2024
Billy Simpson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT J. PATRICK WRIGHT CANNON BRUNS &MURPHY MUNCIE, INDIANA ATTORNEY FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA DAYLON L. WELLIVER 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Delaware Circuit Court The Honorable Kimberly S. Dowling, Judge Trial Court Cause No. 18C02-2101-F5-10
ATTORNEY FOR APPELLANT J. PATRICK WRIGHT CANNON BRUNS &MURPHY MUNCIE, INDIANA
ATTORNEY FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA
DAYLON L. WELLIVER DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] Billy Ray Simpson was convicted of Level 5 felony domestic battery for striking his pregnant girlfriend, Danielle Edwards, in the head with a glass ashtray. Edwards did not testify against Simpson at trial. Rather, the State proved its case through evidence of statements Edwards made on the night of the battery to a 911 operator, responding police officers, and a paramedic. On appeal, Simpson claims Edwards's statements were inadmissible hearsay and that their admission violated his right of confrontation under the Sixth Amendment to the United States Constitution. We find no error in the admission of Edwards's statements to the 911 operator, and we deem harmless any error in the admission of her other challenged statements. Accordingly, we affirm.
Facts
[¶2] Edwards called 911 from Simpson's home, but she did not respond when the operator answered and asked, "Where's your emergency?" Exh. 10 (00:01). Instead, Edwards left the phone line open and spoke to Simpson in a way that gave the operator information about what was happening. Among other things, Edwards indicated she was pregnant and that Simpson had beaten her. She specifically stated, "You smoked me in the head with an ashtray." Exh. 10 (02:13). She also provided Simpson's address and indicated that he would not let her leave. The 911 call concluded with Edwards stating to the operator, "Please get me out of here. Please." Exh. 10 (04:40).
[¶3] Police were dispatched to Simpson's home soon after the 911 call. Officer Mariah Copeland arrived roughly 25 minutes later. Other officers were already on the scene, communicating with Simpson and Edwards through a bedroom window and attempting to deescalate the situation. According to Officer Copeland, Simpson was "loud," "angry," and "frustrated," and he refused to come outside to speak with police. Tr. Vol. II, p. 34. Meanwhile, Edwards made statements indicating that Simpson would not let her leave, and she appeared "very emotional," "upset," and "exhausted." Id. at 35.
[¶4] When Officer Bryce Dulworth arrived at Simpson's home approximately 40 minutes after the 911 call, police were still negotiating with Simpson through the window. But after another 20 minutes, Simpson agreed to let the officers inside. Edwards then emerged from the home and spoke with Officer Dulworth while "crying," "shaking," and appearing "nervous." Id. at 49. According to Officer Dulworth, Edwards stated she was pregnant and that Simpson had struck her in the head with an ashtray. Edwards also stated she did not want to be a "snitch" and would be "dead" if Simpson was arrested. Id. at 55-56.
[¶5] A paramedic soon evaluated Edwards at the scene. Edwards told the paramedic that she was pregnant and that her "significant other" had struck her in the head several times with a large ashtray. Id. at 96, 98. The paramedic examined Edwards's head and observed red abrasions and swelling on her scalp. The paramedic then encouraged Edwards to go to the hospital for further medical treatment, but Edwards declined. According to the paramedic, Edwards stated she was afraid she would be killed if she did so.
[¶6] The State charged Simpson with Level 5 felony domestic battery resulting in bodily injury to a pregnant woman. Edwards did not testify at Simpson's jury trial, but the State played a recording of her 911 call, including the statements Edwards made to the operator about being pregnant and Simpson beating her with an ashtray. Officer Dulworth and the paramedic testified about Edwards making similar statements at the scene. The State also presented photographs that police took of Edwards's head abrasions and of a glass ashtray found inside Simpson's home. Additionally, the State presented Officer Copeland's bodycam footage, on which Edwards can be heard making statements indicating she was not free to leave Simpson's home earlier than she did.
[¶7] The jury found Simpson guilty of the Level 5 felony charge, and the trial court sentenced him to four years in prison with two years suspended to probation. Simpson now appeals his conviction, arguing that the trial court erred by admitting evidence of Edwards's out-of-court statements.
Discussion and Decision
[¶8] Simpson specifically challenges the out-of-court statements admitted through the 911 recording, the testimony of Officer Dulworth and the paramedic, and Officer Copeland's bodycam footage. Though Simpson does not allege any prejudice resulting from the admission of this evidence, we assume his evidentiary claims are part of a broader attack on the sufficiency of the evidence supporting his conviction.
[¶9] To convict Simpson of domestic battery, the State had to prove beyond a reasonable doubt that Simpson knowingly or intentionally touched Edwards in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1.3(a)(1). But to support Simpson's conviction as a Level 5 felony, the State also had to prove that Edwards was pregnant, Simpson knew of the pregnancy, and the battery resulted in bodily injury. Id. § 1.3(c)(3). We construe Simpson's evidentiary claims as attacking the sufficiency of the evidence to prove Edwards was pregnant and that Simpson touched her in a rude, insolent, or angry manner.
[¶10] Simpson contends Edwards's out-of-court statements on these two factual issues were inadmissible hearsay and, alternatively, that their admission violated his right of confrontation under the Sixth Amendment to the United States Constitution. We review Simpson's hearsay claims for an abuse of discretion and his Sixth Amendment claims de novo. See Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013). In the end, we find no error in the admission of Edwards's statements on the 911 recording, and we find harmless any error in the admission of her other challenged statements.
I. Edwards's Statements on the 911 Recording Were Not Inadmissible Hearsay
[¶11] Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted" and "is not admissible unless the rules of evidence or other law provides for its admissibility." Ind. Evidence Rules 801(c), 802. The trial court admitted Edwards's statements on the 911 recording under Indiana Evidence Rule 803(2), which excludes "excited utterances" from the rule against hearsay. According to the rule, an exited utterance is "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Ind. Evidence Rule 803(2). But "[t]his is not a mechanical test." Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000). "It turns on whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications." Id.
[¶12] Simpson claims Edwards's statements on the 911 recording were not excited utterances because "[her] voice was clear and calm, without interruptions, crying or other indicia of distress." Appellant's Br., p. 9. This, however, is not the full story. The 911 recording is approximately five minutes in length, and Edwards is audibly emotional for more than half of it. At first, she calmly and indirectly relays to the 911 operator her stressful situation-being pregnant, beaten, and currently confined to Simpson's home. But the tone in Edwards's voice soon shifts to anger, then sadness, then defeat, as she both screams and whimpers about being pregnant and Simpson hitting her in the head with an ashtray.
[¶13] The trial court did not abuse its discretion by admitting Edwards's hearsay statements on the 911 recording as excited utterances.
II. The Admission of Edwards's Statements on the 911 Recording Did Not Violate the Sixth Amendment
[¶14] The Confrontation Clause of the Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The United States Supreme Court has construed this Clause as prohibiting the admission of "testimonial statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for crossexamination.'" Ward v. State, 50 N.E.3d 752, 757 (Ind. 2016) (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)).
[¶15] "To determine whether a statement is testimonial, a court must decide whether the statement has 'a primary purpose of creating an out-of-court substitute for trial testimony.'" Isom v. State, 31 N.E.3d 469, 483 (Ind. 2015) (quoting Michigan v. Bryant, 562 U.S. 344, 357 (2011)). Statements made to a 911 operator are not testimonial "when made in the course of [the operator's] interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis v. Washington, 547 U.S. 813, 822 (2006).
[¶16] Simpson claims Edwards's statements during the 911 call were testimonial because "[t]he danger allegedly presented by [his] conduct was no longer present and there was no indication of an ongoing emergency." Appellant's Br., p. 9. To the contrary, the circumstances of Edwards's statements objectively indicate that their primary purpose was to enable police assistance to meet the ongoing emergency of her being pregnant, beaten, and confined to Simpson's home. From start to finish, the call is reasonably interpreted as Edwards's plea for help.
[¶17] The trial court did not violate Simpson's right of confrontation by admitting Edwards's statements on the 911 recording.
III. Any Error in the Admission of Edwards's Other Challenged Statements Was Harmless
[¶18] Both the erroneous admission of hearsay evidence and the violation of a defendant's Sixth Amendment right of confrontation are subject to harmless error analysis. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014) (hearsay); Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999) (confrontation). "The improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact." Hunter v. State, 72 N.E.3d 928, 932 (Ind.Ct.App. 2017).
[¶19] Materially, the testimony of both Officer Dulworth and the paramedic was cumulative of the properly admitted 911 recording. All three evidenced Edwards's statements about being pregnant and Simpson beating her in the head with an ashtray. And because the statements on the 911 recording were from Edwards's own mouth, they were the most incriminating. Error, if any, in the admission of Edwards's statements through Officer Dulworth's testimony or the paramedic's testimony was harmless.
[¶20] Officer Copeland's bodycam footage was similarly cumulative of the 911 recording, as both revealed Edwards's statements indicating that Simpson would not let her leave his home. Moreover, Simpson's apparent confinement of Edwards was not an element of his domestic battery offense. Thus, any error in the admission of the bodycam footage was harmless.
Conclusions
[¶21] For the foregoing reasons, we affirm Simpson's conviction for Level 5 felony domestic battery.
Vaidik, J., and Foley, J., concur.