ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Jeffrey Modisett
Marion County Public Attorney General of Indiana
Defender Agency
Indianapolis, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
QUENTIS HARDIMAN )
)
Appellant (Defendant Below), )
)
)
v. ) No. 49S00-9901-CR-10
)
)
STATE OF INDIANA )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford
Cause No. 49G03-9712-CF-175669
April 14, 2000
SHEPARD, Chief Justice.
A jury found appellant Quentis Hardiman guilty of murder, a felony,
Ind. Code § 35-42-1-1. The trial court sentenced him to sixty-five years
in prison. On direct appeal, Hardiman raises the following issues:
1. Whether a detective’s investigative report containing multiple
hearsay was properly excluded;
2. Whether the identification an eyewitness made in court was
tainted by an unduly suggestive pre-trial photo array;
3. Whether the State violated discovery orders by disclosing a
fingerprint match only days before the trial began; and
4. Whether the evidence was sufficient to support the conviction.
Statement of the Facts
The evidence most favorable to the jury’s verdict revealed that on
July 13, 1997, several people held a barbeque at a local park and gathered
later in the parking lot of an apartment complex in Indianapolis. Demetria
Gillespie, her boyfriend Harvey Webber, and Quentis Hardiman were among
those present.
At about midnight, Torrence Terrell and two females arrived at the
parking lot in a Chevrolet Suburban. Terrell got out of his vehicle, but
he left its headlights on and the radio playing at a high volume. Several
people, including Hardiman, approached Terrell and asked him to turn off
his lights and turn down the music. Terrell refused, and he and Hardiman
had a verbal argument near the Chevrolet. Both Gillespie and Webber were
seated directly adjacent to this scene. After several minutes of argument,
Hardiman pulled out a handgun and shot Terrell multiple times at close
range. Terrell died.
Detective Thomas Lehn arrived shortly after the incident and attempted
to secure the crime scene. Some thirty minutes later, he took statements
from the two women who had accompanied the deceased. While they had not
witnessed the shooting, they informed the detective that they heard several
people in the crowd say that Webber was the shooter. The detective
mentioned these statements in his report, and the defense attempted to
admit the report at trial.
While investigating the crime scene, the police obtained several
fingerprints from Terrell’s car. The State initially tried to match these
prints to those of Hardiman, but was unsuccessful due to a problem with the
computer system. One week before trial the State again requested a print
comparison and found the two prints were a match. Alleging a discovery
violation, Hardiman sought to suppress this evidence, but the trial court
denied his motion.
I. Admissibility of Police Report
Hardiman first contends that the statements found within Lehn’s
police report properly fit within a hearsay exception and should have been
admitted at trial. In contrast, the State claims that the police report
contains multiple hearsay and that each instance of hearsay does not
qualify under an exception.
The trial court excluded the report, finding that the sources of the
information in it suggested a “lack of trustworthiness.” (R. at 485.) The
trial court’s discretion to admit or exclude evidence is broad, and this
Court will not reverse the trial court absent an abuse of that discretion.
See Platt v. State, 589 N.E.2d 222 (Ind. 1992). A trial court abuses its
discretion when its evidentiary ruling is clearly against the logic, facts
and circumstances presented. Id.
Hardiman is seeking to prove that Webber was, in fact, the shooter by
introducing a written report that records statements by witnesses not
present at trial that they heard unnamed members of a crowd say that it was
so. This is a tall order. When faced with multiple hearsay, “each part of
the combined statement” must conform with a hearsay exception. Ind.
Evidence Rule 805. In attempting to introduce the police report, Hardiman
must show that each assertion--the police report, the witness’s statement,
and the crowd’s shouting--fits within an exception to the hearsay rule.
As a starting point, the police report itself must qualify under one
of the hearsay exceptions. Rule 803(8) covers the admissibility of public
records and reports. When offered by the accused in a criminal case,
investigative reports by police personnel fall within this exception.
Evid. R. 803(8)(a). Because Hardiman offered the report, the first hearsay
problem is resolved favorably to him.
The statements of the two witnesses to the detective are more
problematic. In his brief, Hardiman fails to recognize the fact that the
statements attributed to the two women are hearsay. Instead, he moves on
to the utterances of the crowd immediately after the shooting, saying they
are “excited utterances.” We need not address this third hearsay problem,
for Hardiman’s mission stalls on the admissibility of the women’s
statements.
Detective Lehn interviewed the two women, Valetta and Regina Scurlock.
He recorded their statements individually, commencing about thirty minutes
after his arrival on the scene. Roughly speaking, the Scurlock statements
were given forty-five minutes after Terrell’s shooting. While the women
were emotionally shaken, they were neither crying nor agitated when the
detective interviewed them. (R. at 458-59.)
While Hardiman has not suggested a reason the Scurlock statements
might be admissible, we suspect the most promising hearsay exception would
be an “excited utterance” under Rule 803(2). An excited utterance is a
“statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event.” Evid.
R. 803(2).
The underlying rationale of the excited utterance exception is that
such a declaration from one who has recently suffered an overpowering
experience is likely to be truthful. Gye v. State, 441 N.E.2d 436 (Ind.
1982). While the event and the utterance need not be absolutely
contemporaneous, lapse of time is a factor to consider in determining
admissibility. Holmes v. State, 480 N.E.2d 916 (Ind. 1985). Similarly,
that the statements were made in response to inquiries is also a factor to
be considered. Gye, 441 N.E.2d at 438. Whether given in response to a
question or not, the statement must be unrehearsed and made while still
under the stress of excitement from the startling event. Yamobi v. State,
672 N.E.2d 1344 (Ind. 1996).
The heart of the inquiry is whether the declarants had the time for
reflection and deliberation. The trial court could reasonably have
concluded that they did. The women’s statements were given well after the
shooting, and the two were not directly connected to the shooting except as
bystanders. Moreover, the statements were not spontaneous declarations;
the women were waiting in line to give statements to the investigating
officer of an apparent homicide. This collection of circumstances
persuades us that the trial judge acted within the bounds of his discretion
in excluding the statements.
II. A Tainted Identification?
Hardiman next argues it was error to let Gillespie identify him in
court because her testimony was tainted by an impermissibly suggestive pre-
trial photo array.[1] The State responds by saying the prior identification
was not suggestive and that Gillespie had an independent basis for
identifying Hardiman.
Roughly one month after Terrell was shot, police approached Gillespie
concerning identification of the shooter, but she responded that she had
seen nothing. She later justified this silence by asserting that she
feared retribution for assisting the police. Not until November did she
come forward with information regarding the murder, and she subsequently
identified Hardiman. After she had selected Hardiman’s photo, detective
Spurgeon informed her that she had identified the man the police believed
shot Terrell. Asserting that this was an impermissibly suggestive
procedure, Hardiman moved in limine to suppress Gillespie’s in-court
identification. The trial court denied the motion.
It is certainly possible that a pre-trial identification may occur in
a manner so impermissibly suggestive and conducive to irreparable mistaken
identification that permitting the witness to identify the defendant at
trial may violate due process of law. Young v. State, 700 N.E.2d 1143
(Ind. 1998). On the other hand, a witness who participates in an improper
pre-trial identification procedure may nevertheless identify the defendant
in court if the totality of the circumstances shows convincingly that the
witness has an independent basis for the in-court identification. Id.
Factors to be considered in making this determination include the
amount of time the witness was in the presence of the perpetrator, the
distance between the two, the lighting conditions, the witness' degree of
attention to the perpetrator, the witness' capacity for observation, the
witness' opportunity to perceive particular characteristics of the
perpetrator, the accuracy of any prior description of the perpetrator by
the witness, the witness' level of certainty at the pre-trial
identification, and the length of time between the crime and the
identification. Utley v. State, 589 N.E.2d 232, 238 (Ind. 1992), cert.
denied, 506 U.S. 1058 (1993).
Hardiman argues that the policeman’s statement following Gillespie’s
identification was unduly suggestive. We need not decide whether the events
that transpired after the lineup violated Hardiman's Fourteenth or Sixth
Amendment rights, however, because we are satisfied that the totality of
the circumstances clearly and convincingly demonstrates that Gillespie had
an independent basis for identifying Hardiman at trial.
Gillespie testified that she had been in Hardiman’s company before
the incident, that she witnessed the verbal confrontation, that she was
seated directly across from the victim’s vehicle at the time of the
shooting, and that she saw Hardiman take out the weapon and fire it.
Moreover, Gillespie expressed certainty in her pre-trial identification
before any possible suggestive influence arose.
The trial court did not err. The events of Gillespie's pre-trial
identification were fully explored on cross-examination. It was up to the
jury to determine what weight to give Gillespie's in-court identification
in light of her earlier lack of cooperation. Harris v. State, 619 N.E.2d
577 (Ind. 1993).
III. Claim of Discovery Abuse
Hardiman next asserts as error the admission of fingerprint evidence
taken from the window of Terrell’s vehicle. Police had possession of these
fingerprints since the shooting, but did not give notice of a positive
match until a week before trial. In preliminary hearings, defense counsel
sought to exclude this evidence and, in the alternative, moved for a
continuance. The trial court denied both requests.
Hardiman argues that this delay and withholding of evidence amounts to
unfair surprise, gross misleading and bad faith. In opposition, the State
contends that an earlier positive identification of the fingerprints was
not possible due to computer problems, and that Hardiman received notice
immediately following the match.
If a party’s noncompliance with pre-trial discovery orders is grossly
misleading or done in bad faith, then evidence may be excluded. Nettles v.
State, 565 N.E.2d 1064 (Ind. 1991). A trial court has broad discretion in
ruling on issues of discovery and we will interfere only where an abuse of
discretion is apparent. Jenkins v. State, 627 N.E.2d 789 (Ind. 1993),
cert. denied, 513 U.S. 812 (1994).
Hardiman knew about the fingerprints for six months before trial, and
he was aware of the State’s difficulty in finding a positive match.
Several days before trial, both the State and defense requested an
individual comparison between the fingerprints taken from the scene and
Hardiman. The State gave notice of a positive match on the same day a
match was discovered.
Under these circumstances, it was within the discretion of the trial
court to admit this evidence or grant a continuance.
IV. Sufficiency of the Evidence
Hardiman’s final argument is that, had the police report been
admitted and Gillespie’s testimony and the fingerprint evidence been
excluded, there would have been insufficient evidence to support the jury’s
verdict.
As we stated above, we conclude that the trial judge did the right
thing on these matters. Moreover, the disputed evidence was not the sole
indicator of Hardiman’s guilt. Yet another eyewitness identified Hardiman
as Terrell’s assailant. Testimony from a single eyewitness is sufficient
to sustain a conviction. Coleman v. State, 694 N.E.2d 269 (Ind. 1998). In
light of this evidence, we conclude that a reasonable jury could have found
Hardiman guilty of murder.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ. concur.
-----------------------
[1] Gillespie had already identified Hardiman from the stand when defense
counsel objected to the later admission of her pre-trial identification on
grounds of cumulative evidence. On appeal, Hardiman does not contest this
second identification.
Hardiman v. State
Combined Opinion