Attorneys For AppellantTTORNEYS FOR APPELLANT
Attorneys for AppelleeATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer Arthur Thaddeus Perry
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
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In the
Indiana Supreme Court
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No. 03S00-0110-CR-548
Robert J. Bassett, Jr.,
Appellant (Plaintiff below),
v.
State of Indiana,
Appellees (Defendants below).
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Appeal from the Bartholomew Superior Court, No. 03D01-0007- CF-835
The Honorable John A. Westhafer, Judge
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On Direct Appeal
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September 17, 2003
Dickson, Justice.
In this direct appeal, the defendant challenges his convictions on
four counts of murder. Finding that hearsay evidence and testimony about
the defendant's prior criminal acts were improperly presented to the jury,
we reverse and remand for a new trial.
The defendant, Robert Bassett, was convicted of the 1998 murders of
Jamie Engleking, her children Jessica Brown and Brandon Engleking, and
Amanda Davis, a friend's daughter. He was sentenced to four consecutive
terms of life without parole. The defendant contends that four items of
evidence were improperly admitted at trial over his objection: (1)
testimony of the victim's husband, Brandon Engleking, that the victim told
him that the defendant had raped her and threatened to kill her and her
children if she told anyone; (2) testimony by Brandon's aunt, Karen
Carroll, that the victim was afraid that the defendant was going to kill
her, her children, and Amanda Davis; (3) testimony of two women that the
defendant, while on probation, had raped and threatened to kill them in
separate incidents more than ten years before the charged offenses; and (4)
a letter, written by Jamie and addressed to "Bob," in which she expresses
her fear that she might be pregnant.
Claims of error in the exclusion or admission of evidence are reviewed
for an abuse of discretion, and we reverse only when the decision is
clearly against the logic and effect of the facts and the circumstances.
Brown v. State, 770 N.E.2d 275, 280 (Ind. 2002); Hubbard v. State, 742
N.E.2d 919, 924 (Ind. 2001).
As to the victim's husband's testimony that the victim told him the
defendant had raped her and threatened to kill her and her children if she
every told anybody, and the husband's aunt's testimony that the victim told
her she was afraid of the defendant because he had threatened to kill her
and her children, the defendant contends the trial court erroneously
overruled his hearsay objections at trial. Hearsay is "a statement, 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 is generally not admissible at trial. Evid.
R. 802. Because the statements were offered to prove that the defendant
had threatened the victim and that she was afraid of him, they are hearsay,
and inadmissible unless they fall under an exception ot the hearsay rule.
The State argues that these statements were properly admitted under
the "state of mind" exception to the hearsay rule, Evidence Rule 803(3), as
evidence of the relationship between the parties and of the defendant's
motive. Br. of Appellee at 7-8. In relevant part, this exception provides
that the hearsay rule does not exclude "[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)." Evid. R. 803(3).
Issues similar to those in the present case were presented in Willey
v. State, 712 N.E.2d 434 (Ind. 1999), and Hatcher v. State, 735 N.E.2d 1155
(Ind. 2000). In Willey the trial court overruled hearsay objections and
permitted testimony that the victim had told witnesses that she feared the
defendant and that he had threatened to kill her. Noting that motive and
intent of the defendant do not constitute an exception to the hearsay rule,
wWe observed that evidence under the Rule 803(3) state of mind exception
must nevertheless be relevant to the issues in the case, Evid. R. 402, and
that a victim's state of mind may be relevant where it has been put in
issue by the defendant. After reviewing the record and concluding that the
defendant had not put in issue his relationship with the victim, we held
that "the State cannot bootstrap this evidence into admissibility by
putting it in, forcing a denial, and then claiming it was put in issue by
the defendant." Willey, 712 N.E.2d at 444. We concluded that the victim's
fear of the defendant was not relevant to any issue in the case and that
the trial court erred in allowing testimony regarding the defendant's
threats and the victim's fear of him. In Hatcher, the trial court
permitted a witness to testify that she heard the victim say she was afraid
that the defendant was going to kill her. Again noting that the nature of
a relationship may be relevant to show motive, we emphasized that motive is
not an exception to the hearsay rule and held that it was error to admit
the victim's hearsay statement.
The victim's statements to others that the defendant had threatened
her were first revealed to the jury during the State's opening statement.
The statements were then presented in evidence during the State's case in
chief. The defendant later took the stand and denied ever having a
romantic or sexual relationship with the victim. These The victim's
statements reflected her the victim's then-existing state of mind, i.e. her
fear of the defendant, but the defendant was not the party who put his
relationship with the victim into issue. As evidence of the victim's
relationship with the defendant, an issue not raised by the defense, the
statements were thus not admissible under the state of mind exception to
the hearsay rule.
The State contends that the statements were also admissible because
the defendant had been subject to parole revocation if he engaged in a
romantic or sexual relationship without permission of his parole officer.
Because the State's theory was that the defendant killed the victims to
avoid parole revocation, it argues that "the victim's state of mind
regarding their relationship" was relevant to motive, an issue in the case.
Br. of Appellee at 9. We disagree. The victim's "state of mind, emotion,
sensation, or physical condition," Evid. Rule 803(3), at issue was that of
fear. The victim's possible thoughts "regarding their sexual relationship"
are not mental or physical conditions within the state of mind exception,
and her fear is not logically relevant to the defendant's motive.
We find that it was error to admit over the defendant's objections the
testimony of the victim's husband and the husband's aunt regarding the
victim's prior declarations that she feared the defendant or that the
defendant had threatened her.
The defendant next contends that the trial court improperly permitted
two women to testify that, while on probation, the defendant raped and
threatened to kill them if they told anyone about the rape. See Record at
2283-84, 2325. One of the women said she was told that the defendant had a
knife, and the other testified that he had a shotgun. See Record at 2325,
2286. These rapes and murder threats occurred in 1982 and 1986. The
defendant unsuccessfully sought to exclude this evidence by a motion in
limine and by a timely objection at trial, arguing that it violated Indiana
Evidence Rules 404(b) and 403. The defendant reasserts these claim on
appeal, and argues that this evidence is not relevant to motive or identity
and that any probative value was outweighed by the resulting unfair
prejudice.
The State responds that Rule 404(b) specifically permits proof of
other crimes to show identity or motive. It argues that the two prior
incidents were similar to the charged offenses because, when they occurred,
the defendant was on probation and threatened to kill the victims to avoid
detection and incarceration. Emphasizing that its theory was that the
defendant killed the victims to avoid revocation of parole, the State urges
that this evidence was not to prove that the defendant had a bad character
but "it is evidence that the possibility of going back to prison was always
on his mind." Br. of Appellee at 11. It asserts that this evidence makes
it "more likely that this motive influenced his actions." Id.
Indiana Evidence Rule 404(b) provides, in relevant part:
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 . . . .
This rule prevents the State from punishing people for their character, and
"evidence of extrinsic offenses poses the danger that the jury will convict
the defendant because his 'general character' is bad or . . . he has a
tendency to commit other crimes.'" Gibbs v. State, 538 N.E.2d 937, 939
(Ind. 1989) (quoting Williams v. State, 489 N.E.2d 53, 55 (Ind. 1986)). To
decide whether character evidence is admissible under Rule 404(b), the
trial court must: (1) determine whether the evidence of other crimes,
wrongs, or acts is relevant to a matter at issue other than the person's
propensity to engage in a wrongful act; and (2) balance the probative value
of the evidence against its prejudicial effect pursuant to Ind. Evidence
Rule 403. Hauk v. State, 729 N.E.2d 994, 1001 (Ind 2000); Monegan v.
State, 721 N.E.2d 243, 248 (Ind.1999).
We find that this testimony regarding the defendant's conduct twelve
and sixteen years earlier, and not involving the present victim, does not
bear sufficient similarities to support a reasonable inference that the
person who engaged in the prior crimes against the two women is necessarily
the one who committed the charged murders here. These were not "signature"
crimes. As to the State's claim that the evidence is probative and
relevant to the defendant's motive for the instant case, the probative
value is also questionable. The State argues that the defendant's motive
to threaten two women more than ten years earlier makes it more likely that
this same motive influenced his actions in the present case. This is
hardly different from arguing that the jury should convict the defendant
because he has committed other crimes in the past, a rationale expressly
rejected by our jurisprudence and known as the "forbidden inference." See
13 Robert Lowell Miller, Jr., Indiana Practice § 404.201 (2d. ed. 1995);
see also Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003); Bald v. State,
766 N.E.2d 1170, 1173 (Ind. 2002); Oliver v. State, 755 N.E.2d 582, 587
(Ind. 2001). We believe that the inference here is too strained and remote
to be reasonable. The testimony regarding the defendant's prior crimes
with two other women lacks probative value as proof of the charged crimes,
and the defendant's objections should have been sustained.
The defendant's final contention is that the court erred in admitting,
over his hearsay objection, a letter that the police found wadded up in the
trash in the victim's apartment. It was not signed or dated, but was
written by the victim and addressed to "Bob." The letter read:
Hey. How are you doing? Me alright I guess. I called this
morning because I have a lot on my mind that I wanted to talk to
you about and since you are too busy to talk to me on the phone
I guess I have to write you. I don't understand you at all.
You told me when we first started messing around that you was
thrown off about the idea of me being able to get pregnant, but
you told me if you do get me pregnant, that you will take care
of it. Well now here I might be pregnant and now you are
telling me you can't have kids. I don't f[***]ing understand.
You tell me at first you can get a girl pregnant and now you
can't, you are sterile. So what is the deal with that?
App. of Appellant at 300. The State argues that it was properly admitted
under the state of mind exception to the hearsay rule. Again, it urges
that "the victim's state of mind was relevant to the relationship between
the parties and Defendant's motive for the crimes he committed." Br. of
Appellee at 12. We previously addressed and rejected this claim. For the
same reasons, we find that it was error to overrule the defendant's
objection and admit this letter in evidence.
The State does not urge application of the doctrine of harmless error.
A trial error may not require reversal where its probable impact on the
jury, in light of all of the evidence in the case, is sufficiently minor so
as not to affect a party's substantial rights. Ind. Trial Rule 61; Stewart
v. State, 754 N.E.2d 492 (Ind.2001). Here, we cannot find that these
errors were "harmless." Aside from the impermissible hearsay and character
evidence discussed above, the record demonstrates that most of the evidence
presented at trial was circumstantial, and is hardly overwhelming. Under
the circumstances, we find that the impermissible and highly prejudicial
evidence undoubtedly affected the defendant's substantial rights.
The judgment of the trial court is reversed and this case is remanded
for a new trial.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.