ATTORNEY FOR APPELLANT
Anthony V. Luber
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JOHN WILLIAM DAVENPORT, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-9912-CR-800
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9805-CF-179
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
June 28, 2001
BOEHM, Justice.
John William Davenport was convicted of the murder of Donna Hess and
sentenced to sixty-five years imprisonment. In this direct appeal, he
contends that: (1) the trial court abused its discretion in admitting
inadmissible hearsay; (2) the trial court abused its discretion in refusing
instructions on circumstantial evidence and the lesser included offense of
reckless homicide; (3) the trial court erred during jury deliberations in
failing to provide the jury with a transcript of the testimony of a
witness; and (4) there was insufficient evidence of murder. We affirm the
judgment of the trial court.
Factual and Procedural Background
On May 3, 1998, five-year-old Jeremy Dew awoke to loud noises in the
kitchen of his home. Dew went into the kitchen to see what the noise was
and discovered his mother, Donna Hess, and John Davenport fighting. Hess
was crying and Davenport picked her up and threw her against the wall.
When Dew attempted to help Hess, Davenport hit him in the head with a stick
and Dew returned to bed.
When Dew awoke the next morning, he found his mother’s body on the
floor of the kitchen. Dew called 911 and told the operator that his mom
“got beat up last night” and was dead. Dew was taken to the hospital where
he told a social worker that “John” had hurt his mother. The cause of
death was strangulation.
At trial, the court admitted a tape of the 911 call, a transcript of
the 911 call, and Dew’s statements to the social worker. There was also
testimony from Shannon West, a friend of Hess, that Davenport was jealous
of Hess’ relationship with another man and had threatened Hess the day
before she was killed. During jury deliberations, the trial court replayed
the 911 tape at the jury’s request. Davenport was found guilty of murder
and sentenced to sixty-five years imprisonment.
I. Hearsay
Davenport challenges the trial court’s admission of a tape of the 911
phone calls and Dew’s statements to a social worker. He contends that both
were inadmissible hearsay. The State responds that the statements were
admissible under the excited utterance exception to the hearsay rule.
Hearsay is an out of court statement offered to prove the truth of the
matter asserted. Ind. Evidence Rule 801(c). It is inadmissible unless it
falls under an exception. Ind. Evidence Rule 802. Among the exceptions to
the hearsay rule is: “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement
caused by the event or condition.” Ind. Evidence Rule 803(2). Determining
whether a statement constitutes an excited utterance is essentially a
factual determination subject to a clearly erroneous standard of review,
sometimes described as the functionally equivalent abuse of discretion.
Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).
For a hearsay statement to be admitted as an excited utterance, three
elements must be shown: (1) a startling event, (2) a statement made by a
declarant while under the stress of excitement caused by the event, and (3)
that the statement relates to the event. Id. This is not a mechanical
test. It turns on whether the statement was inherently reliable because
the witness was under the stress of an event and unlikely to make
deliberate falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana
Practice § 803.102 (2d ed. 1995); accord Jenkins v. State, 725 N.E.2d 66,
68 (Ind. 2000).
A. 911 Tape
The trial court admitted an audiotape of Dew’s phone call to 911 and
the responding call from the 911 operator as excited utterances. In the
first, Dew told the operator that his mom “got beat up last night” and was
dead. When asked who beat his mother, Dew responded his father.[1] Dew
then hung up, the operator called back, and Dew reiterated the information.
When determining whether a statement is admissible under the excited
utterance exception, “the trial court simply determines whether the
evidence is sufficient to allow the trier of fact to find, by a
preponderance of evidence, that the speaker was under the stress of the
startling event or condition.” Miller, supra, § 803.102, at 602. This
need not be done in any specific manner. Ultimately, the issue for the
trial court was whether the call was in fact made very shortly after this
five year old discovered his dead mother’s body, and whether this
foundation was sufficient to meet the requirements of Indiana Rule of
Evidence 803(2). The trial court did not abuse its discretion in admitting
the 911 tape under the excited utterance exception. Dew experienced a
startling event—finding the body of his mother—and then called 911 to
report this finding. This is not the situation where time passed and the
witness had time to reflect. Dew testified that he called 911 immediately
after finding the body. The police officers who arrived at the house a few
minutes later confirmed this when they described Dew as confused, in shock,
upset, and fidgety. Given this testimony, we cannot conclude that the
trial court abused its discretion in admitting the 911 calls under the
excited utterance exception.
Davenport also challenges the foundation for the 911 tape. “The
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” Ind. Evidence Rule
901(a). Karen DePaepe, the Communications Center Director for 911 in South
Bend, testified concerning the master list of the daily 911 phone calls and
described the record keeping procedures for the 911 program. That is
sufficient to establish the tape as an authentic recording of calls to the
911 number.
B. Statements to Social Worker
Davenport also challenged the trial court’s admission of Dew’s
statements to a social worker shortly after finding the body. Dew was able
to tell the social worker his name, his date of birth, and other background
information. He then told the social worker, with a police officer
present, that “John” hurt his mother.
The police officer’s account of Dew’s statement to the social worker
was plainly hearsay because it was offered for the truth of the proposition
that “John” injured Dew’s mother. The trial court admitted the statement
under the excited utterance exception. It seems somewhat of a stretch to
conclude that a statement one half-hour after the discovery of the body was
still made under the stress of the startling event. Although there is no
rigid test of elapsed time, we have found the exception available one half-
hour after the “startling event” only under extreme and continuing stress.
See Yamobi v. State, 672 N.E.2d 1344, 1346-47 (Ind. 1996) (a victim of a
gunshot unable to move). Even if error, however, admission of this
statement was cumulative of Dew’s testimony and the 911 tape, and was
harmless.
Davenport contends that because Dew did not testify about the
statement at trial, it was inadmissible under Indiana Rule of Evidence
801(d)(1). This is incorrect. In the first place, the cited rule provides
a path to admissibility of certain statements. It does not require
exclusion of any statement. If its requirements are not met, a hearsay
statement may nevertheless be admitted under other provisions. Second,
Evidence Rule 801(d)(1) provides that certain statements are not hearsay if
the specified conditions are met. These include that the declarant
testifies at trial, is subject to cross-examination, and either: (1) the
statement is inconsistent with the testimony and was given under oath at
another proceeding; (2) the statement is consistent with the testimony and
offered to rebut a charge of fabrication or improper motive made before the
motive to fabricate arose; or (3) it is a statement of identification made
shortly after perceiving the person. Under this provision, admission of
Dew’s statement does not turn solely on whether he testified at trial about
the statement.
II. Jury Instructions
A. Circumstantial Evidence Instruction
Davenport contends that the trial court abused its discretion in
refusing his tendered instruction on circumstantial evidence. Although the
trial court instructed the jury on the definitions of both direct and
circumstantial evidence, it refused to give the following instruction
tendered by Davenport:
Evidence may be either direct or circumstantial. Direct
evidence means evidence that directly proves a fact, without an
inference, and which by itself, if true, conclusively establishes that
fact. Circumstantial evidence means evidence that proves a fact from
which an inference of the existence of another fact may be drawn. An
inference is a deduction of fact that may logically and reasonably be
drawn from another fact or group of facts.
It is not necessary that facts be proved by direct evidence.
Both direct and circumstantial evidence are acceptable as means of
proof. Neither is entitled to any greater weight than the other.
In cases where circumstantial evidence alone is relied on, the
circumstances disclosed by the evidence must be of such character and
strength as to exclude every reasonable hypothesis except guilt. If
circumstances disclosed can be explained on any reasonable hypothesis
except guilt or can be explained on any reasonable theory of
defendant’s innocence, the defendant is entitled to acquittal. But
circumstantial evidence alone may be sufficient to support a verdict
of guilty, provided that the jury believe beyond a reasonable doubt
that the accused is guilty as charged.
In reviewing a trial court’s decision to give or refuse tendered jury
instructions, this Court considers: (1) whether the instruction correctly
states the law; (2) whether there is evidence in the record to support the
giving of the instruction; and (3) whether the substance of the tendered
instruction is covered by other instructions which are given. Cutter v.
State, 725 N.E.2d 401, 408 (Ind. 2000). This instruction was not supported
by the evidence because there was direct evidence of the crime. “In cases
based solely on circumstantial evidence, there are generally no witnesses
to the alleged crime.” Nichols v. State, 591 N.E.2d 134, 136 (Ind. 1992).
Direct evidence is defined as “[e]vidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference
or presumption.” Black’s Law Dictionary 577 (7th ed. 1999). In this case,
Dew testified that he saw Davenport beating his mother and when he awoke
the next day she was dead. Hess died as a result of strangulation and had
thirty-nine other injuries. Dew did not witness the actual killing, but
did witness the beating that led to the murder. Because there was direct
evidence of the crime, the trial court did not abuse its discretion in
refusing Davenport’s tendered instruction on circumstantial evidence.
B. Reckless Homicide Instruction
Davenport further contends that the trial court abused its discretion
in refusing his lesser included offense instruction on reckless homicide.
Wright v. State, 658 N.E.2d 563 (Ind. 1995), sets forth a three-part test
for ruling on requests to instruct the jury on a lesser included offense.
Parts one and two require the trial court to determine whether the lesser
included offense is either inherently or factually included in the greater
offense. Id. at 566-67. If so, part three of Wright requires the trial
court to determine if there is a “serious evidentiary dispute” as to any
element that distinguishes the greater offense from the lesser. Id. at
567.
We review trial court rulings on lesser included offense instructions
for an abuse of discretion unless: (1) the trial court made no explicit
finding as to the existence of a serious evidentiary dispute, and (2) the
defendant made clear the basis for the claimed dispute. Brown v. State,
703 N.E.2d 1010, 1019-20 (Ind. 1998). In this case, the trial court found
that there was no “dispute about the evidence of the attack.”[2]
Accordingly, we review the trial court’s refusal of the lesser included
offense instruction for an abuse of discretion.
It is well settled that reckless homicide is an inherently included
lesser offense of murder. McEwen v. State, 695 N.E.2d 79, 85 (Ind. 1998).
The only element distinguishing the two offenses is the defendant’s state
of mind: reckless homicide occurs when the defendant “recklessly” kills
another human being and murder occurs when the killing is done “knowingly”
or “intentionally.” Compare Ind. Code § 35-42-1-5 (1998) with id. § 35-42-
1-1(1). Reckless conduct is action taken in “plain, conscious, and
unjustifiable disregard of harm that might result.” Id. § 35-41-2-2(c).
That disregard must involve a substantial deviation from the acceptable
standards of conduct. Id. In contrast, a person engages in conduct
“knowingly” if the person “is aware of a high probability that he [or she]
is doing so.” Id. § 35-41-2-2(b).
Because reckless homicide is an inherently lesser included offense of
murder, the issue under Wright becomes whether there was a serious
evidentiary dispute as to the mens rea element. Hess had thirty-nine
different wounds on her body, including a stab wound on her chin, blunt
trauma abrasions on her head, several other stab wounds, and a pattern
wound to the back of her head. She was strangled to death. This evidence
is sufficient for the trial court to conclude that her murder was performed
at least “knowingly,” and not recklessly. Because there was no serious
evidentiary dispute about the mens rea of the killing, the trial court did
not abuse its discretion in refusing Davenport’s tendered instruction on
reckless homicide.
III. Trial Court’s Response to Jury’s Note
Davenport also claims that the trial court erred by not providing a
transcript of Dew’s testimony to the jury. During deliberations, the jury
sent a note to the court requesting the 911 tape and recorder, the
transcript of the 911 tape, and the transcript of Dew’s testimony in court.
The trial court called the jury into court with both counsel present and
explained that it did not believe a transcript could be instantaneously
made of Dew’s testimony because the court did not have computers. The
trial court also said that the jury could see the evidence only if it had a
disagreement about it. After the jury was excused, the trial court learned
that there was indeed a computer-aided transcription system in use and that
it would take at least two hours to develop a transcript of Dew’s
testimony. The jury then sent another note stating that there was a
disagreement about the 911 tape, requesting to listen to the tape in court.
The trial court called the jury back to the courtroom, explained that a
transcript of Dew’s testimony could be made, but it would take several
hours. The 911 tape was played. Davenport now claims that the trial court
effectively prevented the jury from having access to Dew’s testimony.
The procedure for allowing jurors to review evidence and testimony
during deliberations is governed by both statute and case law. The
relevant statute provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the
testimony; or
(2) the jury desires to be informed as to any point of law arising in
the case;
the jury may request the officer to conduct them into court, where the
information required shall be given in the presence of, or after
notice to, the parties or the attorneys representing the parties.
Ind. Code § 34-36-1-6 (1998).[3] In this case, the trial court called the
jury into the courtroom to explain that law. At that time, the court
erroneously informed the jury that a transcript of Dew’s testimony was not
available. The jury later asked to hear the 911 tape, but not to view the
transcripts of the call or Dew’s testimony. The trial court then informed
the jury that it had been mistaken about the availability of a transcript
and that a short excerpt from Dew’s testimony might be available in a
relatively short time, but a complete transcript would require two hours or
more. The jury never expressed a disagreement over Dew’s testimony and did
not renew its request. Accordingly, the statute was never triggered.
Although the trial court initially mistakenly informed the jury that a
transcript of Dew’s testimony was not available, it rectified that mistaken
impression. The jury had sufficient time to request the transcript if it
had a disagreement about it. The trial court did not err in failing to
provide the jury with a transcript of Dew’s testimony.
IV. Sufficiency of the Evidence
Davenport finally contends that there was insufficient evidence to
support his conviction for murder. He bases this contention on the fact
that the majority of the evidence is circumstantial and Dew’s testimony was
inconsistent and improbable.[4] When reviewing a claim of sufficiency of
the evidence, we do not reweigh the evidence or judge the credibility of
witnesses. Spurlock v. State, 675 N.E.2d 312, 314 (Ind. 1996). We look to
the evidence and the reasonable inferences therefrom that support the
verdict and will affirm a conviction if evidence of probative value exists
from which a jury could find the defendant guilty beyond a reasonable
doubt. Id. Circumstantial evidence will be deemed sufficient if
inferences may reasonably be drawn that enable the trier of fact to find
the defendant guilty beyond a reasonable doubt. Franklin v. State, 715
N.E.2d 1237, 1241 (Ind. 1999).
In this case there was sufficient evidence to convict Davenport of
murder. Dew testified that Davenport beat his mother on the night of the
murder. He heard sounds of fighting, witnessed his mother crying, and saw
Davenport throw Hess into a wall. She died of strangulation. Although
there were inconsistencies in Dew’s testimony, the jury heard them and was
free to disbelieve the testimony. There was also evidence that Davenport
had threatened to harm Hess only a day before the murder because of her
involvement with another man. Taken together, this is sufficient evidence
from which the jury could have concluded that Davenport knowingly killed
Hess.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur.
DICKSON, J., dissents without opinion.
-----------------------
[1] Dew testified that he accidentally called Davenport his father and that
Davenport was the person who had hurt his mother.
[2] The trial court at first based its ruling on Davenport’s claim that he
did not commit the crime, stating that “defendant denied any guilt
whatsoever, and there was not a substantial dispute on the distinguishing
element between Murder and Reckless Homicide.” This is incorrect under
Young v. State, 699 N.E.2d 252, 256 (Ind. 1998). However, the trial court
later stated that “even absent his denial of involvement, I didn’t see any
dispute about the evidence of the attack and what inferential culpability
might come from that was not in any serious dispute that I saw.” This is
sufficient to satisfy the Brown requirement.
[3] Although not argued by Davenport, if the statute is not triggered, jury
requests are evaluated under the guidelines established by our case law.
Robinson v. State, 699 N.E.2d 1146, 1149-50 (Ind. 1998). These guidelines
allow the trial court in its discretion to send evidence to the jury room
based on three factors. Because Davenport neither cites to any case using
these factors or explains how use of the common law would lead to a
different result here, any claim based on the case law is waived. Former
Ind. Appellate Rule 8.3(A)(7) (now App. R. 46(A)(8)).
[4] The State characterizes this argument as “incredible dubiosity.” That
doctrine is limited to cases where a sole witness presents inherently
contradictory testimony that is equivocal or the result of coercion and
there is a complete lack of circumstantial evidence of the appellant’s
guilt. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). Dew’s testimony
was corroborated and was not inherently improbable. Nor was there a lack
of circumstantial evidence of Davenport’s guilt.