Ludina Roshida Wallace v. State of Indiana

FILED
Jul 25 2017, 7:16 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brendan K. Lahey Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ludina Roshida Wallace, July 25, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1702-CR-364
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1509-F6-692
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Ludina R. Wallace (Wallace), appeals her conviction for
criminal recklessness, a Class A misdemeanor, Ind. Code § 35-42-2-2.
[2] We affirm.
ISSUE
[3] Wallace raises one issue on appeal, which we restate as follows: Whether the
trial court abused its discretion by admitting the recording of a 9-1-1 call into
evidence.
FACTS AND PROCEDURAL HISTORY
[4] On August 16, 2015, at approximately 7:00 p.m., Deja Cline (Cline) went to a
gas station to purchase gasoline for her friend’s vehicle. In addition to her
friend, Cline was accompanied by her toddler. At the same time, Michael
Jackson (Jackson), was at the gas station. Jackson and Cline were previously in
a relationship, and Jackson is the father of Cline’s toddler. For some reason,
Jackson removed the child from Cline’s vehicle, placed the child in his vehicle,
and drove away. Upset by Jackson’s actions, Cline called Jackson, and the two
argued about his removal of their child from her vehicle. Cline informed him
that she was on her way to his house, located at 1043 North Adams Street in
South Bend, St. Joseph County, Indiana, to pick up the child.
[5] Upon arrival at Jackson’s house, Cline “parked in the middle of the street
basically kind of close to the curb but not parking actually. So in the middle of
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the street.” (Tr. Vol. II, p. 9). Cline observed that, in addition to Jackson and
their son, Jackson’s ex-girlfriend—Wallace—was also present. Cline and
Jackson engaged in a “verbal altercation.” (Tr. Vol. II, p. 10). At some point,
supposedly after Wallace interjected that Cline and Jackson should not be
fighting as they were in front of the child, Wallace also became involved in an
argument with Cline. The exchange of “obscenities and profanities” between
Cline and Wallace intensified to the point where Cline “was angry enough to
say that [she] would do something to [Wallace’s] vehicle.” (Tr. Vol. II, pp. 12,
24). Cline claimed that she threatened to “kick” Wallace’s vehicle. (Tr. Vol. II,
p. 12). According to Wallace, however, Cline said she was “going to tear that
B [sic] car up.” (Tr. Vol. II, p. 62).
[6] Wallace and Cline offered drastically different accounts as to what occurred
next, but it is undisputed that Wallace withdrew her .380 semiautomatic
handgun and fired multiple shots. Wallace claimed that Cline, after running
toward Wallace’s vehicle, turned around and was holding a small paring knife.
Upon seeing the knife, Wallace purportedly removed her pistol from her hip
holster but did not point it at Cline. Instead, Wallace stated that she asked
Cline to move away from her vehicle because she “just wanted to take [her] car
and leave.” (Tr. Vol. II, p. 63). However, Cline “began to charge towards
[Wallace].” (Tr. Vol. II, p. 63). In response, Wallace stated that she “started
running backwards and . . . started shooting at the ground . . . to stop [Cline].”
(Tr. Vol. II, p. 64). Even after Wallace ran back to her vehicle and tried to drive
away, she claims that Cline “came from around the back of the car and [Cline]
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swiped towards [Wallace,] and [Wallace] leaned over avoiding her swipe.” (Tr.
Vol. II, p. 65). It was at that point that Wallace pointed the firearm at Cline
and asked that Cline let her leave, all the while ignoring Cline’s attempts to
goad her into fighting. When she was finally able to do so, Wallace claims that
she drove away. On the other hand, Cline described that she was never in
possession of a knife or any other weapon, and she denied that she ever charged
at or approached Wallace. Rather, according to Cline, after she threatened to
kick Wallace’s vehicle and Wallace saw that Cline was approaching her vehicle,
Wallace shot her gun into the air multiple times before pointing the gun in
Cline’s direction and firing several more shots, one of which grazed Cline’s
shin.
[7] During this confrontation, Jackson had removed the child from his vehicle and
placed the child in the front seat of Cline’s vehicle. Jackson then inexplicably
removed Cline’s keys from the ignition and threw them onto a neighbor’s roof.
Jackson also called 9-1-1. Although most of the recorded 9-1-1 call is
unintelligible due to a significant amount of yelling in the background, at the
beginning of the call, Jackson provided the dispatcher with his address and
reported that there is a “girl in the middle of the street, baby in the front seat . . .
trying to fight another girl.” (State’s Exh. 1). After yelling at someone on the
scene to “get your ass outta my van,” Jackson instructed the dispatcher, “You
need to get here, hurry up.” (State’s Exh. 1). Despite the subsequent repeated
efforts of the dispatcher to glean information, such as whether anyone was in
possession of a weapon, Jackson did not further respond. However, Jackson
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did not hang up. Thus, in the recording, Jackson can be heard yelling at
someone to “do it, shoot the shit outta the bitch. I’ll get the baby. Shoot the
shit outta the bitch.” (State’s Exh. 1). He also repeatedly shouted to “LaLa”
that “police are on the way. Get your gun and go.” (State’s Exh. 1).
[8] When officers from the South Bend Police Department arrived, Jackson and
Wallace were gone. Cline, however, was standing next to her vehicle in the
middle of the street, holding onto her child. One of the officers climbed onto
the neighbor’s roof and retrieved Cline’s car keys. Two .380 shell casings were
recovered from the street. Although Cline’s leg was bleeding, she declined
medical treatment.
[9] On September 25, 2015, the State filed an Information, charging Wallace with
criminal recklessness, a Level 6 felony, I.C. § 35-42-2-2(b)(1)(A). On December
8, 2015, Wallace filed a Notice of Defense of Justifiable Reasonable Force,
claiming that she “was justified in using reasonable force when she reasonably
believed that force was necessary to prevent imminence of serious bodily injury
to herself, when confronted by the alleged victim in this case.” (Appellant’s
App. Vol. II, p. 27). On September 7, 2016, Wallace waived her right to a jury
trial. On November 21, 2016, the trial court conducted a bench trial, at the
conclusion of which, the trial court found Wallace guilty. The trial court
specifically found Cline’s testimony to be more credible than that of Wallace
and, accordingly, determined that “Cline was not engaged in behavior that
could cause serious bodily injury to [Wallace. Thus, Wallace] was not justified
in using deadly force to defend herself.” (Appellant’s App. Vol. II, p. 75). At
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the sentencing hearing on January 26, 2017, the trial court entered a judgment
of conviction for criminal recklessness as a Class A misdemeanor and imposed
a one-year suspended sentence.
[10] Wallace now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[11] On appeal, Wallace solely challenges the trial court’s admission of the 9-1-1
recording into evidence. It is well established that “[t]he decision to admit or
exclude evidence falls within the sound discretion of the trial court, and we
review that decision only for an abuse of discretion.” Gayden v. State, 863
N.E.2d 1193, 1195 (Ind. Ct. App. 2007), trans. denied. It is an abuse of
discretion if the trial court’s “decision is clearly against the logic and effect of
the facts and circumstances before the trial court.” Id. On review, our court
does not reweigh evidence, and we consider conflicting evidence in favor of the
trial court’s ruling. King v. State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013),
trans. denied. Uncontested evidence is considered in the defendant’s favor. Id.
Although Wallace’s argument on appeal lacks cogency, her bases for
challenging the admission of the 9-1-1 recording generally appear to reiterate
the objections she raised at trial: hearsay, lack of confrontation, and unfair
prejudice. See Ind. Appellate Rule 46(A)(8)(a) (requiring an appellant’s
arguments to be “supported by cogent reasoning”).
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II. Hearsay
[12] Wallace makes a perfunctory claim that the 9-1-1 recording should have been
excluded as inadmissible hearsay. “Hearsay is an out-of-court statement offered
to prove the truth of the matter asserted and is inadmissible unless it falls under
a hearsay exception.” Young v. State, 980 N.E.2d 412, 418 (Ind. Ct. App. 2012)
(citing Ind. Evidence Rule 801); see Evid. R. 802. In this case, the parties do not
dispute that Jackson’s recorded call to 9-1-1 meets the definition of hearsay.
Wallace contends that “[n]o hint exists in the record that [the 9-1-1 recording]
was considered for any limited purpose, or under an exception to the rules
against hearsay.” (Appellant’s Br. p. 12). However, during the trial, the State
offered two exceptions to the hearsay rule to support admitting the 9-1-1
recording: as an excited utterance pursuant to Indiana Evidence Rule 803(2),
or a present sense impression under Indiana Evidence Rule 803(1). The trial
court agreed that “it would be a present sense impression” and that Jackson’s
statements were made in the course of “an ongoing emergency.” (Tr. Vol. II, p.
22).
[13] Although the trial court seems to have admitted the 9-1-1 recording under the
present sense impression exception to the hearsay rule, it is well established that
our court may affirm an evidentiary decision based on any legal theory
supported by the record. Edwards v. State, 724 N.E.2d 616, 620-21 (Ind. Ct.
App. 2000), trans. denied. We choose to dispose of this matter by looking to the
excited utterance exception set forth in Indiana Evidence Rule 803(2). An
excited utterance is “[a] statement relating to a startling event or condition,
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made while the declarant was under the stress of excitement that it caused.”
Evid. R. 803(2).
[14] As indicated by Rule 803(2), the test for determining whether the excited
utterance exception applies requires three elements: “(1) a startling event or
condition has occurred; (2) the declarant made a statement while under the
stress or excitement caused by the event or condition; and (3) the statement was
related to the event or condition.” Teague v. State, 978 N.E.2d 1183, 1187 (Ind.
Ct. App. 2012) (internal quotation marks omitted). “This test is not mechanical
and admissibility turns on whether the statement was inherently reliable
because the witness was under the stress of the event and unlikely to make
deliberate falsifications.” Id. (internal quotation marks omitted). “An excited
utterance can be made in response to a question so long as the statement is
unrehearsed and is made under the stress of excitement from the event.” Id.
[15] In the present case, Jackson called 9-1-1 in the midst of a serious altercation.
Although Jackson did not specifically identify either participant, he urged the
police department to respond quickly because two women were about to fight,
and a baby was present. Thereafter, Jackson failed to respond to the 9-1-1
operator’s questions and, in fact, may have believed that he had disconnected
the call. Nevertheless, despite the yelling and commotion in the background,
Jackson can be heard encouraging one woman to shoot the other and advising
the same woman to collect her firearm and flee before the arrival of the police.
It is apparent throughout the 9-1-1 call that Jackson was not reflecting prior to
making any of his statements. See id. at 1188. Rather, he was speaking in the
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heat of the moment in response to the excitement of the unfolding altercation
between Wallace and Cline. We find that this clearly satisfies the requirements
for an excited utterance. Therefore, the trial court did not abuse its discretion in
admitting the 9-1-1 recording as there is a valid exception to the hearsay rule.
II. Confrontation Rights
[16] Wallace also claims that the introduction of the 9-1-1 recording “violated the
confrontation clause of the Sixth Amendment to the Constitution of the United
States.” 1 (Appellant’s Br. p. 11). In particular, Wallace asserts that, over her
objection, the trial court “admitted the testimonial out of court statements of
the State’s witness Jackson, who did not testify and was not otherwise subject to
[d]efense examination, and then used these out of court statements as proof of
the matters asserted therein in a most explicit and uncomplicated manner.”
(Appellant’s Br. p. 14). The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” “The right to confront witnesses, as granted by the
federal . . . [C]onstitution[], includes the right of full, adequate, and effective
cross-examination, which is fundamental and essential to a fair trial.”
Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009). As announced by
the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004),
1
Wallace also asserts that the admission of the 9-1-1 recording violated her confrontation rights under
“Article 1, Sec[tion] 11 [sic] of the Constitution of the State of Indiana.” (Appellant’s Br. p. 11). Other than
a cursory mention of the Indiana provision, Wallace does not further develop this argument and, therefore,
has waived it. See Jackson v. State, 735 N.E.2d 1146, 1150 n.1 (Ind. 2000).
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“the Sixth Amendment does not permit the admission of ‘testimonial’
statements of a witness who does not appear at trial unless he or she is
unavailable to testify and the defendant had a prior opportunity for cross-
examination of the witness.” Collins v. State, 873 N.E.2d 149, 153 (Ind. Ct.
App. 2007), trans. denied.
[17] Accordingly, whether Wallace’s confrontation rights were violated depends
upon whether Jackson’s statements to the 9-1-1 operator were testimonial or
not.
[S]tatements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.
Id. at 154 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). In evaluating
whether statements at issue are non-testimonial, courts usually consider:
(1) whether the declarant was describing past events or current
events, (2) whether the declarant was facing an ongoing
emergency, (3) whether the questions asked by law enforcement
were such that they elicited responses necessary to resolve the
present emergency rather than learn about past events, and (4)
the level of formality of the interrogation.
Id. (citing Davis, 547 U.S. at 822).
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[18] Here, Wallace asserts that Jackson’s statements were testimonial because
[t]here was a minimal threat to Jackson at the time of the out of
court statements, and the purpose of the questioning leading to
the out of court statements was certainly for the purpose of
establishing events relevant to Wallace’s later prosecution, in
particular the existence or nonexistence of factors relevant to her
defense of [s]elf [d]efense, and as such the admission of the out of
court statement constitutes . . . reversible error.
(Appellant’s Br. p. 14). We disagree.
[19] The 9-1-1 recording reveals that Jackson called the police to report the ongoing
incident—namely, that a fight between two females was imminent; there was a
baby present; and that the police “need[ed] to get here, hurry up.” (State’s Exh.
1). In an obvious attempt to gauge the present danger of the situation, the
dispatcher asked whether either of the females had a weapon, but Jackson
offered no response. Jackson’s subsequent urging of someone to “do it, shoot
the shit outta the bitch” illustrated the severity of the situation as it was
unfolding. (State’s Exh. 1). Although Jackson also yelled for “LaLa” to “get
your gun and go” because the “police are on the way,” this was not responsive
to any question posed by law enforcement. (State’s Exh. 1). Moreover, any
statements offered by Jackson that may have incriminated Wallace were not
elicited “in a relatively tranquil police station interrogation room.” Collins, 873
N.E.2d at 155. Rather, Jackson called to report an emergency, and his
subsequent voluntary statements were clearly made in response to the ongoing
situation. As such, Jackson’s statements to the 9-1-1 operator were not
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testimonial, and the admission of the recording did not violate Wallace’s
confrontation rights.
III. Unfair Prejudice
[20] Wallace further claims that “there was a substantial danger of unfair prejudice”
in admitting the 9-1-1 recording. Pursuant to Indiana Evidence Rule 403, the
trial court “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” “The balancing of the
probative value against the danger of unfair prejudice must be determined with
reference to the issue to be proved by the evidence.” Bryant v. State, 984 N.E.2d
240, 249 (Ind. Ct. App. 2013), trans. denied. The weighing of the probative
value of evidence against the danger of unfair prejudice “is a discretionary task
best performed by the trial court.” Id.
[21] Wallace contends that the admission of the 9-1-1 recording was unfairly
prejudicial because she was unable to contradict Jackson’s statements while
also maintaining her 5th Amendment right to remain silent. We find no merit in
Wallace’s claim. As the State points out, “[a]ll incriminating evidence may
have that effect but that does not render it unduly prejudicial, and [Wallace]
cites to no legal authority to suggest that it does.” (State’s Br. p. 19 n.7
(emphasis added)). Furthermore, the relevant issue for the fact-finder was
whether Wallace fired her handgun in self-defense against Cline, and the 9-1-1
call assisted the trial court with making a credibility determination concerning
this fact. We find no basis in the record for reversing the trial court’s decision.
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CONCLUSION
[22] Based on the foregoing, we conclude that the trial court acted within its
discretion in admitting the recording of the 9-1-1 call into evidence.
[23] Affirmed.
[24] Najam, J. and Bradford, J. concur
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