James Pitman v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 17 2015, 8:28 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Pitman, August 17, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1501-CR-5
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Stoner, Judge
Cause No. 49G06-1404-FB-20163
Appellee-Plaintiff
Vaidik, Chief Judge.
Case Summary
[1] James Pitman was convicted of Class B felony rape, Class B felony criminal
deviate conduct, Class D felony criminal confinement, Class D felony
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intimidation, and Class A misdemeanor domestic battery for raping, battering,
and confining his live-in girlfriend. He now appeals his convictions, arguing
that the arresting officer impermissibly vouched for the State’s witnesses, which
constitutes fundamental error. However, the officer did not testify that he
believed the victim or the victim’s co-worker that the victim had been texting
during the ordeal nor did the officer express an opinion as to the truth of their
statements. Rather, the officer merely explained—in response to defense
counsel’s question—that he arrested Pitman based on the statements of the
victim and her co-worker, the victim’s visible injuries, and the fact that Pitman
had nothing to say to contradict the victim’s statements to police. Accordingly,
we conclude that the trial court did not commit error, let alone fundamental
error, in admitting the officer’s testimony. We therefore affirm Pitman’s
convictions.
Facts and Procedural History
[2] The facts most favorable to the verdict reveal that James Pitman lived with his
girlfriend, F.N., and her three children. In the early-morning hours of April 18,
2014, Pitman returned home intoxicated after drinking with a friend. Tr. p. 43,
283. F.N. woke up around 3:45 a.m. to the sound of Pitman stumbling around
the house. As Pitman lay down, F.N. got up and started to get ready for work.
F.N. had to leave earlier than usual to pick up a co-worker, and she did not
want to deal with Pitman “because [she] could tell he [had been] drinking.” Id.
at 46. As F.N. was getting dressed in the bathroom, she heard Pitman grab her
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keys and ask what she was doing. Id. at 47-48. F.N. told Pitman she was
getting ready for work. After getting dressed, F.N. went to take her keys from
Pitman, who was sitting on the bed. When she leaned over, Pitman “lean[ed]
up” toward her and started punching her in the face. Id.
[3] After Pitman hit F.N. several times, she went to the bathroom to wash off the
blood. When F.N. told Pitman she had to go to work, Pitman responded that
she could not go to work looking like that. Id. at 49. So F.N. called her
employer and left a voice message that she would not be at work that day. F.N.
told Pitman she needed to call her co-worker—David Thompson—to let him
know she could not take him to work. In response, Pitman took her phone,
threw it down, and told her she “needed to get in the shower, [and] that [she]
was his.” Id. at 51. Although F.N. said she did not need to get in the shower,
Pitman threatened that if she did not get in the shower, he would “bash” her
head into the wall. Id. F.N. immediately got in the shower. After F.N. got out
of the shower, dried off, and put on a T-shirt and shorts, she left the bathroom
and walked through the bedroom. As she walked through the bedroom,
Pitman shoved her onto the bed. Id. at 52. Pitman tried to pull F.N.’s shorts
down, but F.N. kept trying to pull them back up. Id. at 54. F.N. asked Pitman
to stop, but he refused. Id. When Pitman attempted to perform oral sex on
F.N., she kicked him. He then bit her vaginal area. Id. at 54-55. F.N.
continued to tell Pitman to “stop,” but he refused. Id. at 55. Pitman then got
on top of F.N. and inserted his penis in her vagina and engaged in sexual
intercourse with her against her wishes. Id. at 55-56.
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[4] Although Pitman fell asleep, F.N. did not leave because she was afraid if she
tried to leave he would just stop her. Id. at 57. When Pitman woke up a couple
hours later, F.N. told him she was hungry. Pitman got up and left the room to
fix F.N. something to eat. Id. at 59, 95.
[5] During the course of the morning, F.N. texted her co-workers Robin Miller and
Thompson that she had a broken nose, Pitman had punched her in the face, he
would not let her leave, and he raped her. See id. at 59, 88, 97; see also State’s
Ex. 7, 16 ,17, 18.
[6] After receiving F.N.’s texts, Robin drove to F.N.’s house and called 911 from
outside. Tr. p. 128-29. Officers Matthew Addington and John Reichle of the
Indianapolis Metropolitan Police Department were dispatched to 2231
Canvasback Drive around 10:30 a.m. for a domestic-related assault. Id. at 20-
21, 31. Officer Addington arrived first and waited for Officer Reichle. Id. at 19-
20. While he was waiting, Officer Addington was approached by Robin on the
street and had a conversation with her. Once Officer Reichle arrived, both
officers went to the door and knocked. Pitman answered the door after several
minutes. Id. at 35. Officer Addington informed Pitman that they “were trying
to confirm or dispel that an assault had occurred and [would] like to see all
parties in the house.” Id. at 22-23. Pitman led Officers Addington and Reichle
to F.N., who was in the master bedroom. Id. at 24. F.N. had lacerations and
bruising on her forehead, and the bridge of her nose was cut open. Id.; see also
State’s Ex. 1, 2, 3, 4. Pitman had no visible injuries. Tr. p. 32. After Officer
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Riechle took Pitman outside, F.N. told Officer Addington that Pitman was
responsible for the injuries to her face. Id. at 25-26.
[7] Officer Addington radioed Officer Reichle to handcuff Pitman. Pitman asked
Officer Addington “what [F.N.] had said.” Id. at 29. Pitman did not say
anything else about what had happened. Officer Addington arrested Pitman for
domestic battery, battery, and criminal confinement. Id. at 36. F.N. was taken
to Indiana University (IU West) hospital because of a possible concussion. Id.
at 26, 30, 32. After being examined at IU West, F.N. was transported to the
Center of Hope at Methodist Hospital. F.N. informed a forensic-nurse
examiner that she had been raped and consented to a sexual-assault
examination. Id. at 168, 173. The test results revealed traces of Pitman’s semen
and DNA in her vaginal area, on a maxi pad, and in her underwear. Id. at 221-
26, 257-61.
[8] The State charged Pitman with Count I: Class B felony rape; Count II: Class B
felony criminal deviate conduct; Count III: Class D felony criminal
confinement (for holding F.N. down); Count IV: Class D felony criminal
confinement (for not allowing F.N. to leave); Count V: Class D felony
intimidation; Count VI: Class A misdemeanor domestic battery; and Count
VII: Class A misdemeanor battery.1 Appellant’s App. p. 44. At Pitman’s jury
1
Originally Count III was Class D felony sexual battery. The State, however, filed a motion to amend the
information and deleted Count III on November 24, 2014. Appellant’s App. p. 43. The court granted the
motion, and the charges in the information were renumbered to be sequential. Id. at 44.
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trial, defense counsel asked Officer Addington on re-cross why Pitman was
arrested on the scene. Officer Addington responded:
After conducting what I thought was enough for a charge that met the
statute of Domestic Battery and Battery, Criminal Confinement and
the fact that Mr. Pitman had nothing to say about the assault itself. I
wanted to know what she said possibly to formulate a lie to me. I
went ahead and arrested based on that. Also the testimony from a
witness or a friend, [Robin], on the lead-in information that she gave
me initially, and also from [F.N.] and her injuries, that was
[affirmative] occurrence of an assault.
Tr. p. 36. Defense counsel did not object to Officer Addington’s response. Id.
Pitman testified in his own defense that F.N. hit him first and after a few hits he
“snapped” and hit her back. Id. at 285-88. Pitman also testified that the sexual
intercourse was consensual. Id. at 302-04. The jury found Pitman guilty as
charged. Id. at 373-74. The trial court entered judgment on all counts except
Counts III and VII on double-jeopardy grounds.2 The court imposed
concurrent sentences of twelve years each, with six years suspended, for Counts
I and II; three years each on Counts IV and V; and one year for Count VI.
Appellant’s App. p. 11-13; Tr. p. 430. This resulted in an aggregate sentence of
twelve years with six years suspended, to be served in the Indiana Department
of Correction.
[9] Pitman now appeals.
2
The court merged Count III: criminal confinement, with Count I: rape; and Count VI: domestic battery,
with Count VII: battery.
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Discussion and Decision
[10] Pitman contends that the trial court erred in admitting Officer Addington’s
testimony concerning why he arrested Pitman on the scene because it
impermissibly vouched for the State’s witnesses. Because Pitman did not object
to Officer Addington’s testimony at trial, he argues that it amounts to
fundamental error.
[11] Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged errors are so
prejudicial to the defendant’s rights as to “make a fair trial impossible.” Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014) (quotation omitted), reh’g denied. In other
words, to establish fundamental error, the defendant must show that, under the
circumstances, the trial judge erred in not sua sponte raising the issue because
the alleged errors (a) “constitute clearly blatant violations of basic and
elementary principles of due process” and (b) “present an undeniable and
substantial potential for harm.” Id. (quotation omitted). The element of such
harm is not established by the fact of ultimate conviction; rather, it “depends
upon whether [the defendant’s] right to a fair trial was detrimentally affected by
the denial of procedural opportunities for the ascertainment of truth to which he
otherwise would have been entitled.” Id. (quotation omitted). In evaluating the
issue of fundamental error, our task is to look at the alleged misconduct in the
context of all that happened and all relevant information given to the jury—
including evidence admitted at trial, closing argument, and jury instructions—
to determine whether the misconduct had such an undeniable and substantial
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effect on the jury’s decision that a fair trial was impossible. Id. Fundamental
error is meant to permit appellate courts a means to correct the most egregious
and blatant trial errors that otherwise would have been procedurally barred; it is
not meant “to provide a second bite at the apple for defense counsel who
ignorantly, carelessly, or strategically fail to preserve an error.” Id.
[12] Pitman argues specifically that Officer Addington’s testimony that he arrested
Pitman “based in part on the statements of [F.N.] and the ‘testimony’ of
[Robin]” was impermissible vouching testimony in violation of Indiana
Evidence Rule 704 (b).3 Appellant’s Br. p. 7. Evidence Rule 704 (b) provides
that “witnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a
witness has testified truthfully; or legal conclusions.” Such testimony is an
invasion of the province of the jurors in determining what weight they should
place upon a witness’s testimony. Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct. App.
2014), trans. denied; Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App.
2012). It is essential that the trier of fact determine the credibility of the
witnesses and the weight of the evidence. Gutierrez, 961 N.E.2d at 1034.
3
Pitman does not argue that Officer Addington’s testimony was impermissible course-of-investigation
evidence. See Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (“The core issue at trial is, of course, what the
defendant did (or did not do), not why the investigator did (or did not do) something. Thus, course-of-
investigation testimony is excluded from hearsay only for a limited purpose: to bridge gaps in the trial
testimony that would otherwise substantially confuse or mislead the jury.” (quotation omitted)).
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[13] Here, defense counsel—not the State—asked Officer Addington why he
arrested Pitman on the scene, and the officer answered by giving the facts that
led him to make the arrest. This is not vouching. Instead, vouching occurs
when a witness testifies or opines that what another person has said is true or
that he believes her. See id. at 1033-35 (holding that the sexual-assault nurse’s
testimony that she “believe[d]” that the victim was telling the truth and the case
manager’s testimony that she “absolutely” believed what the victim had said
constituted impermissible vouching testimony). Officer Addington did not
testify that he believed F.N. or Robin nor did he express an opinion as to the
truth of their statements. Instead, Officer Addington merely explained—in
response to defense counsel’s question—that he arrested Pitman based on the
statements of F.N. and Robin, F.N.’s visible injuries, and the fact that Pitman
had nothing to say to contradict F.N.’s statements. See Tr. p. 24, 26, 32, 36. In
essence, Officer Addington explained the basis of his probable cause to arrest
Pitman. An officer’s testimony explaining the facts as to why he arrested
someone cannot be considered as asserting a personal belief that a victim or
witness is credible or telling the truth. Officer Addington did not say that the
crime happened; rather, he said that there was probable cause to believe that the
crime happened. Officer Addington did not vouch for the State’s witnesses.
[14] Also, the fact that Officer Addington referred to Robin’s statements as
“testimony” does not somehow convert his statement into vouching. See
Appellant’s Br. p. 9 (“Although [Officer] Addington referred to the statements
of [Robin] as ‘testimony,’ it was, in fact, unsworn hearsay.”). It is clear from
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the context that Officer Addington was referring to what Robin told him when
she approached him on the scene. Therefore, there was no danger that the jury
believed he was referring to a sworn statement given in court or that he was
commenting on what Robin would say in court later during trial.
[15] Because Officer Addington did not vouch for the State’s witnesses, we conclude
that the trial court did not commit error, let alone fundamental error, in
admitting his testimony.4 We therefore affirm the trial court.
[16] Affirmed.
Robb, J., and Pyle, J., concur.
4
Pitman makes two additional arguments. First, he argues that the “error in admitting the vouching
testimony was compounded by the officer’s improper statements casting doubt on Pitman’s credibility.”
Appellant’s Br. p. 9. In support, Pitman points us to this testimony from Officer Addington: “I wanted to
know what she said possibly to formulate a lie to me.” Tr. p. 36 (emphasis added). “She” is a clear reference
to F.N. But in his analysis, Pitman argues that the officer “voic[ed] his suspicion that Pitman may have been
‘formulat[ing] a lie’ to police” and “portrayed Pitman as a calculating liar.” Appellant’s Br. p. 9 (emphases
added). Because Pitman did not give a statement to police and only asked the officer what F.N. had said, we
find that the officer’s statement was not a reference to Pitman, much less a reference to his credibility.
Second, Pitman argues that although “[Officer] Addington referred to the statements of [Robin] as
‘testimony,’ it was, in fact, unsworn hearsay.” Id. We find this argument waived for failure to support it by
cogent reasoning and citations to authority. See Ind. Appellate Rule 46(A)(8)(a).
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