Hatcher v. State

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.


-----------------------
[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.