ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lesa Lux Johnson Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
Charles Michael Hatcher, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 49S00-9908-CR-426
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark F. Renner, Magistrate
Cause No. 49G04-9807-CF-113463
October 5, 2000
SHEPARD, Chief Justice.
A jury found that appellant Charles Michael Hatcher murdered his
former girlfriend, Marilyn Patton. In this direct appeal, he contends that
the State did not give him reasonable notice of its intent to offer
evidence of prior bad acts under Indiana Rule of Evidence 404(b). This
case illustrates how courts can analyze the adequacy of such notice.
Facts and Procedural History
Hatcher and Marilyn Patton were living together as a couple for about
ten years. They had three children. Patton and the children moved away
from Hatcher and into the home of Patton’s mother in early October 1996.
Marilyn Patton met George Frederick on October 8, 1996, and they began
dating, seeing each other three or four times a week. Frederick
encountered Hatcher twice at Patton’s mother’s apartment. The second
encounter occurred when Frederick knocked on the apartment door and Hatcher
answered, saying, “I told you she don’t want to see you no more, so stay
away from her.” (R. at 481-82.) Frederick also testified that he received
a call at work from Hatcher, who stated, “[I]f I catch you together again
I’ll kill you both, and I won’t do three years.” (R. at 482.)
Patton asked Frederick to give her a pistol. Instead, he gave her a
knife, which she carried in her purse.
On November 20, 1996, Patton and Frederick went to a nightclub. They
left the club at about 11:15 p.m. and headed back to a friend’s home where
Patton had earlier parked her mother’s car. Patton reclaimed the car and
drove toward her mother’s apartment.
On the same evening, Hatcher called Patton’s mother several times
leaving messages for Patton. The calls began about 9 p.m. and ended at
about 11:30 p.m.
The next morning, Patton was found dead in her mother’s car, which
was parked by the side of the road. Her purse was still in the car; it
contained an emergency protective order issued three weeks earlier against
Hatcher.
An autopsy revealed that Patton died of multiple stab wounds. Her
body had a total of fifty-three stab and incised wounds, all inflicted with
a sharp object.
Hatcher filed a Motion for Notice of State’s Intent to Proffer 404(b)
Evidence on July 14, 1998. Eleven months later, on June 15, 1999, the
State filed its Notice of Intent to Introduce Evidence. The murder trial
began six days later.
As a preliminary matter, the court heard arguments regarding the
reasonableness of the State’s notice and the admissibility of the Rule
404(b) evidence of other crimes, wrongs, or acts listed in the notice. At
trial, Hatcher objected to the State’s presentation of the evidence in
question, and the court overruled his objection.
Hatcher was convicted of murder and sentenced to sixty-five years.
I. Indiana Rule of Evidence 404(b)
Hatcher argues that the trial court erred in admitting evidence of
prior threats Hatcher made to Patton, evidence of violence in their
relationship, and the emergency protective order Patton obtained against
Hatcher. (Appellant’s Br. at 5.) He characterizes this error as a violation
of Rule 404(b), which states:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during trial
if the court excuses pre-trial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
(Emphasis added.)
A. 404(b) Notice. Hatcher first claims that the State’s notice of
intent to submit certain 404(b) evidence, six days before trial, did not
comply with the reasonable notice provision in Rule 404(b). Hatcher also
mentions that “no good cause [was] shown by the [S]tate” for failing to
give earlier notice. (Appellant’s Br. at 5-7.)
Reasonable notice of intent to offer evidence of other crimes, wrongs,
or acts is a prerequisite for admissibility. Abdul-Musawwir v. State, 674
N.E.2d 972, 975 (Ind. Ct. App. 1996)(citing United States v. Barnes, 49
F.3d 1144, 1147 (6th Cir. 1995)). The defendant has the burden to make a
“reasonably understandable and sufficiently clear” request for such notice
from the State. Id. Moreover, a defendant who is not given notice after
making a proper request must object to the State’s 404(b) evidence at trial
to preserve any error for appeal.[1] Abdul-Musawwir, 674 N.E.2d at 975
(citing Butler v. State, 622 N.E.2d 1035, 1041 (Ind. Ct. App. 1993)).
Hatcher did both.
As the Court of Appeals has observed, there is no “‘hard and fast’
rule governing the time period in which the State should respond to an
appropriate request under 404(b).” Dixon v. State, 712 N.E.2d 1086, 1091
(Ind. Ct. App. 1999).[2] The reasonableness of the State’s notice is not
merely a function of its relation in time to either the defendant’s request
for notice or the date of trial. Determining whether the State’s notice
was reasonable requires an examination of whether the purpose of the notice
provision was achieved in light of the circumstances of a particular
case.[3] The purpose of the reasonable notice requirement in Rule 404(b)
“is to reduce surprise and to promote the early resolution of questions of
admissibility.” Abdul-Musawwir, 674 N.E.2d at 975 (citing United States v.
Long, 814 F.Supp. 72, 73 (D. Kan. 1993)).
The State’s notice indicated it intended to offer evidence that “the
victim sought and was granted an emergency protective order against the
defendant in October 1996. The defendant had threatened to kill the victim
in the [sic] October 1996 and November 1996. Their relationship had times
of violence.” (R. at 94.) The notice also indicated the State’s intent
to call six named witnesses to testify about 404(b) issues.
Hatcher was not surprised by this evidence. The record indicates that
the emergency protective order and evidence relating to Hatcher’s threats
to the victim, and the violence in their relationship, were previously
disclosed to Hatcher through the discovery provided by the State.[4] (R.
at 164-65.) As for the witnesses named in the notice and called to
testify, each name also appeared as a State’s witness in the information
filed on July 10, 1998. Hatcher acknowledged that he had also received
statements from three of these witnesses.
Similarly, the six-day notice given to Hatcher was sufficient to
promote the early resolution of questions of admissibility. As a
preliminary matter, the trial court heard Hatcher’s objections and argument
regarding the reasonableness of the State’s notice and the admissibility of
each item and witness contained in the notice, “one at a time.” (R. at 161-
66.) During this hearing, the State provided a summary of each witness’
testimony.
In these circumstances, the trial court was warranted in finding that
the State’s six-day notice was reasonable.
B. 404(b) Evidence. Hatcher next claims that the State’s offer of
the emergency protective order obtained by Patton against Hatcher did not
have an acceptable purpose according to Rule 404(b).[5] (Appellant’s Br.
at 7.) Such evidence may be admissible to prove such things as motive,
intent, and identity. Ind. Evidence Rule 404(b).
In Charlton v. State, 702 N.E.2d 1045, 1049 (Ind. 1998), we said:
When a defendant objects to the admission of evidence on the grounds
that it would violate Rule 404(b), the following test is applied: (1)
the court must determine that the evidence of other crimes, wrongs, or
acts is relevant to a matter at issue other than the defendant’s
propensity to commit the charged act; and (2) the court must balance
the probative value of the evidence against its prejudicial effect
pursuant to Rule 403.
This test is applied to ensure that the jury was “precluded from making the
‘forbidden inference’ that the defendant had a criminal propensity and
therefore engaged in the charged conduct.” Id. at 1050 (quoting Thompson v.
State, 690 N.E.2d 224, 233 (Ind. 1997)).
The emergency protective order was relevant to motive and the history
of Patton’s relationship with Hatcher. As the State indicated, the
existence of the protective order “goes to show the victim’s fear, and the
fact that they had difficulties.” (R. at 168.)
We have previously held that a protective order may be admitted to
indicate motive. See Fox v. State, 560 N.E.2d 648, 651 (Ind. 1990)(trial
court did not abuse its discretion in admitting temporary protective order
for purpose of proving defendant’s motive). In Fox, we also stated that
“evidence of motive is relevant in the proof of a crime.” Id. We have
even held that testimony indicating that a victim wanted to obtain a
protective order against the defendant was admissible “to show the
defendant’s motive for committing murder and not to create an inference
that defendant acted in conformity with his prior bad acts.” Charlton, 702
N.E.2d at 1050.
Next, we examine Hatcher’s claim that unfair prejudice flowing from
admitting the protective order substantially outweighed its probative value
for an abuse of discretion. Id.[6] The protective order was “relevant to
show the hostile relationship that existed between defendant and the victim
in order to prove motive for the murder.” Id. Patton feared for her
safety and sought protection against “being abused or threatened with
abuse” by Hatcher. (R. at 353; State’s Exh. 40.) The fact that the
protective order was found in Patton’s purse near her dead body tends to
increase the importance of the evidence.
The protective order, unlike the petition for the order, did not
contain Patton’s allegations as to why the order was needed. Rather, the
order instructed Hatcher to refrain from “abusing, harassing or disturbing
the peace of [Patton] by either direct or indirect contact....” (Id.) The
State presented other evidence that was far more damaging to Hatcher.
George Frederick testified that Hatcher threatened to kill both Frederick
and Patton if Hatcher caught them together again. The State also presented
an audio tape and a transcription of the tape containing demands and
threats Hatcher made to Patton.[7] In light of this and other damaging
evidence, we conclude the trial court did not err in admitting the
emergency protective order.
Admissibility of Autopsy Photographs
Hatcher also argues that the trial court erred when it admitted into
evidence eight autopsy photographs of Patton’s body. (Appellant’s Br. at
9.) He challenges the admission of the photographs on the basis that they
were cumulative and inflammatory.
“Autopsy photographs are admissible if (1) they provide relevant
evidence, and (2) their probative value is not substantially outweighed by
their tendency to impassion the jury against the defendant.” Malone v.
State, 700 N.E.2d 780, 783 (Ind. 1998). “We review the trial court’s
admission of photographic evidence for an abuse of discretion.” Turben v.
State, 726 N.E.2d 1245, 1247 (Ind. 2000).
The eight photographs depict a total of fifty-three stab and incised
wounds inflicted with a sharp object on nearly every area of Patton’s body.
The pathologist testified that the several pictures would aid his
testimony regarding the location, clustering and relative size of the wound
openings in the skin. This was a relevant and appropriate purpose.
See Harrison v. State, 699 N.E.2d 645, 647 (Ind. 1998)(photographs are
generally relevant if they depict a victim’s injuries or illustrate a
witness’ testimony).
The probative value of the eight autopsy photographs is not
substantially outweighed by their tendency to impassion the jury against
the defendant. Although some overlap exists, each photograph shows a
different view of the several wounds ranging from Patton’s head to her
lower leg. The photos do not depict the body, or the wounds, in an altered
or gruesome state. No error here.
Admissibility of Hearsay
Finally, Hatcher contends that the trial court erred in admitting
testimony by Camilla Jackson regarding Patton’s stated fear that Hatcher
would kill her. (Appellant’s Br. at 10.) Hatcher objected on grounds that
the statement was hearsay and irrelevant.
At trial, Camilla Jackson testified that she heard Patton tell a
police officer that “she was scared that [Hatcher] was going to kill her.”
(R. at 418.) Jackson indicated that on October 30, 1996, she called the
police when Hatcher came to her home, knocked on the door, and demanded to
talk to Patton, who was hiding in Jackson’s bathroom with her son.
The trial court allowed Jackson’s testimony as an exception to the
hearsay rule which permits,
[a] statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain and bodily health), but not including a
statement of memory or belief to prove the fact remembered or believed
unless it related to the execution, revocation, identification, or
terms of declarant’s will.
Ind. Evidence Rule 803(3). We review a trial court’s hearsay ruling for an
abuse of discretion. Ross v. State, 676 N.E.2d 339, 345 (Ind. 1996).
We have noted three situations where such testimony is admissible:
(1) to show the intent of the victim to act in a particular way, (2) when
the defendant puts the victim’s state of mind in issue, and (3) sometimes
to explain physical injuries suffered by the victim. Taylor v. State, 659
N.E.2d 535, 543 (Ind. 1995). We decline the State’s invitation to extend
this list to include the admissibility of a victim’s state of mind to show
the nature of the relationship between the victim and the defendant. (See
Appellee’s Br. at 12.) Although the nature of the relationship may be
relevant to show motive, we recently observed that motive does not
constitute an exception to the hearsay rule. Willey v. State, 712 N.E.2d
434, 443 (Ind. 1999).
Jackson’s statement was hearsay offered to prove the truth of the
matter asserted, that Patton was afraid that Hatcher would kill her.[8]
The trial court abused its discretion by admitting it under Rule 803(3).
Nevertheless, “[w]e disregard error in the admission of evidence
unless it affects the substantial rights of a party.” Id. at 444 (citing
Ind. Trial Rule 61). In light of the other evidence in this case regarding
Patton’s fear of Hatcher, including the emergency protective order, the
erroneous admission of Jackson’s testimony was harmless error. Its
probable impact on the jury was sufficiently minor so as not to have
affected Hatcher’s substantial rights. See id.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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[1] However, “If notice of the intent to use 404(b) evidence were so
crucial to a fair trial as to implicate due process considerations and
constitute fundamental error, waiver would not result from such procedural
defects.”
Abdul-Musawwir, 674 N.E.2d at 976.
[2] While no set rule governs when notice must be given in order to be
reasonable, in United States v. French, 974 F.2d 687, 694-95 (6th Cir.
1992), cert. denied, 506 U.S. 1066 (1993), the Sixth Circuit held that the
trial court did not abuse its discretion by regarding notice one week
before trial as reasonable.
[3] In Dixon, the court stated that “the circumstances of the particular
case should govern whether the advance notice provided by the State to
defense counsel is reasonable.” 712 N.E.2d at 1091.
[4] The emergency protective order was initially found in the victim’s
purse at the time the victim’s body was discovered. On August 21, 1998,
the State indicated in its Supplemental Notice of Discovery Compliance that
a photo of the contents of Patton’s purse may be used as an exhibit at
trial. The State’s Supplemental Notice of Discovery Compliance filed on
September 14, 1998, contained as an item the transcript of answering
machine messages.
[5] Note, Hatcher generally asserts that the trial court erred “in
admitting the objectionable evidence applying Indiana Evidence Rule
404(b).” (Appellant’s Br. at 7.) However, in his brief, Hatcher only
discusses his objection to the admissibility of the emergency protective
order. Therefore, his objections to other 404(b) evidence are waived.
Ind. Appellate Rule 8.3(A)(7).
[6] Rule 403 states, “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative
evidence.”
[7] One message from Hatcher stated, “I’m fed up. I’m through talking. You
have to do what you got to do and I got to do what I got to do. Now
believe me. I can get you before you can get me.” (R. at 435.)
[8] Hatcher incorrectly states in his appellate brief that the truth of the
matter asserted was that Hatcher killed Patton. (Appellant’s Br. at 11.)
Rather, the assertion made by the declarant was that she was afraid of
being killed by Hatcher.