Wayne Hurd v. State of Indiana

FOR PUBLICATION
May 21 2014, 10:38 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL M. SCHUMM GREGORY F. ZOELLER
Clinical Professor of Law Attorney General of Indiana
DANIELLE M. TEAGARDEN LARRY D. ALLEN
Certified Legal Intern Deputy Attorney General
Appellate Clinic Indianapolis, Indiana
I.U. Robert H. McKinney School of Law
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WAYNE HURD, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1309-CR-753
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy M. Jones, Judge
Cause No. 49F08-1212-CM-81946
May 21, 2014
OPINION - FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Wayne Hurd was convicted of Class B misdemeanor battery following a nighttime
incident at an Indianapolis bus stop. At his bench trial, the trial court prohibited him from
calling his mother as a witness because she was not disclosed until the day of trial. The
trial court sentenced Hurd to probation, which included a condition that prohibited him
from going between 48th Street to the north, 28th Street to the south, Fall Creek Parkway
to the east, and Martin Luther King Jr. Street to the west.
We find that even if the trial court abused its discretion in excluding Hurd’s mother
as a witness, the error was harmless because the offer of proof was not specific as to the
substance of Hurd’s mother’s testimony, she was not present at the bus stop, and the trial
court found the victim’s testimony credible and Hurd’s testimony to have gaps. However,
we find that the trial court abused its discretion in imposing the probation condition because
it was not reasonably related to Hurd’s treatment and the protection of the public safety.
We therefore affirm in part and reverse and remand in part.
Facts and Procedural History
In November 2012, Susan Schneider took an IndyGo bus home from work as she
had done many times before. She got off the bus at 39th Street and College Avenue in
Indianapolis around 8:45 p.m. As Susan started walking home, which was about one block
away from the bus stop, Hurd approached her from behind, grabbed her right shoulder, and
swung her around. Susan did not know Hurd. Hurd used enough force that Susan almost
lost her footing. Susan kicked Hurd in the groin, causing him to fall to the ground.
Frightened, Susan ran home and barricaded herself inside. She immediately called her
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long-term, live-in boyfriend Douglas Forrest, who was on duty at the time as a sergeant for
the Indianapolis Metropolitan Police Department.
Because Sergeant Forrest was nearby, he drove by the bus stop. Based on Susan’s
description, Sergeant Forrest apprehended Hurd, handcuffed him, and called for another
officer. Officer Christopher Cooper responded and spoke with Susan. Officer Cooper then
drove Susan to Sergeant Forrest’s location. Susan identified Hurd as the person who had
assaulted her. Tr. p. 21. Hurd told Officer Cooper that he thought Susan was somebody
else. Id.
The State charged Hurd with Class B misdemeanor battery. Hurd was represented
by a public defender.
A bench trial was held on August 7, 2013. The day before trial, a different public
defender took over Hurd’s case. At the beginning of trial, the trial court ordered anyone
who was going to be a witness to stand and be sworn in. When a woman stood up, the trial
court said, “I’m not sure who this lady is.” Id. at 5. Defense counsel said it was Hurd’s
mother and he was not sure if he was going to call her as a witness. Id.
Hurd testified in his own defense that he was in the area of 39th and College on the
night in question because he was going to Church’s Chicken to eat. He said he saw Susan,
who was the only person at the bus stop, and approached her from the front to ask her what
time the bus came. Hurd, who lived on the east side of Indianapolis, needed to take the
bus home. Hurd said as soon as he asked Susan what time the bus came, she ran away.
Hurd denied touching Susan and denied that Susan kneed him in the groin. Id. at 26. Hurd
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explained that he had been diagnosed with paranoid schizophrenia and was taking
medication in November 2012.
After Hurd testified, defense counsel stated, “I’m just going to grab his mother.” Id.
at 32. The State immediately objected because “[t]his is the first time the State is hearing
that this particular individual might be called as a witness. The State doesn’t even know
her name at this point.” Id. at 32. When the trial court asked if Hurd’s mother had been
discovered as a potential witness, defense counsel responded:
I apologize, Your Honor, I’m not entirely sure. I actually just got [this case]
yesterday around three o’clock. I know Ms. Wright was handling it before.
I just assumed that she had discovered all of the witnesses since it was set for
trial. . . . I did not know this witness existed until I talked to her today . . . .
Id. at 33. The trial court ruled:
Well, it doesn’t appear as though there was ever any notice given that this
particular person was a witness. And having this happen here today the day
of trial . . . I’m not inclined to have her testify. The other thing I guess I
would caution is what relevance she might add. I’ve heard absolutely no
testimony—I don’t even know her name—I’ve heard no testimony of her
being present during this incident whatsoever. If she is able to provide
historical information regarding the mental illness that’s come up a few times
during the course of the trial today that would be maybe appropriate for other
times in these proceedings. But not so much for the trial so I’m not going to
have—due to the late discovery notice here—I’m not going to have her . . .
be called as a witness here today.
Id. Defense counsel then made an offer of proof about Hurd’s character for non-aggressive
behavior. At this point, Hurd’s mother was identified as Brenda Joyce Hayden. Brenda
said that if she were allowed to testify at trial, she would testify about the topics of Hurd’s
mental-health issues, how his medication affects him, his character and tendency for
aggressiveness, and his general disposition. Id. at 35. Notably, defense counsel did not
ask Brenda questions about these topics.
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The trial court acknowledged that the evidence was disputed. Id. at 38. However,
the court found that Susan was “quite credible” and that there were “a lot of gaps” in Hurd’s
testimony. Id.; see also id. at 41 (trial court: “I don’t believe that [Susan] was being
untruthful. I don’t believe that she has any reason to.”). Concluding that the State met its
burden of proving beyond a reasonable doubt that Hurd committed Class B misdemeanor
battery, the court found him guilty.
The case immediately proceeded to sentencing. During sentencing, Brenda testified
about Hurd’s mental illness and ongoing treatment at Gallahue Mental Health. Brenda also
said she was thirty-five-year-old Hurd’s guardian and that he lived with her, but he visited
his friends several times a week in the area of 38th and College, often spending the night
with them. Brenda, however, did not allow Hurd’s friends to visit him at their house.
After listening to complaints about Hurd’s activities near 38th Street, including
reports of trespassing, the trial court sentenced Hurd to a suspended sentence of 178 days
and non-reporting probation. As a condition of Hurd’s probation, the trial court ordered
him to comply with his treatment plan at Gallahue, including taking his medicine, and not
to contact Susan. In addition, the court ordered Hurd to stay away from a five-block radius
of 38th and College. Id. at 47. The court explained to Hurd that if he went back to that
area, he would go to jail. As the trial court was appointing appellate counsel for Hurd, the
prosecutor interrupted and explained that Sergeant Forrest would like the stay-away order
extended from five blocks of 38th and College to two miles of 38th and College. Id. at 50.
Sergeant Forrest suggested 48th Street to the north, 28th Street to the south, Fall Creek
Parkway to the east, and Martin Luther King Jr. Street to the west. Id. Defense counsel
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objected because “[t]he majority of that would be a public area. You know, we’re fine
with the Court saying that he can’t go to you know, maybe private areas in that vicinity but
a two mile[] radius; there’s sidewalks you know, it’s a largely public area.” Id. The trial
court, almost predicting what was to come, said to Hurd, “I understand what your mom is
saying that you’re not going to get this.” Id. Nevertheless, the trial court extended the
stay-away order and cautioned Hurd from “get[ting] on the bus[] and head[ing] over . . . to
the middle part of the city.” Id. at 51.
Less than two weeks later, on August 19, 2013, the probation department filed a
notice of probation violation alleging that Hurd violated his probation because he was
arrested for being in the area of 4100 N. College Avenue on August 11. Appellant’s App.
p. 24. The petition was later amended to include two additional allegations. Id. at 25.
Three months after sentencing, on November 14, 2013, the trial court modified the
stay-away order to limit it to “a one block radius” of Susan’s home. Id. at 15 (capitalization
omitted). According to the CCS, the probation department was notified of this change. Id.
Hurd now appeals.
Discussion and Decision
Hurd contends that the trial court erred in excluding his mother as a witness and in
imposing a broad and unduly cumbersome probation condition.
I. Exclusion of Late-Disclosed Witness
Hurd contends that the trial court erred in excluding his mother as a witness even
though she was not disclosed until the day of trial. Hurd claims that according to the offer
of proof, his mother would have testified about his character for peacefulness, which would
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have been relevant in establishing whether he knowingly touched Susan in a rude, insolent,
or angry manner and would have been admissible pursuant to Indiana Evidence Rules
404(a)(2)(A) and 405.
Trial courts have inherent discretionary power on the admission of evidence, and
their decisions are reviewed only for an abuse of that discretion. Vasquez v. State, 868
N.E.2d 473, 476 (Ind. 2007). In addition, Indiana jurisprudence recognizes a strong
presumption to allow defense testimony, even of late-disclosed witnesses: “‘The most
extreme sanction of witness exclusion should not be employed unless the defendant’s
breach has been purposeful or intentional or unless substantial and irreparable prejudice
would result to the State.’” Id. (quoting Wiseheart v. State, 491 N.E.2d 985, 991 (Ind.
1986)).
Here, however, we find that even if the trial court abused its discretion in excluding
Hurd’s mother Brenda as a witness, the error was harmless. Not every trial error requires
reversal. Turben v. State, 726 N.E.2d 1245, 1247 (Ind. 2000). Errors in the admission or
exclusion of evidence are to be disregarded as harmless unless they affect the substantial
rights of the party. Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995); see also Ind. Trial
Rule 61. Moreover, in a bench trial, the harm from any evidentiary error is lessened. Berry
v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000).
We first point out that the offer of proof was not very specific as to what Brenda’s
testimony would have been:
Q Ma’am, could you state your name again?
A Yes, Brenda Joyce Hayden.
Q Okay. And what is your relationship to Mr. Hurd?
A I am Wayne’s mother and legal guardian.
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Q Okay. And are you familiar with his mental health issues?
A Yes, I am.
Q Okay. Are you familiar with how his medication affects him?
A Yes, I am.
Q And are you familiar with his character and his tendencies for
aggressiveness and behavior?
A Yes, I am.
Q And [h]is general disposition?
A Yes.
Tr. p. 35. This offer of proof is, at best, minimally sufficient to convey the point of
Brenda’s testimony. See State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005), reh’g denied.
Looking at this offer generously, it shows that Brenda would have testified that Hurd was
generally non-aggressive when taking his medication.
But as the trial court explained, see Tr. p. 33, Brenda’s testimony would have limited
relevance because she was not present at the bus stop. Cf. S.T. v. State, 764 N.E.2d 632,
636 (Ind. 2002) (holding that the juvenile should have been allowed to present the
testimony of both his mother and friend at the fact-finding hearing even though they were
belatedly disclosed because although they were not exactly objective and detached
witnesses, “they nonetheless would have added a different perspective to the [juvenile’s]
version of events and reinforced his account, and therefore, the exclusion of the witnesses
unnecessarily prejudiced [him].” (quotation omitted)). And Brenda’s testimony would
have required the trial court to believe that Hurd was taking his medication at the time of
the incident. See Tr. p. 38 (trial court: “And I don’t know necessarily if you have a clear
recollection of what did actually happen, I don’t know if that was based on the medication
you were taking at that time or you weren’t taking.”). Even assuming that Hurd is a
generally peaceful person, this does not negate Susan’s version of events, which the trial
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court found “quite credible,” account for the “gaps” in Hurd’s testimony that the trial court
found, or explain Hurd’s statement to Officer Cooper at the scene that he thought Susan
was somebody else. Therefore, even if the trial court abused its discretion in excluding
Brenda as a witness, the error was harmless. See, e.g., Williams v. State, 714 N.E.2d 644,
652 (Ind. 1999) (finding exclusion of belatedly disclosed witness harmless where DNA
and other evidence connected defendant to the crime); Farris v. State, 818 N.E.2d 63, 70
(Ind. Ct. App. 2004) (finding exclusion of belatedly disclosed witness harmless where there
was uncertainty about substance of witness’s testimony and evidence against defendant
was otherwise strong), trans. denied.
II. Stay-Away Order
Next, Hurd contends that the trial court erred in imposing a broad and unduly
cumbersome probation condition that prohibited him “from being within hundreds of city
blocks in the central part of Indianapolis.” Appellant’s Br. p. 10. The State replies that
this issue is moot because after the probation department filed the amended notice of
probation violation, the trial court modified the stay-away order to only a one-block radius
of Susan’s home. See Samm v. State, 893 N.E.2d 761, 765 (Ind. Ct. App. 2008) (“A case
is deemed moot when no effective relief can be rendered to the parties before the court.”).
Hurd responds that because this modification was prospective only and the notice of
probation violation remains pending, the issue is not moot.
Because it appears from the record before us that this notice of probation violation
remains pending,1 we agree with Hurd that the issue is not moot. We therefore address
1
The CCS contained in the record is dated January 29, 2014.
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whether the probation condition that prohibited Hurd from going between 48th Street to
the north, 28th Street to the south, Fall Creek Parkway to the east, and Martin Luther King
Jr. Street to the west was broad and unduly cumbersome when the trial court originally
imposed it.
Probation is a criminal sanction whereby a defendant specifically agrees to accept
conditions upon his behavior in lieu of imprisonment. Bratcher v. State, 999 N.E.2d 864,
873 (Ind. Ct. App. 2013), trans. denied. Trial courts have broad discretion in determining
the appropriate conditions of a defendant’s probation. Id. This discretion is limited only
by the principle that the conditions imposed must be reasonably related to the treatment of
the defendant and the protection of public safety. Id. Thus, our review is essentially limited
to determining whether the conditions placed on the defendant are reasonably related to
attaining these goals. Id. We will not set aside a trial court’s probation terms unless it has
abused its discretion. Id.
We agree with Hurd that the probation condition was not reasonably related to his
treatment and the protection of the public safety. It was reasonable for the trial court to
express concern for Hurd’s mental health, and the court did so by ordering Hurd to comply
with his treatment regimen at Gallahue. Further, given that Hurd’s conviction was for a
crime against a person, it was also reasonable for the court to prohibit contact with Susan.
However, prohibiting Hurd from entering a significant area of the central part of
Indianapolis is not tailored to his rehabilitation or public safety. Accordingly, we find that
the trial court abused its discretion in originally imposing the probation condition that
prohibited Hurd from going between 48th Street to the north, 28th Street to the south, Fall
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Creek Parkway to the east, and Martin Luther King Jr. Street to the west. We therefore
remand this case to the trial court with instructions to vacate any pending probation
violations based upon this original condition.
Affirmed in part and reversed and remanded in part.
NAJAM, J., and BROWN, J., concur.
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