MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be regarded as May 05 2017, 9:01 am
precedent or cited before any court except for the
CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool Curtis T. Hill, Jr.
Warsaw, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General of Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Buddy J. Livesay, May 5, 2017
Appellant-Defendant, Court of Appeals Case No.
85A02-1610-CR-2462
v. Appeal from the Wabash Circuit
Court.
The Honorable Robert R. McCallen
State of Indiana, III, Judge.
Appellee-Plaintiff. Trial Court Cause No. 85C01-1607-
F5-777
Darden, Senior Judge
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Statement of the Case
[1] Buddy J. Livesay appeals from his convictions after a jury trial of one count of
1
Level 5 felony criminal confinement, and one count of Level 6 felony domestic
2
battery. We affirm.
Issues
[2] Livesay presents the following issues for our review:
I. Whether the trial court abused its discretion by allowing
the State to present the testimony of a rebuttal witness who
was not included on the State’s witness list before trial.
II. Whether the trial court abused its discretion by denying
Livesay’s motion for a mistrial when the victim interrupted
closing arguments with an emotional outburst, instead
choosing to admonish the jury.
Facts and Procedural History
[3] In July of 2016, Livesay, who was twenty-seven years old and unemployed at
the time, lived with his mother, Rebecca, in her single-story home located in
Urbana, Indiana. Gladys Kain, who was twenty-five years old, had been
Livesay’s girlfriend for almost five years by that time. She and her six-year-old
son, Michael, lived with Livesay and Rebecca for approximately two years
prior to the incident at issue.
1
Ind. Code § 35-42-3-3(b) (2013).
2
Ind. Code § 35-42-2-1.3(b) (2016).
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[4] Gladys testified and described Livesay’s behavior as controlling. According to
her, he did not allow her to work and she was not allowed to have her own cell
phone. If she purchased a phone, he would destroy it. He would not allow her
to visit with her family and did not allow her to have her own personal friends.
He also had issues with the type of clothing she wore. Gladys summed up his
behavior as the result of having an insecure personality, which was revealed in
episodes displaying his jealousy of others.
[5] At around 5:00 p.m. on July 7, 2016, Livesay, Gladys, and Michael got into
Livesay’s 1987 white Ford Ranger truck to visit Livesay’s friends, Dave Shankle
and John Garrett. The front seat of the truck had a bench seat. Livesay drove,
Gladys sat in the passenger seat, and Michael sat between the two. The three
frequently visited these friends who lived in Wabash, Indiana.
[6] After arriving at the house, the group stayed outside, playing basketball with
Michael. The adults drank beer that John had purchased. At some point, Dave
may have gone inside the house. Gladys, at some point, had to use the
restroom after having been there for more than an hour and a half and
consuming one beer. When she came out of the house, she found Livesay
sitting in a chair next to the garage, while John and Michael played basketball.
She could tell that he was unhappy.
[7] Upon seeing her, Livesay appeared angry and started yelling at Gladys. He
shouted for all to hear that Gladys was a whore and that she was “probably in
there f***ing him,” meaning Dave. Tr. Vol. II, p. 70. He took a can of beer
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that Gladys had intended to drink, squished the can, and poured the beer all
over her shirt. Id. at 94. After that tirade, Livesay told Gladys that they needed
to leave. Complying, she and Michael took their customary places on the front
seat of Livesay’s truck.
[8] As Livesay drove away from the gathering, several times he reached over young
Michael’s head to punch his mother Gladys’ face with a closed fist. Gladys
repeatedly begged Livesay to stop the truck to let her and Michael get out. She
also opened the passenger door and screamed for help. Livesay responded by
speeding up and driving through stop lights and stop signs to prevent them from
getting out of the truck.
[9] David Harrell and his wife, Mary Beth, were outside their house watering
flowers in the yard when they observed Livesay’s truck drive past. The truck
appeared to be moving at a high rate of speed, and they noted that the
passenger door was somewhat open. Harrell heard a female voice from inside
the truck screaming, “Help. Help. I need help.” Id. at 40. Harrell ran inside the
house to grab his cell phone and called 911 to report what he had seen and
heard. He also provided a description of the vehicle and the direction it was
traveling.
[10] Next, Harrell got into his car and drove several miles north of his house in the
direction he saw the truck being driven. He was concerned that the passenger
or passengers of the truck might have fallen out or had been allowed to exit the
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truck without means of transportation. Harrell never saw Livesay’s truck again
and did not find anyone on the side of the road. He then returned home.
[11] Harrell shared with his wife his amazement that the passenger or passengers
had not fallen out of the truck. He then decided to investigate to determine
whether an object had fallen out of the truck through the open door. He walked
to the intersection and found a white piece of paper in the center of the road
along the path the truck had traveled. The paper was an old paystub bearing
both a name and address.
[12] Harrell called the Wabash County Sheriff’s Department to give them this new
information and identified himself as the person who had called 911 earlier
about the incident he had witnessed. An officer was sent to retrieve the
evidence. The paystub exhibited Livesay’s name and personal information.
[13] Meanwhile, Livesay had driven Gladys and Michael to Rebecca’s house. Once
they were inside, Livesay head-butted Gladys several times in front of Michael,
who was upset and crying. Attempting to defend herself from Livesay, she
picked up a candle holder—a sconce or a votive—and threw it at Livesay.
Rebecca, who worked two jobs, one full-time and one part-time, was present
during this incident and had been relaxing before the three arrived home.
[14] Gladys testified that she did not have a telephone and Rebecca would only
allow her to use her cell phone when Livesay was away from the house. After
the outburst, Livesay left the house at Rebecca’s urging or insistence. Rebecca
then allowed Gladys to call 911. Because Gladys was out of breath and crying,
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she terminated the call due to her inability to speak. The 911 dispatcher called
the number to follow up on the terminated call and spoke with Rebecca, who
answered the phone.
[15] When Livesay left the house, he left in his truck. Deputy Eric Riggs of the
Wabash County Sheriff’s Department, who had responded to Harrell’s 911 call,
observed a truck matching the description given to him by Harrell. The officer
pulled Livesay’s truck over. Another deputy proceeded to Rebecca’s home and
spoke with Gladys. Gladys had sustained a black eye and other injuries to her
head and face. Photographs were taken of her injuries and admitted in
evidence at trial.
[16] Livesay was arrested and charged with criminal confinement and domestic
battery, and the charge was enhanced due to the allegation that it was
committed in the presence of a child. At the conclusion of the two-day jury
trial, Livesay was found guilty as charged. The trial court sentenced him to five
years in the Department of Correction for the criminal confinement conviction
to be served concurrently with the conviction for domestic battery, for which
Livesay received a two-year sentence. This appeal ensued.
Discussion and Decision
I. Rebuttal Witness and 911 Recordings
[17] Livesay challenges the admissibility of the testimony of the State’s rebuttal
witness and the admissibility of the 911 recordings for which a foundation was
laid during the rebuttal witness’ testimony. He claims that the rebuttal witness’
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testimony should have been excluded because she was not named on the State’s
pretrial witness list. If her testimony had been excluded, no foundation could
have been laid for the admissibility of the recordings.
[18] A trial court has broad discretion to rule on the admissibility of evidence.
Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). Appellate review focuses on
whether there was an abuse of that discretion. Id. We will reverse the trial
court’s decision only when admission of the evidence is clearly against the logic
and effect of the facts and circumstances and the error affects a party’s
substantial rights. Id.
[19] Additionally, a trial court is granted wide discretion in deciding whether to
allow testimony from a witness not listed on a pretrial discovery witness list.
Liddell v. State, 948 N.E.2d 367, 370 (Ind. Ct. App. 2011). “Although discovery
matters are generally discretionary with the trial court it is ordinarily considered
improper for a trial court to allow a witness who was not listed in discovery to
testify unless the remedy of a continuance is granted to the other party to meet
such testimony.” Mauricio v. State, 476 N.E.2d 88, 94 (Ind. 1985). The
exception to this rule is where a witness is brought in on rebuttal. Id.
[20] Prior to trial, the State provided the defense with copies of the 911 recordings.
The recordings, which were later admitted during rebuttal as Exhibit 11,
contained the first call that was terminated, and the dispatcher’s call-back, re-
establishing communication, this time with Rebecca. In the ensuing
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conversation between Rebecca and the dispatcher, Rebecca can be heard saying
the following:
Rebecca: My son..My son and his girlfriend I guess. I am not
sure exactly what happened other than it is apparent
he must have smacked her and then he came in here
and they’re arguing and the next thing I know
sconces are flying through the air. . .
Dispatcher: Is she injured?
Rebecca: Her eye. She said he hit her in the eye before she
got in the house.
Dispatcher: Does she need an ambulance?
Rebecca: No.
Dispatcher: Do you want officers?
Rebecca: Do you want an officer here or do you want me to
take you to your sister’s. That’s up to you dear.
Exhibit 11, 00:51-01:32. The dispatcher, Darcy Corn, asked Rebecca if Livesay
was still at the house. Rebecca replied that he was not and that he must have,
as she put it, run off again. Corn indicated that Rebecca and Gladys should
remain there and an officer would be sent to the address because a 911 call had
been placed.
[21] The only witness to testify for the defense was Rebecca. During her testimony,
however, which was just two months after the altercation, she testified factually
different about the incident. She testified that on the day of the incident she
had to work only one of her two jobs, and that her shift ended between 2:30 and
3:00 p.m. After coming home, she took a forty-five minute nap, did a few
things around the house, talked with her employer at her part-time job about
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future scheduling, and took a shower. She testified that Gladys was standing in
the kitchen when she got out of the shower and that Gladys was yelling at her.
She asked Gladys why her shirt was wet, and Gladys explained that Livesay
had poured beer on her because he was upset that she was bringing an open
container in his truck.
[22] Rebecca said that Livesay entered the house to contact a cousin in order to
avoid arguing with Gladys any more. She testified that Livesay told Gladys not
to argue with his mother. After that, he left the house. She stated that Gladys
changed from her beer-drenched clothes and then made a couple of phone calls,
or used the cell phone to send messages on Facebook. Rebecca testified that
afterward, she and Gladys went out of the house to smoke a cigarette, at which
time she told Gladys that she needed to find somewhere else to stay that night.
[23] Rebecca then testified that Livesay returned after being gone for thirty to thirty-
five minutes. She stated that Gladys was still screaming and that Livesay was
trying to keep his distance from Gladys. Rebecca was not scheduled to work
her part-time job that evening. However, she claimed that Gladys was upset
because both she (Rebecca) and Livesay were going to be gone from the house.
She testified that she considered Michael to be her grandson; although she had
other grandchildren, she spent more money supporting him since he lived with
her. Rebecca further testified that she offered to take Gladys to the Sheriff’s
Department in order to obtain assistance at a shelter.
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[24] Rebecca testified that as she was getting her keys to give Gladys a ride
somewhere, she received a call on her cell phone, which she claimed she did
not realize had been returned to her purse. She stated that she handed the
phone to Gladys, who declined to take it. Subsequently, Rebecca answered the
second telephone call and discovered it was a 911 dispatcher returning a
terminated call. She denied telling an officer that Gladys asked to use the
phone to call 911.
[25] When asked if there was any physical contact between Gladys and Livesay on
July 7th, Rebecca testified that Livesay had acted like he was going to head-butt
Gladys, but she believed he had not done so since Gladys did not move in
response to his action. Rebecca then testified that the next thing that happened
was Gladys throwing the candle holders at Livesay.
[26] Therefore, at the conclusion of Rebecca’s testimony, her credibility became a
critical issue because it contradicted not only the 911 recordings, which were
previously disclosed to the defense, but Gladys’ testimony as well.
[27] Before Corn’s rebuttal testimony, the defense objected to her testimony on the
basis that her name did not appear on the pre-trial witness list. In particular,
the defense argued that the State had already cross-examined Rebecca and that
“this goes more towards challenging her credibility than refuting any defense in
this matter.” Tr. Vol. II, p. 225. The trial court overruled the objection to
Corn’s testimony noting that, “She’s not offering anything of substance. It’s the
content of the 911 calls, particularly the third one.” Id. at 226.
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[28] Corn testified and laid the foundation for the admission of Exhibit 11, the
recording of the two 911 conversations. Livesay did not object to the admission
of the recordings. The recordings were played for the jury and the State rested.
[29] In Mauricio, a rebuttal witness, who had not been revealed in discovery, was
called to testify solely for the purpose of refuting the testimony of the defense’s
alibi witnesses. On appeal, Mauricio claimed that the State was aware of the
rebuttal witness well before trial and wrongly failed to disclose her potential
testimony to the defense. As is pertinent to the present appeal, the defense
argued that a request for continuance would not have aided the defense because
the specific purpose of the witness’ testimony was to discredit the testimony of
the alibi witnesses. The Supreme Court held that the trial court did not abuse
its discretion by allowing this testimony because the purpose of calling a
rebuttal witness is to respond to testimony presented by the defense. 476
N.E.2d at 94.
[30] In the present appeal, prior to trial, the State and the defense were aware of the
substance of the 911 calls. Exhibit 11 was admitted into evidence without
objection. Corn’s rebuttal testimony primarily was limited to laying a
foundation for the admission of the contents of the 911 calls. Further, to the
extent she testified about the substance of those calls, her testimony was
cumulative of the recordings, which were admitted without objection. The trial
court did not abuse its discretion.
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II. Motion for Mistrial
[31] Next, Livesay argues that the trial court abused its discretion by denying his
motion for mistrial, instead choosing to admonish the jury.
[32] The decision to grant or deny a motion for mistrial lies within the sound
discretion of the trial court. Isom v. State, 31 N.E.3d 469, 480 (Ind. 2015).
Upon review of the trial court’s decision, we afford great deference to the trial
court and review the decision solely for an abuse of that discretion. Id. The
trial court is in the best position to assess the overall circumstances of an error
and its probable impact on the jury. Lucio v. State, 907 N.E.2d 1008, 1010 (Ind.
2009). “The overriding concern is whether the defendant ‘was so prejudiced
that he was placed in a position of grave peril.’” Id. (quoting Gill v. State, 730
N.E.2d 709, 712 (Ind. 2000)). “The remedy of mistrial is extreme, strong
medicine that should be prescribed only when no other action can be expected
to remedy the situation at the trial level.” Id. at 1010-11(citations and quotation
omitted).
[33] During the State’s rebuttal closing argument, the following
statements/comments were made by the prosecuting attorney and Gladys:
STATE: Bring your common sense in when you go back and
start your deliberation and as you talk about this
case. [Defense Counsel] said this case is important
to Buddy Livesay. Sure it is. But it’s also important
for Gladys Kain.
GLADYS: And my six-year-old son.
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Tr. Vol. III, p. 11. At that point, the parties approached the bench and
discussed the defense’s requests that Gladys be removed from the court room
and that a mistrial, or at least an admonishment be given. The trial court did
not declare a mistrial, but admonished the jury to disregard Gladys’ statement
when reaching a verdict and removed Gladys from the court room.
[34] A defendant is entitled to a fair trial, not a perfect one. Inman v. State, 4 N.E.3d
190 (Ind. 2014). A properly submitted admonition of the jury is presumed to
cure any error in the admission of evidence. Isom, 31 N.E.3d at 481. Further,
on review, we must presume that the jury obeyed the trial court’s instructions in
reaching its verdict. Id. While the arguments of counsel are not evidence,
Gladys, who had testified at trial, interrupted the State’s rebuttal closing with
an emotional outburst. However, the jury had already heard Gladys’ testimony
that her son witnessed both incidents. The removal of Gladys from the court
room and admonishment to the jury was sufficiently curative and not an abuse
of discretion.
Conclusion
[35] In light of the foregoing we affirm the trial court’s judgment.
[36] Affirmed.
Robb, J., and Barnes, J., concur.
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Buddy J. Livesay v. State of Indiana (mem. dec.)
Combined Opinion