FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Appellate Division Attorney General of Indiana
Office of the Public Defender
Crown Point, Indiana GEORGE P. SHERMAN
Deputy Attorney General
FILED
Indianapolis, Indiana
Apr 30 2012, 9:32 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
DONTEVIUS HUTCHERSON, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1109-CR-420
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas P. Stefaniak, Jr., Judge
Cause No. 45G04-1003-MR-4
April 30, 2012
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
This case addresses the unusual circumstance where, in a criminal trial, the State
attempts to use a witness’s prior statement to refresh his recollection, but the witness cannot
read. Dontevius Hutcherson was charged with multiple counts, including murder, attempted
murder, and robbery. When the police took a statement from Victor Lee, he said that he saw
Hutcherson shortly after the shootings and that Hutcherson told him that he had shot and
robbed two men. However, at trial, Lee claimed that he could not recall any of the
information regarding a conversation with Hutcherson. Instead, he claimed that he could
only remember that he had given a statement to police. Also, because he could not read, he
could only verify that the signatures on each page of the statement were his own. To refresh
Lee’s recollection, the prosecutor read Lee’s statement aloud in front of the jury, and the jury
subsequently found Hutcherson guilty as charged.
Hutcherson appeals, claiming that he was denied his constitutional right to confront
and cross-examine Lee. The State claims waiver due to insufficient objection, and
Hutcherson claims fundamental error. Finding no reversible error, we affirm.
Facts and Procedural History
On the night of January 19, 2010, Hutcherson was drinking alcohol and smoking
marijuana with several people at the home of Cyrus Barnes in Gary. Later, when they all left
the house to go to a nightclub, Hutcherson approached Barnes and a few other men by their
vehicle, stated that he had lost his money, and told Barnes that he needed to go back inside.
Several of the men waited outside while Barnes opened up the house so that Hutcherson
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could search for his money. Shortly thereafter, Hutcherson emerged from the house, yelled,
“F*** you all n******,” and fired multiple gunshots at two of the men, William Johnson and
Lloyd Holland. Tr. at 83. As Johnson lay on the ground with bullet wounds to the chest,
throat, shoulder, and leg, Hutcherson approached him, took his wallet, and left in his
girlfriend’s vehicle. The girlfriend, identified only as Michelle, and her friend, Anastasia
Tyson, were present at the time of the shooting. Hutcherson later cocked his gun at Tyson
and asked her what she had seen, and she twice stated that she had seen nothing. Tyson later
overheard Hutcherson talking to his mother on the phone, saying, “I f***** up.” Id. at 133.
Meanwhile, Johnson was transported to a nearby hospital and was treated for serious
injuries that have left him confined to a wheelchair. At the hospital, he told two relatives that
Hutcherson had shot him. He also saw Hutcherson shoot Holland, who subsequently died
from multiple gunshot wounds.
On March 8, 2010, Gary Police Detective Mark Davis took a statement from Victor
Lee, who said that Hutcherson told him that he had shot and robbed two men. On March 10,
2010, the State charged Hutcherson with murder, murder in the perpetration of a robbery,
class A felony attempted murder, class A felony robbery, class B felony aggravated battery,
and class C felony battery.
Hutcherson’s jury trial began on June 27, 2011. At trial, Lee authenticated his
signature on each page of his statement to police and testified that he could remember giving
the statement. However, he claimed that he could not recall the contents of any conversation
with Hutcherson, and the prosecutor sought to use the prior inconsistent statement to refresh
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his recollection. Because Lee is illiterate, the trial court ultimately allowed the prosecutor to
read the statement out loud to Lee in front of the jury. Afterward, Lee stated that he
remembered “half of it but not all[.]” Id. at 207.
The jury found Hutcherson guilty as charged, but the trial court entered judgment only
on the murder, attempted murder, and robbery counts. Hutcherson now appeals. Additional
facts will be provided as necessary.
Discussion and Decision
Hutcherson claims that the trial court’s decision to allow the prosecutor to read Lee’s
prior statement aloud in front of the jury to refresh Lee’s recollection violated his
constitutional right of confrontation. The State asserts that Hutcherson waived this issue on
appeal by failing to raise a specific, contemporaneous objection when the prosecutor read
Lee’s prior statement in court. Hutcherson counters by arguing that he raised a continuing
objection during a bench conference regarding the use of Lee’s entire statement. To preserve
an admissibility challenge for appeal, a defendant must make a contemporaneous objection at
the time the evidence is introduced at trial. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).
As a general rule, “a party must continue to object and obtain a ruling for each individual
instance of inadmissible evidence.” Hayworth v. State, 904 N.E.2d 684, 692 (Ind. Ct. App.
2009). The purpose of the rule is to allow the trial judge to consider the issue in light of any
fresh developments and also to correct any errors. Brown, 929 N.E.2d at 207. Failure to
raise a contemporaneous objection results in waiver. Id.
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That being said, Indiana recognizes continuing objections as a way to avoid the futility
and waste of time inherent in requiring repetition of the same unsuccessful objection each
time a party offers evidence of a given character. Hayworth, 904 N.E.2d at 691-92. The
decision whether to grant a continuing objection is a matter for the discretion of the trial
court, and objecting counsel must ensure that the continuing objection fully and clearly
advises the trial court of the specific grounds for objection. Id. at 692. If “the trial court
does not specifically grant the right to a continuing objection, it is counsel’s duty to object to
the evidence as it is offered in order to preserve the issue for appeal.” Id. (emphasis added)
(citation omitted).
Here, Hutcherson raised a “continuing objection to any line of questioning from
Victor Lee[.]” Tr. at 198. The trial court denied his request for a continuing objection,
stating,
[Y]ou need to make the specific objection because there may be things in that
statement that are inadmissible, so you need to make your individualized
objections. I would not necessarily let the whole statement in because I don’t
even know what’s in it. I’ll take one question at a time.
Id. Despite the trial court’s ruling, Hutcherson made only one objection during the course of
Lee’s testimony regarding his prior inconsistent statement. When the State subsequently read
aloud from Lee’s prior statement, Hutcherson did not object. As such, we conclude that
Hutcherson waived this issue for appeal.
In the alternative, Hutcherson asks us to review his claim under the fundamental error
exception to the contemporaneous objection rule. The fundamental error exception is
“extremely narrow, and applies only when the error constitutes a blatant violation of basic
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principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” Brown, 929 N.E.2d at 207 (citation omitted). This
means that the error must be “so prejudicial to the rights of the defendant as to make a fair
trial impossible.” Hayworth, 904 N.E.2d at 694 (citation omitted).
Hutcherson predicates his fundamental error claim upon his constitutional right of
confrontation. The Sixth Amendment to the United States Constitution prohibits the
admission of testimonial statements by a declarant who is absent from trial and therefore not
subject to cross-examination by the accused, unless the declarant is unavailable and the
accused had a previous opportunity to cross-examine the declarant. Crawford v. Washington,
541 U.S. 36, 59 (2004). The issue of what constitutes unavailability is a question of law, to
which we apply a de novo standard of review. Fowler v. State, 829 N.E.2d 459, 466-67 (Ind.
2005), cert. denied, abrogated in part on other grounds by Giles v. California, 554 U.S. 353
(2008). Even if the declarant is unable to recall the events in question, the Confrontation
Clause is satisfied as long as the declarant “appears for cross-examination at trial.” Id. at
464-66 (citation omitted). “The feigned or real absence of memory is itself a factor for the
trier of fact to establish, but does not render the witness unavailable.” Id. at 466. In short,
“[t]he Confrontation Clause … generates only an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish.” Id. at 469.
Indiana’s Confrontation Clause, found in Article 1, Section 13 of the Indiana
Constitution, differs from its federal counterpart in that it contemplates a face-to-face
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meeting in which the accused and the witness can see and recognize one another. Williams v.
State, 698 N.E.2d 848, 852 (Ind. Ct. App. 1998), trans. denied. “Although the accused must
have an opportunity to cross-examine the witness during the face to face confrontation, the
opportunity does not have to be seized or successful and the right can be waived.” Id. In
Williams, the witness was present at trial but was unable to remember what he had previously
said. The trial court held that the defendant was still afforded the opportunity to meet the
witness face to face and ask him questions.
Here, Lee was face to face with Hutcherson in court and recognized him as a person
whom he had known for about a year and a half. Although Lee could not initially recall any
specifics concerning the night of the incident, he eventually testified that he could remember
about half of the information contained in his prior statement. To the extent that his
testimony remained less than unequivocal, such vacillation goes to the weight and not the
admissibility of the evidence, a matter that is properly left for the trier of fact. Morgan v.
State, 445 N.E.2d 585, 587 (Ind. Ct. App. 1983). We reiterate that a defendant’s right to
confront and cross-examine a witness does not guarantee the quality of the cross-
examination. Williams, 698 N.E.2d at 852. Consequently, Hutcherson’s confrontation with
and cross-examination of Lee, such as it was, did not violate Hutcherson’s constitutional
rights.
We now address the unusual circumstance created by Lee’s illiteracy. At trial, Lee
testified that he knew Hutcherson and that he recalled giving a statement to police. The
statement contained Hutcherson’s narrative of the events as he recounted them to Lee shortly
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after they occurred on the night of January 19, 2010. Lee gave his statement to Detective
Mark Davis seven weeks later, on March 8, 2010. Detective Davis later testified that the
statement accurately reflected what Lee had told him. Tr. at 271-72. When Lee was
presented with his prior statement in court, he was able to authenticate his signature at the
bottom of each page. Beyond that, however, he claimed that he could not recall anything
concerning what Hutcherson had said to him on the night of the incident. At that point, the
State sought to use his prior statement to refresh his recollection. Ordinarily, this is
accomplished by handing the witness his prior statement, asking him to examine the writing,
and then asking whether such examination has refreshed his memory. Thompson v. State,
728 N.E.2d 155, 160 (Ind. 2000) (citing 13 ROBERT LOWELL MILLER, JR., INDIANA
PRACTICE: INDIANA EVIDENCE § 612.101 at 225-26 (2d ed. 1995)). However, because Lee
is illiterate, the prosecutor could not merely hand him the statement to read silently as
contemplated by Indiana Evidence Rule 612.
A witness’s act of reading his own prior statement under Rule 612 is foundational in
the sense that before proceeding, counsel must establish whether such reading was successful
in refreshing the witness’s memory. See 13 ROBERT LOWELL MILLER, JR., INDIANA
PRACTICE: INDIANA EVIDENCE § 601.101 at 274-75 (3d ed. 2007). In circumstances
involving a blind or illiterate witness, counsel must improvise and may attempt to refresh the
witness’s recollection by reading the statement aloud. If the jury is present during the
reading, its members learn the document’s contents before the foundation has been laid.
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Thus, to avoid potential prejudice, the preferred methodology would be to excuse the jury
prior to such a reading.
Here, the trial court held a bench conference and discussed with counsel the dilemma
created by Lee’s illiteracy. Thereafter, without excusing the jury, the trial court allowed the
prosecutor to refresh Lee’s recollection by reading aloud from his statement:
Q. Would you like me to read it to you?
A. Yes, sir.
Q. Your answer was, “Bubba [Hutcherson] told me that he got into it with
some dudes from Aetna and he said that he told this dude, I don’t know
his name, to give me back my hundred dollars. And the dude said that
he didn’t have his hundred dollars, so Bubba [Hutcherson] said that he
took a gun from Mike Lips[c]omb’s waist and shot the dude, bam-bam.
Then he shot the other dude he was with, bam-bam. Then he said he
shot both the dudes two more times and that’s when Mike Lips[c]omb
ran to the car and Bubba [Hutcherson] said he then went into one of the
dude’s pockets and took a wallet out of there. And he jumped into his
girl’s car named Michelle. Michelle drives a black four door Charger.
The two back door windows are tinted and the back window is tinted.
That’s when he drove to Dory Miller, and he saw me standing outside
with my cousins and drove up and asked me what I got on a bottle? I
jumped in the car with him and then we went to the liquor store and
that’s when we went to his girl, Michelle’s house. We was drinking
and that’s when he told me the story.” Do you recall giving that answer
to Detective Mark Davis?
A. I don’t recall everything that you said, I don’t recall all of it though.
Q. You don’t recall any of it?
A. I remember half of it but not all—
Q. Okay. So you remember half of it?
A. Yeah.
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Tr. at 206-07.
We conclude that the better method would have been for the trial court to excuse the
jury prior to the actual reading of the statement in order to avoid potential prejudice.
Nevertheless, here, Lee’s prior statement was not the bedrock upon which the State’s case
against Hutcherson was built. Instead, it merely corroborated other testimony on such issues
as Hutcherson’s anger over losing his money, Johnson’s identification of Hutcherson as his
and Holland’s shooter, Tyson’s testimony that she heard gunshots coming from the direction
where only the two victims and Hutcherson were, and Tyson’s testimony that Hutcherson had
possession of a gun shortly after the shootings because he threatened her with it. As such,
Lee’s statement was cumulative, and any error attributable to its use was therefore harmless.
Borders v. State, 688 N.E.2d 874, 878 (Ind. 1997).
In sum, we conclude that Hutcherson was afforded the opportunity to meet and
question Lee face to face and therefore was not deprived of his right of confrontation under
either the federal or state constitutions. Likewise, due to the cumulative nature of the
evidence contained in Lee’s prior statement, Hutcherson was not prejudiced when it was read
aloud to the jury. Accordingly, we affirm.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
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