Larell P. Isom v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 16 2017, 11:02 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jill A. Gonzalez Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larell P. Isom, May 16, 2017
Appellant-Defendant, Court of Appeals Case No.
18A02-1611-CR-2642
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Thomas A.
Appellee-Plaintiff. Cannon, Jr., Judge
Trial Court Cause No.
18C05-1606-F6-390
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Larell P. Isom (Isom), appeals his conviction for battery
with moderate bodily injury, a Level 6 felony, Ind. Code § 35-42-2-1(b)(1).
[2] We affirm.
ISSUE
[3] Isom presents us with one issue on appeal, which we restate as: Whether
fundamental error occurred when the trial court admitted the victim’s
statement.
FACTS AND PROCEDURAL HISTORY
[4] Around 6:30 a.m. on June 20, 2016, a 911 call was placed from 2545 West
White River Boulevard, Apartment #3 in Muncie, Indiana. The call ended
when the caller hung up. Despite a call back by dispatch, no one answered.
Muncie Police Officers Michael Edwards (Officer Edwards) and Chase Winkle
(Officer Winkle) were sent by dispatch to check on the caller. When the officers
approached the apartment, they found the apartment door open due to a
“visibly broken” latch. (Transcript p. 105). Officer Winkle knocked on the
open door. Receiving no response, Officer Edwards pushed the door open.
“The minute [he] pushed it open, a female came running out[.]” (Tr. p. 105).
The female was later identified as Isom’s wife, Heather Isom (Heather).
Heather was naked and she had visible marks on her face. Her right eye “had
blood coming down.” (Tr. p. 105). There were red marks on her shoulders.
Visibly upset, Heather pointed back into the room “and she’s advising that ‘he’s
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doing it again.’” (Tr. p. 105). Officer Winkle went inside the apartment,
followed by Officer Edwards and Heather. Inside, they found Isom. Heather is
“addressing [] [Isom] as she’s pointing to him as [Officer Winkle is] grabbing
him and putting him in handcuffs.” (Tr. p. 107). Because Heather and Isom
were yelling back and forth, Officer Edwards escorted Heather to the bedroom
to get dressed. Heather informed him that “[s]he couldn’t keep him away and
that he’s been beating her.” (Tr. p. 112). Isom “kept yelling[,] saying that she’s
lying, she’s not telling the truth, she’s lying and that she’s not supposed to be
there, that he hadn’t touched her.” (Tr. p. 112).
[5] On June 23, 2016, the State filed an Information charging Isom with Level 6
felony battery. During the motion in limine hearing on August 30, 2016, Isom
argued that Heather’s initial statement—“he’s doing it again”—was
inadmissible under Indiana Evidence Rule 404(b). (Tr. p. 105). Upon hearing
arguments, the trial court concluded:
That is admissible, not only under 803 as an excited utterance of
the victim, but it is also admissible under 404, exception to
404(b). I think they, the case law has that under motive, but it’s
really admissible to show the relationship between the defendant
and the victim. Numerous cases have held that where
relationship between parties is characterized by frequent
conflict[,] [e]vidence of the defendant’s prior assaults and
confrontation with the victim may be admitted to show the
relationship between the parties and the motive for committing
the crime.
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(Tr. p. 35). During this hearing, Isom, unsolicited, informed the trial court that
Heather would not be attending the trial as there was a warrant out for her
arrest.
[6] On September 1, 2016, the trial court conducted a jury trial. Heather did not
appear and her statement to Officer Edwards was admitted without Isom
objecting. At the close of the evidence, the jury returned a guilty verdict. On
October 24, 2016, during the sentencing hearing, the trial court imposed a two-
year executed sentence with direct commitment to home detention through
Delaware County Community Corrections.
[7] Isom now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Isom contends that the trial court abused its discretion by admitting Heather’s
statement in violation of the Confrontation Clause of the Sixth Amendment to
the United States Constitution.
[9] During the hearing on Isom’s motion in limine, Isom challenged the
admissibility of Heather’s statement under Indiana Evidence Rule 404(b). The
trial court concluded that the statement “he’s doing it again” was admissible
under both the excited utterance exception to the hearsay rule and Evidence
Rule 404(b). (Tr. p. 105). At the jury trial, Heather did not appear and Officer
Edwards reiterated Heather’s statement to the jury without objection.
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[10] First, we note that a motion in limine, without a contemporaneous objection at
trial does not preserve an error for appeal. See Hill v. State, 51 N.E.3d 446, 451
(Ind. Ct. App. 2016). Second, Isom based his pre-trial objection to Heather’s
statement on Ind. Evid. R. 404(b). On appeal, he now challenges the admission
of the statement under the Confrontation Clause. 1 “It is well-settled in Indiana
that a defendant may not argue one ground for objection at trial and then raise
new grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000).
[11] A failure in objecting at trial constitutes waiver of review unless an error is so
fundamental that it denied the accused a fair trial. Absher v. State, 866 N.E.2d
350, 355 (Ind. Ct. App. 2007). Our supreme court made the doctrine of
fundamental error only available in egregious circumstances. Id. The mere fact
that error occurred and that it was prejudicial will not satisfy the fundamental
error rule. Id. Likewise, it is not enough, in order to invoke this doctrine, to
urge that a constitutional right is implicated. Id. To qualify as a fundamental
error, “an error must be so prejudicial to the rights of the defendant as to make
a fair trial impossible” and must “constitute a blatant violation of basic
principles, the harm or potential for harm must be substantial, and the resulting
error must deny the defendant fundamental due process. Benson v. State, 762
N.E.2d 748, 755 (Ind. 2002) (internal quotations and citations omitted).
1
At no point during these proceedings—either before the trial court or on appeal—did Isom challenge the
admission of the statement under the excited utterance exception to the hearsay rule.
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[12] Isom contends the trial court violated his federal constitutional right of
confrontation because Heather’s statement was admitted while she was
unavailable for cross-examination. The Confrontation Clause of the Sixth
Amendment to the United States Constitution, which is made applicable to the
States by the Fourteenth Amendment, provides in relevant part: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. CONST. AMEND. VI. The United States
Supreme Court has determined that a statement violated the Confrontation
Clause if, among other things, it is “testimonial” in nature. Crawford v.
Washington, 541 U.S. 36, 68-69, 124 S.Ct.1354, 158 L. Ed. 2d 177 (2004). To
determine whether a statement is testimonial, we must decide whether it has “a
primary purpose of creating an out-of-court substitute for trial testimony.”
Michigan v. Bryant, 562 U.S. 344, 357, 131 S.Ct.1143, 1155, 179 L. Ed. 2d 93
(2011). “Statements 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.” Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct.2266, 165
L. Ed. 2d 224 (2006). Conversely, a declarant’s statements “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.
(footnote omitted).
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[13] In order to determine whether a statement is testimonial versus non-testimonial,
we must consider: (1) whether the declarant is describing present or past
events; (2) whether there is an ongoing emergency at the time that the
statements are made; (3) whether the nature of the questions asked and the
responses given were made in an effort to resolve a present emergency; and (4)
the degree of formality during the course of the police questioning. Id. at 827,
126 S. Ct. 2266. Simply put, statements generally elicited from individuals
seeking help during an ongoing emergency are not classified as testimonial. See
id. at 828, 126 S. Ct. 2266.
[14] Application of Crawford and Davis indicate that Isom’s claim is without merit.
The facts here objectively demonstrate that Heather’s statement was uttered
during an ongoing emergency. The officers encountered Heather on the scene,
rather than at the police department. Sent to investigate a 911 call, they were
faced with an open and broken apartment door. As soon as Officer Winkle
pushed the door open, they noticed Heather who was actively bleeding and
naked, running towards them. Without being asked any questions, Heather
told the officers: “[H]e’s doing it again.” (Tr. p. 105). At that point, Heather
had not been identified, nor had the officers located Isom, or received any
details about the situation. Rather, Heather’s statement was spontaneous upon
seeing the officers. There is no evidence that an interrogation even began
before Heather made the challenged statement.
[15] In sum, the officers responded to an interrupted 911 call. They did not know if
a crime was occurring, the circumstances thereof, or the parties involved. At
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the time the statement was made, Heather’s demeanor and appearance clearly
indicated she was “seeking help during an ongoing emergency.” Davis, 547
U.S. at 828, 126 S. Ct. 2266. Thus, the Confrontation Clause did not bar the
admission of Heather’s statement at trial. Accordingly, the trial court made no
error, let alone a fundamental one, by admitting Heather’s statement. 2
CONCLUSION
[16] Based on the foregoing, we hold that the trial court did not abuse its discretion
when it admitted the victim’s statement.
[17] Affirmed.
[18] Najam, J. and Bradford, J. concur
2
In his appellate brief, Isom raised two issues: (1) whether the admission of Heather’s statement was barred
by the Confrontation Clause and (2) whether Heather “was unavailable according to law.” (Appellant’s Br.
p. 4). In the discussion section of his Brief, Isom notified this court that he would “make his argument for
both issues together[.]” (Appellant’s Br. p. 8). However, by analyzing both issues together, Isom did not
make a cogent argument with respect to his unavailability claim. As our supreme court noted in Garner v.
State, 777 N.E.2d 721, 724 (Ind. 2002), “[a] witness is unavailable for purposes of the Confrontation Clause
requirement only if the prosecution has made a good faith effort to obtain the witness’s presence at trial.”
Because Isom did not develop an argument with respect to the good faith requirement of the unavailability
prong, he waived this issue for our review. See Ind. Appellate Rule 46(A)(8).
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