FOR PUBLICATION
Jun 12 2014, 10:20 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DANIELLE L. GREGORY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GABRIEL MCQUAY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1311-CR-954
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Stanley E. Kroh, Judge Pro Tempore
Cause No. 49G16-1307-FD-48148
June 12, 2014
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Gabriel McQuay appeals his convictions for criminal confinement, as a Class D
felony, and battery, as a Class A misdemeanor, following a bench trial. McQuay raises a
single issue for our review, which we restate as whether the trial court abused its
discretion when it allowed a police officer to testify to the victim’s out-of-court
statements made to the officer. We affirm.
FACTS AND PROCEDURAL HISTORY
In the evening of June 5, 2013, Jerry O’Connor and his wife were driving in
Indianapolis when they observed a car parked next to a curb with its door open and two
people standing nearby. Because the O’Connors’ car windows were down, they heard a
man and a woman arguing and yelling at each other. Jerry then saw the man, whom he
later identified as McQuay, “push” the woman, R.S., into the car while “she was yelling
and screaming that he was hurting her.” Transcript at 17. In particular, Jerry heard R.S.
say, “he’s going to kill me.” Id. at 18. Jerry pulled his vehicle over about twenty-five
yards away from the couple, got out of his car, and “yelled for him to stop hurting her.”
Id. at 19.
Other people starting taking notice of the events, including Jill Andry. At the
same time and location she observed a car “pulled over to the side with a man punching
[a woman].” Id. at 37. Jill did not “get a good look at the man” but heard the woman
“yelling ‘he’s trying to kill me, he’s trying to kill me, he took my purse’ . . . over and
over.” Id. at 37-38. Jill called 9-1-1, and she observed the man “t[ake] off running
to . . . an apartment complex” nearby. Id. at 38.
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Jerry also observed McQuay go to the nearby apartment complex. Once McQuay
had left the scene, Jerry approached the vehicle to check on R.S. Jerry observed that “she
had some red marks on her,” that “she was hysterical,” and that she was visibly “shaken.”
Id. at 22-23.
Indianapolis Metropolitan Police Department (“IMPD”) Officer Travis Williams
arrived shortly thereafter. He approached R.S. and observed that she was “visibly upset.
She was shaking. She was crying and she was speaking in very rapid movements as if
she had been in some kind of struggle.” Id. at 43. R.S. identified herself to Officer
Williams, and he then verified her identity with IMPD. Officer Williams then asked R.S.
who her attacker was, and she identified McQuay. R.S. informed Officer Williams that
McQuay had fled “through” a nearby apartment complex, but Officer Williams did not
receive a tenant’s consent to search the area and he did not pursue a search warrant. Id. at
72.
On July 24, 2013, the State charged McQuay with criminal confinement, as a
Class D felony; domestic battery, as a Class A misdemeanor; and battery, as a Class A
misdemeanor. At the ensuing bench trial, Jerry and Jill testified to their observations and,
over McQuay’s objection, Officer Williams testified that R.S. had identified herself and
McQuay to him during the course of his investigation. The court found McQuay guilty
of criminal confinement, as a Class D felony, and battery, as a Class A misdemeanor.
The court then entered its judgment of conviction and sentence. This appeal ensued.
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DISCUSSION AND DECISION
On appeal, McQuay asserts that the trial court abused its discretion when it
admitted into evidence Officer Williams’ testimony regarding R.S.’s out-of-court
identification of herself and McQuay to Officer Williams. In particular, McQuay asserts
that Officer Williams’ testimony was inadmissible hearsay and that the admission of this
testimony violated his Sixth Amendment right to confront a witness.1 Our standard of
review of a trial court’s admission of evidence is an abuse of discretion. Speybroeck v.
State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court abuses its discretion if its
decision is clearly against the logic and effect of the facts and circumstances before the
court or if the court misapplies the law. See id.
Officer Williams’ testimony that R.S. identified herself and McQuay to him at the
scene was not inadmissible hearsay. As our Supreme Court has explained:
Hearsay is an out of court statement offered to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). It is inadmissible unless it falls under
an exception. Evid. R. 802. Among the exceptions to the hearsay rule is:
“A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition.” Evid. R. 803(2). Determining whether a statement constitutes
an excited utterance is within the trial court’s discretion and its ruling will
be reversed only for an abuse of that discretion. See Yamobi v. State, 672
N.E.2d 1344, 1346 (Ind. 1996).
For a hearsay statement to be admitted as an excited utterance, three
elements must be shown: (1) a startling event, (2) a statement made by a
declarant while under the stress of excitement caused by the event, and (3)
that the statement relates to the event. Id. This is not a mechanical test. It
turns on whether the statement was inherently reliable because the witness
was under the stress of an event and unlikely to make deliberate
1
McQuay makes passing reference to Article 1, Section 13 of the Indiana Constitution, see
Appellant’s Br. at 7, but McQuay in no way supports these references with cogent reasoning. As such,
any attempt by McQuay to raise an independent argument on appeal under Article 1, Section 13 has been
waived. See Ind. Appellate Rule 46(A)(8)(a).
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falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice § 803.102
(2d ed. 1995).
Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000).
Here, the State’s evidence demonstrates that R.S.’s statements identifying herself
and McQuay to Officer Williams at the scene were excited utterances and, therefore,
admissible statements. Jerry and Jill testified that they observed McQuay attacking R.S.,
which was a startling event for R.S. Jerry and Officer Williams testified that,
immediately following the startling event, R.S. was “hysterical,” “shaken,” “visibly
upset,” “crying,” and “speaking in very rapid movements.” Transcript at 22-23, 43.
Thus, R.S.’s statements to Officer Williams were made “while under the stress of
excitement caused by the event.” See Jenkins, 725 N.E.2d at 68. And R.S.’s
identification of herself and McQuay relates to McQuay’s attack on her.2 Accordingly,
we cannot say that the trial court abused its discretion when it concluded that R.S.’s
statements to Officer Williams were excited utterances and therefore admissible pursuant
to Indiana Evidence Rule 803(2). See, e.g., Sandefur v. State, 945 N.E.2d 785, 789 (Ind.
Ct. App. 2011) (“[The declarant’s] statement was made soon after she was injured, yelled
at, and cornered. Her demeanor showed that she was still under stress, and her statement
related to the startling event. Therefore, . . . [her] statement fits the excited utterance
exception.”).
Neither did Officer Williams’ testimony deny McQuay his Sixth Amendment right
to confront R.S. As we have explained:
2
The State also notes that Officer Williams arrived quickly on the scene, but that is not
dispositive to the analysis under Jenkins.
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In 2004, the Supreme Court of the United States held that, “[w]here
testimonial statements are at issue, the only indicium of reliability sufficient
to satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.” Crawford v. Washington, 541 U.S. 36, 68-69
(2004). Out-of-court, testimonial statements are admissible at trial only if
the declarant is unavailable to testify and the defendant has had a prior
opportunity to cross examine the declarant. Id. at 59.
“Testimonial” statements are, among other things:
“ex parte in-court testimony or its functional equivalent—that
is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially;” “extrajudicial
statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or
confessions;” and “statements that were made under
circumstances which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial.”
Jackson v. State, 891 N.E.2d 657, 659 (Ind. Ct. App. 2008) (discussing
Crawford, 541 U.S. at 51-52), trans. denied. However, the Confrontation
Clause “does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” Crawford, 541 U.S. at
59 n.9. Thus, if a statement is either nontestimonial or nonhearsay, 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) (footnotes omitted;
alteration and omission original), trans. denied.
R.S.’s statements to Officer Williams at the scene were nontestimonial. As the
United States Supreme Court has explained:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
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Davis v. Washington, 547 U.S. 813, 822 (2006). “In making the primary purpose
determination, standard rules of hearsay, designed to identify some statements as reliable,
will be relevant.” Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). “To determine
whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet
an ongoing emergency,’ which would render the resulting statements nontestimonial, we
objectively evaluate the circumstances in which the encounter occurs and the statements
and actions of the parties.” Id. at 1156 (citation omitted).
The crux of McQuay’s argument under the Sixth Amendment is based on Officer
Williams’ subjective impressions at the scene. But this is not the correct analysis.
Rather, we assess whether a defendant’s confrontation rights have been violated
objectively. Id.
The circumstances in which an encounter occurs . . . are clearly matters of
objective fact. The statements and the actions of the parties must also be
objectively evaluated. That is, the relevant inquiry is not the subjective or
actual purpose of the individuals involved in a particular encounter, but
rather the purpose that reasonable participants would have had, as
ascertained from the individuals’ statements and actions and the
circumstances in which the encounter occurred.
Id.
McQuay’s argument aside, the facts here objectively demonstrate that the primary
purpose of Officer Williams’ discussion with R.S. was to enable police assistance to meet
an ongoing emergency. First, Officer Williams’ encounter with R.S. was at the crime
scene rather than at the police station. See id. Second, because R.S.’s statements were
excited utterances, they “are considered reliable because the declarant, in the excitement,
presumably cannot form a falsehood.” Id. at 1157. Third, because McQuay had fled the
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scene of a violent attack and could not be located, a reasonable officer would have
considered the threat to R.S., first responders, and the public ongoing. See id. at 1158.
Fourth, almost immediately upon arriving at the scene Officer Williams asked R.S. her
identity and the identity of her assailant. There is no evidence suggesting that Officer
Williams told R.S. that he needed McQuay’s identification for purposes of prosecution,
and there is no reason to think that “a conversation which beg[an] as an interrogation to
determine the need for emergency assistance . . . evolve[d] into testimonial statements.”
Id. at 1159, 1161 (quotations omitted).
Finally, Officer Williams’ discussion with R.S. was informal. “[F]ormality
suggests the absence of an emergency and therefore an increased likelihood that the
purpose of the interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.” Id. at 1160 (quotations omitted). Here, Officer Williams
questioned R.S. in an “exposed, public area, prior to the arrival of emergency medical
services, and in a disorganized fashion. All of those facts make this case distinguishable
from the formal station-house interrogation in Crawford.” Id.
In sum, Officer Williams responded to a call of a woman being attacked. He did
not know why, where, or when the attack had occurred at the moment of his response.
Nor did he know the location of the attacker or anything else about the circumstances in
which the crime had occurred. His request for R.S.’s name and the identity of her
attacker was information that allowed Officer Williams to “assess the situation, the threat
to [his] own safety, and the possible danger to the potential victim and the public,
including to allow [him] to ascertain whether [he] would be encountering a violent
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felon.” Id. at 1166 (citations and quotations omitted). In other words, Officer Williams
obtained “information necessary to enable [him] to meet an ongoing emergency.” Id.
(quotations omitted).
Under an objective analysis, the circumstances of the encounter as well as the
statements and actions of R.S. and Officer Williams indicate that the primary purpose of
the interrogation was to enable police assistance to meet an ongoing emergency. As
such, R.S.’s identification of herself and McQuay were not testimonial statements. The
Confrontation Clause did not bar their admission at McQuay’s trial.
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
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