MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2015, 8:03 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles W. Lahey Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lamar Allen Colley, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
71A05-1501-CR-40
v. Appeal from the St. Joseph Superior
Court
State of Indiana, Cause No. 71D03-1206-FD-532
Appellee-Plaintiff
The Honorable Jerome Frese, Judge
Friedlander, Judge.
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[1] Lamar Colley was convicted of Strangulation (Count I)1 and Criminal
Confinement (Count II),2 both class D felonies. Colley appeals his convictions
and presents the following restated issues for our review:
1. Did the trial court err in admitting two hearsay statements?
2. Did the trial judge fail to remain impartial by actively intervening on the
State’s behalf?
[2] We affirm.
[3] The following are the facts most favorable to the convictions. Colley and
Michelle Garrett dated and lived together for several months. Problems
developed in the relationship, including pending domestic battery charges,
which caused Garrett to move out in March of 2012. On April 27, 2012,
Garrett and Colley reconciled and went out for drinks before returning to
Colley’s house.
[4] At the house, Colley wanted to know if Garrett had decided to drop the
impending battery charges against him. When she expressed uncertainty and
1
Ind. Code Ann. § 35-42-2-9 (West, Westlaw 2013) in effect at the time this offense was committed classified
as a class D felony this statute has since been revised and in its current form reclassifies this as a Level 6
felony. See I.C. 35-42-2-9 (West, Westlaw current with all 2015 First Regular Session of the 119th General
Assembly legislation). The new classification, however, applies only to offenses committed on or after July 1,
2014. See id. Because this offense was committed before then, it retains the former classification.
2
I.C. § 35-42-3-3 (West, Westlaw 2013) in effect at the time this offense was committed classified as a class D
felony this statute has since been revised and in its current form reclassifies this as a Level 6 felony. See I.C.
35-42-3-3 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly
legislation). The new classification, however, applies only to offenses committed on or after July 1, 2014. See
id. Because this offense was committed before then, it retains the former classification.
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requested that he let her leave, Colley became angry. Colley cursed at Garrett,
told her she could not leave, slapped her, and grabbed her by her neck with both
hands. When Garrett told Colley again that she wanted to leave, he took her
phone and hid it. He then removed his shirt and twisted it around Garrett’s
neck until she could not breathe. Colley told Garrett to say goodbye to her
children and grandchildren because she would never see them again. Colley
stopped choking Garrett when she became unconscious. At some point Garrett
regained consciousness, Colley then grabbed her hair, and dragged her from the
kitchen to the bedroom. In the bedroom Colley again started choking her with
his hands as she tried to force him off her.
[5] After several hours, Colley became distracted; Garrett grabbed her car keys and
fled the house. At around 5:00 a.m., on April 28, 2012, Garrett entered a 7/11
store and asked the store clerk, Todd Mead, to call the police. Mead noticed
that Garrett was not wearing shoes and had red marks around her neck.
Garrett told Mead that her boyfriend had choked her. Frightened that someone
may have followed Garrett, Mead positioned himself in front of the door and
called the police. Mead relayed questions from the 911 operator to Garrett, and
then repeated Garrett’s responses to the 911 operator. Within two minutes of
the dispatch, Officer Jeremy Tyler arrived at the 7/11. Garrett, while crying,
told him that she was repeatedly strangled and held against her will by Colley at
his house.
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[6] Colley was ultimately charged with strangulation and criminal confinement and
a bench trial ensued. At trial, the following exchanged occurred during Mead’s
direct examination:
[Prosecutor]: State moves to admit States Exhibit 13[3] and publish to
the Court.
[Defense]: Judge, I’m going to object. I think its hearsay.
[The Court]: Well, sure it is if it’s purporting to be repetition of what a
third party said, but I’m not sure that disposes of the question. Do you
have some exception?
[Prosecution]: I think Mr. Mead clearly described that the victim—
[The Court]: Do you have a two word exception?
[Prosecution]: Exited utterance to hearsay.
[The Court]: Thank you. Overruled. Excited utterance.
Transcript at 88. During Mead’s direct examination, the defense made several
more objections on hearsay grounds; the trial court overruled each objection.
[7] Next, the State called Officer Tyler to the stand and asked him to tell the court
what Garrett had told him when he arrived at the 7/11. Anticipating an
objection on hearsay grounds, the court interjected and explained the testimony
was admissible under the excited utterance exception.
3
Exhibit 13 is the recording of Mead’s conversation with the 911 operator.
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[The Court]: And your objection is hearsay, and my ruling is its
excited utterance. Because it appears to me by inference that her trip
to the 7-Eleven didn’t consume much time at all, maybe a couple
minutes. The dispatch went out over the air—I mean over the wire to
the dispatcher pretty quickly. He got the dispatch pretty quickly. He
got the dispatch over the airwaves and responded immediately and
said he was there within two minutes, so I find it’s fresh in terms of
time for the excited utterance exception. There hasn’t been time to
calm down.
Id. at 104. The trial concluded on December 11, 2012, and Colley was found
guilty as charged.
1.
[8] Colley contends the trial court improperly applied the excited utterance
exception to the rule against hearsay on two occasions. First, the trial court
admitted into evidence a recording of a conversation between Mead and the
911 operator. In this recording, Mead relayed questions to Garrett and
repeated her responses to the 911 operator. Second, the trial court admitted the
police officer’s testimony concerning what Garrett told him under the excited
utterance exception to the rule against hearsay.
[9] A trial court has broad discretion to admit or exclude evidence. Blount v. State,
22 N.E.3d 559 (Ind. 2014). We will not reverse such a decision unless it is
clearly contrary to the logic and effect of the facts and circumstances of the case
or misinterprets the law. VanPatten v. State, 986 N.E.2d 255 (Ind. 2013).
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[10] A hearsay statement is one “other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Ind. Evidence Rule 801(c). Hearsay statements are not
admissible, except pursuant to certain exceptions within the Rules of Evidence.
Evid. R. 802. For a hearsay statement to be admitted as an excited utterance
under Evid R. 803(c), the following elements must be shown: (1) A startling
event occurred; (2) a statement was made by a declarant while under the stress
of excitement caused by the event; and (3) the statement related to the event.
McQuay v. State, 10 N.E.3d 593 (Ind. Ct. App. 2014). This test is not
“mechanical” and admissibility turns “on whether the statement was inherently
reliable because the witness was under the stress of the event and unlikely to
make deliberate falsifications.” Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct.
App. 2012).
[11] Colley argues the 911 recording constitutes double hearsay and therefore its
admission, over a timely objection, was an abuse of discretion. “If a statement
involves hearsay within hearsay, also known as multiple hearsay or double
hearsay, the statement may still be admitted if “each layer of hearsay” qualifies
“under an exception to the hearsay rule[.]’” Id. During the 911 call, Mead
relayed the operator’s questions to Garrett and then repeated Garrett’s response
to the operator. The court admitted the 911 recording into evidence without an
explanation of what exceptions to the rule against hearsay applied to each
“layer” of the recording. We conclude that the first “layer” of the recording,
Garrett’s statements to Mead, are admissible under the excited utterance
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exception to the rule against hearsay. Additionally, the second “layer” of the
recording, Mead’s statements to the 911 operator, are admissible under the
present sense impression exception to the rule against hearsay.
[12] Hearsay statements may be admitted into evidence if they qualify as present
sense impression, which is defined as “[a] statement describing or explaining a
material event, condition or transaction, made while the declarant was
perceiving the event, condition or transaction or immediately thereafter.” Evid.
R. 803(1). “This rule requires that the statement describe or explain the event
or condition during or immediately after its occurrence, and the statement must
be based upon the declarant’s perception of the event.” Palacios v. State, 926
N.E.2d 1026, 1032 (Ind. Ct. App. 2010).
[13] In Amos v. State, 896 N.E.2d 1163 (Ind. Ct. App. 2008), the appellant contended
the court abused its discretion by admitting statements from a telephone
conversation. The appellant argued that the present sense impression exception
was not applicable. Id. The court explained that the proximity in time between
the incident and the statements from the telephone conversation, which
described the event, satisfied the requirement for the present sense impression
exception. Id. This court held the repetition of statements immediately after
hearing them was admissible under the present sense impression exception. Id.
[14] For the same reason, we conclude that each layer of the recording was
admissible under recognized hearsay exceptions. Garrett’s statements to the
store clerk were admissible under the excited utterance exception and Mead’s
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statements to the 911 operator were admissible under the present sense
impression exception. The immediacy of the clerk’s repetition provided no
opportunity for him to fabricate.
[15] Colley also contends the court erred admitting Officer Tyler’s testimony
pursuant to the excited utterance exception. According to Colley, the excited
utterance exception is not applicable to Officer Tyler’s testimony because his
statements were unreliable. He argues the statements were made at a time
separate from the incident and made for the single purpose of police
investigation and therefore lack reliability.
[16] The excited utterance exception applies to statements “relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by an event or condition.” Palacios v. State, 926 N.E.2d at 1031. The
declarant’s statements are deemed reliable where the circumstances suggest that
the declarant is incapable of thoughtful reflection or deceit due to the
excitement of the startling event. Palacios v. State, 926 N.E.2d. 1026.
[17] In Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000), our Supreme Court held that
“[t]he amount of time that has passed between the event and the statement is
relevant but not dispositive” with respect to the applicability of the excited
utterance exception. Officer Tyler arrived at the convenience store within two
minutes after he was dispatched. Garrett was still crying and breathing heavily
as she relayed her story to Officer Tyler. Garrett’s statements to Officer Tyler
therefore qualified as excited utterances. We conclude Officer Tyler’s
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testimony and the 911 recording are both admissible under recognized hearsay
exceptions.
[18] Nevertheless, even if the 911 recording and Officer Tyler’s testimony were
inadmissible hearsay; the admission of that evidence was harmless. Errors
regarding the admission of evidence—including double hearsay—are harmless
unless they affect the substantial rights of a party. Davis v. Garrett, 887 N.E.2d
942 (Ind. Ct. App. 2008). “Reversible error cannot be predicated upon a trial
court’s erroneous admission of evidence that is merely cumulative of other
evidence that has already been properly admitted.” Id. at 947.
[19] Officer Tyler’s testimony and the 911 recording are merely cumulative of the
trial testimonies of Garrett and Mead. The admission of Officer Tyler’s
testimony and the 911 recording did not affect Colley’s substantial rights, and
therefore reversal is not warranted.
2.
[20] Colley contends the trial court judge failed to remain impartial because he
assisted the State in overcoming an objection made by the defense. “A criminal
defendant has a right to a fair trial before an impartial judge.” Fox v. State, 997
N.E.2d 384, 390 (Ind. Ct. App. 2013). When the impartiality of the trial judge
is challenged on appeal, we will presume the judge is unbiased and
unprejudiced. Smith v. State, 770 N.E.2d 818 (Ind. 2002). To rebut that
presumption, the defendant “must establish from the judge’s conduct actual
bias or prejudice that places the defendant in jeopardy.” Id. at 823.
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[21] To assess whether the judge has crossed the barrier of impartiality, the court
will examine both the judge’s actions and demeanor. Timberlake v. State, 690
N.E.2d. 243 (Ind. 1997). A trial judge has the authority to make impartial
statements about the general admissibility of evidence. Fox v. State, 997 N.E.2d.
384.
[22] During trial, the defense objected to the admission of Exhibit 13, which
contained Mead’s recorded conversation with the 911 operator. The objection
was on hearsay grounds and the trial judge agreed that the recording was in fact
hearsay. When the prosecutor did not answer the objection with an exception,
the trial judge asked, “Do you have a two word exception?” to which the
prosecutor responded, “[e]xcited utterance exception to hearsay.” Transcript at
88. The trial judge overruled the defense’s objection and the 911 recording was
admitted into evidence.
[23] Colley argues that the trial court’s question to the State was asked for the sole
purpose of overcoming an objection, which illustrated actual bias in favor of the
State, and placed the defendant in jeopardy. This court has held that “[a]n
adverse ruling alone is insufficient to show bias or prejudice.” Massey v. State,
803 N.E.2d 1133, 1139 (Ind. Ct. App. 2004).
[24] Colley’s argument that the judge assisted the prosecution in overcoming an
objection, which in effect allowed the admission of Exhibit 13, is insufficient to
prove that the trial judge failed to remain impartial. Colley received a full and
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fair opportunity to litigate in front of an impartial judge. After reviewing the
record, we find insufficient support for Colley’s claim of bias.
[25] Judgment affirmed.
Baker, J., and Najam, J., concur.
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