Phillip Ealy ("defendant") was convicted of murder and of carrying a handgun without a license. He was sentenced to sixty years for murder and one year for carrying a handgun without a license, the sentences to be served concurrently. He now challenges his murder conviction and sentence. On appeal, he raises four issues: (1) whether the trial court erred by admitting an autopsy report into evidence over defendant's hearsay objections, (2) whether the trial court erred by allowing a police detective to testify, over hearsay objections, about his conversations with individuals during the course of his investigation, (3) whether the evidence was sufficient to sustain the conviction, and (4) whether the sentence is manifestly unreasonable. We affirm.
In the early morning of December 11, 1993, Lamont Puckett was selling cocaine at the bottom of an apartment building stairwell. He was accompanied by his friend, Quincy Dennis. While in the stairwell, Dennis saw defendant standing at the top of the stairs. As defendant descended the stairs he asked, "Lamont ... Hey, man, where's my money at?" (R. at 399.) Without giving Puckett an opportunity to respond, defendant pulled out a handgun and fired. Puckett fell, and defendant ran back up the steps. Puckett died from a gunshot wound to the chest.
Indianapolis Police Detective Thomas Minor investigated the shooting. When Detective Minor spoke to Dennis at the scene, Dennis claimed that he had been at a telephone at the time of shooting and that he heard the shot but did not know what happened. Others in the building also claimed to have heard the shot, but did not see anything. As he questioned people in the neighborhood, Detective Minor learned that the nickname "Philco" had become associated with the shooting. Detective Minor also learned that Philco is defendant's nickname.
A few days after the shooting, Dennis went to Detective Minor's office to give a statement. He told Detective Minor the same information that he testified to at trial, for example describing what he had seen and naming defendant as the gunman. The next day, Detective Minor obtained a warrant for defendant's arrest. After a jury trial, defendant was convicted of the murder of Lamont Puckett. He was also convicted of one count of carrying a handgun without a license.
Defendant argues that the trial court erred by admitting the autopsy report into evidence. He challenges the foundational elements for admission and claims that the autopsy report from the Marion County Coroner's Office contained inadmissible hearsay. A trial court has broad discretion in ruling on
First, defendant challenges admissibility under IRE 902(9). Specifically, defendant argues that the self authentication requirements as set out in the rule were not met. Since defendant did not raise this issue at trial it is waived. Coates v. State, 650 N.E.2d 58 (Ind.Ct.App.1995).
Next, defendant challenges the autopsy report as inadmissible hearsay. Defendant argues that even if the autopsy report was self-authenticating, this, in and of itself, does not provide an exception to the hearsay rules. This is correct. Self-authentication merely relieves the proponent from providing foundational testimony; it is not a hearsay exception. Coates, 650 N.E.2d at 62.
As earlier noted, defendant did offer a contemporaneous objection based on hearsay, which the trial judge overruled. Accepting that an autopsy report contains hearsay, we must determine if it falls under any exception which would make it admissible hearsay. Defendant concedes that prior to the adoption of the Indiana Rules of Evidence, autopsy reports were admissible under the common law public records exception. See, e.g., McGraw v. State, 426 N.E.2d 1290 (Ind. 1981). However, defendant argues that the newly adopted IRE 803(8) is more specific and restrictive than the common law rule. It reads:
Clearly, autopsy reports fall within the first part of the public records exception. An autopsy report is generally trustworthy and is either "a report of a public office setting forth matters observed pursuant to duty imposed by law and as to which there was a duty to report" or "is a report setting forth factual findings resulting from an investigation made pursuant to authority granted by law."
Under a literal reading of IRE 803(8), when a report contains "factual findings" and is offered by the government in a criminal case, either the report itself is admissible, though with the "factual findings" removed, or the entire report is inadmissable. Under either reading, we are presented with two questions: A) What are factual findings?; and B) Even if something is a factual finding, can it still be admissible under IRE 803(8)?
This is a case of first impression under our recently adopted Rules of Evidence. IRE 803(8) is a verbatim rendition of Uniform Rules of Evidence ("URE") 803(8). UNIF. RULES OF EVIDENCE § 803(8) (1974). The URE is very similar to the Federal Rules of Evidence ("FRE") in many ways, and URE 803(8) is "quite similar to Federal Rule 803(8), although somewhat more restrictive."
The first question that we must address is what is meant by the words "factual findings." A "finding" is "[a] decision upon a question of fact reached as the result of a judicial examination or investigation by a court, jury, referee, coroner, etc." BLACK'S LAW DICTIONARY 569 (5th ed.1979). In other words, "a `finding' or a `finding of fact' refers to the result or conclusion drawn by an investigator, whether it be a fire inspector, judge, or jury, `from facts without exercise of legal judgment.'" Rainey v. Beech Aircraft Corp., 827 F.2d 1498, 1510 (11th Cir.1987) (Tjoflat, J., specially concurring), aff'd in part, rev'd in part, Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)
While we could stop at this point and posit a rule based solely upon whether a "factual finding" is involved, we do not think that would be wise. The several above approaches are good means of forming some conclusion as to whether something is a "factual finding." However, as the vagueness of
Rather than attempt to draw such an arbitrary line, we instead continue our analysis so that we may answer the second question of whether a "factual finding" such as an autopsy report may be admitted under 803(8)'s hearsay exception. In other words, what is IRE 803(8)(c) meant to exclude?
The Advisory Committee on the FRE noted their worry about using public records or reports that contain factual findings in a criminal case because of an "almost certain collision with confrontation rights which would result from their use against the accused in a criminal case." Rules of Evidence for the United States Courts and Magistrates, 56 F.R.D. 183, 313 (1973). In ruling on the public records hearsay exception, courts have disagreed on the meaning and extent of the exclusionary language of exception 803(8). 4 WEINSTEIN'S EVIDENCE, at 803-289.
At one extreme is an early Second Circuit decision interpreting FRE 803(8). In United States v. Oates, 560 F.2d 45 (2d Cir.1977), the Second Circuit addressed the question of whether the trial court erred by admitting into evidence two documentary exhibits, absent their author, which were crucial to the government's case and that pertained to a U.S. Customs Service chemist's report on a seized substance (the documents concluded that the substance was heroin). The Second Circuit analyzed the language of the rule and the legislative hearings concerning the rule. The Court noted: "We thus think it manifest that it was the clear intention of Congress to make evaluative [factual finding] and law enforcement reports absolutely inadmissible against defendants in criminal cases. Just as importantly, it must have been the unquestionable belief of Congress that the language of FRE 803(8)(B)
Courts and commentators have criticized the holding in Oates.
Thus, courts have been willing to go beyond the literal language of FRE 803(8)(B) in order to effect a more reasonable and workable rule. Rather than focusing just on the language of the rule, courts have instead focused on the setting of the investigation and/or report. If the police or governmental report was made in a non-adversarial situation and for non-litigative purposes, then courts generally conclude that the report is trustworthy within the confines of 803(8)'s hearsay exception because there was little motivation for fabrication.
We conclude, however, that just as we could not rest our decision at the "factual finding" point, neither can we rest our decision at this point because IRE 803(8)(c) addresses a slightly different concern than does FRE 803(8)(B). Therefore, we need to continue our analysis one step further to consider how other courts have ruled on factual findings.
A few state courts, which follow versions of the URE, have squarely addressed the issue of the admissibility of certain "factual findings." For instance, in Byrne v. State, 654 P.2d 795 (Alaska.Ct.App.1982), the Alaska Court of Appeals addressed whether a "breathalyzer packet"
The Delaware Superior Court in State v. Rivera, 515 A.2d 182 (Del.Sup.1986) addressed the issue of whether a toxicology report was admissible without the presence of the chemist who prepared the report. The court examined Oates, Quezada, and Byrne before it concluded that the toxicology report could not be admitted under DRE 803(8). Id. at 186. The court did not come to this conclusion, however, solely because the report contained factual findings. Rather, the court concluded that the report was inadmissible because it "is a report requiring
The Second Circuit, under the FRE, came to a similar conclusion in United States v. Pinto-Mejia, 720 F.2d 248 (2d Cir.1983), modified on other grounds, 728 F.2d 142 (1984). In Pinto-Mejia, the court ruled that a Venezuelan Ministry of Transportation and Communications, Bureau of Maritime Transportation and Traffic certificate was inadmissible under FRE 803(8)(C). In so ruling, the court noted that the certificate resolved a critical and disputed issue. Id. at 256. Furthermore, the court noted that the certificate was prepared in anticipation of litigation. Id. at 253, 258. Thus, the court held that the report was made inadmissible by FRE 803(8)(C).
To conclude, in discussing evidence rule 803(8) and the foundations upon which it is based, courts have voiced several concerns. The first of these is that 803(8) is meant as a watch guard against reports made in an adversarial setting because there is a possible motive to fabricate the contents of the report, and, therefore, the preparer of the report must be in court for cross-examination purposes. The second concern is that factual findings that pertain to a critical and contested issue in the case are worrisome without the presence of the author in court for cross-examination.
Therefore, a trial court must employ the following evaluative process when called upon to determine whether a piece of evidence is inadmissible under IRE 803(8)(c). First, the trial court must consider whether the "findings" objected to address a materially contested issue in the case. If they do not, then the safeguards provided by the rule sufficiently protect the defendant. For example, the contested evidence must still evince trustworthiness in all respects. Evid.R. 803(8). Furthermore, the public records and reports which would fall under IRE 803(8)(c) would be prepared by persons who are charged with that duty by law. In the face of such public duty and exposure, they have every incentive to properly do their job. "The hearsay exception for public records and reports is based on the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports." 13 R. MILLER, INDIANA PRACTICE, INDIANA EVIDENCE 652 (1995).
If, however, the "findings" which are objected to do address a material and contested issue, then the trial court must make further considerations. The second step which the trial court must take is to consider the nature of what is objected to. If the trial court can clearly find that a record or report contains no factual findings, then the evidence is not made inadmissible by 803(8)(c). Such evidence could be simple listings, or a simple recordation of numbers, and the like. However, if the evidence does or may contain "factual findings," then the court must address a third and final step. The court must determine whether the report was prepared for advocacy purposes or in anticipation of litigation. If it was not, then the evidence is admissible. As with the first step, the defendant is adequately protected by the rule and the presumptions upon which it is based. If the defendant can show that there is reason to doubt the trustworthiness of the report, then the rule protects him. If the defendant only disagrees with the conclusions, then defendant can challenge the conclusions through expert opinion or otherwise. If, however, the report was prepared for advocacy purposes, then the contested findings are inadmissible. It is in that situation, where a report's findings address a materially contested issue in the case and were prepared
As applied to the case at bar, the autopsy report was admissible. Under the first step in the analysis, there is nothing in the autopsy report which addresses a materially contested issue in the case. Primarily, there is no argument over the cause of death. Though defendant contends that the autopsy report's conclusion that a gunshot wound caused death was prejudicial because it strengthened Quincy Dennis' testimony, defendant never argues that the cause of death was anything other than by gunshot. Furthermore, the other statements in the report are not disputed, and, in fact, some were used to attack Dennis' testimony (for example by showing that there was no alcohol in victim's body as Dennis claimed and to show that the angle of the bullet entry did not conform with Dennis' testimony). The only issue in dispute was who shot the victim, an issue which the report does not address. Therefore, neither the report nor portions of it were made inadmissible by IRE 803(8)(c).
Assuming, for the sake of explanatory analysis only, that the report addressed a materially contested issue, we would next consider whether the report contained any "factual findings." Because the autopsy report may contain such findings, we would proceed to the third and final step of determining whether the report was prepared for advocacy purposes. As a general rule, the examiners who prepare the autopsy report do so for non-advocacy reasons. They are charged by law with the job of producing public documents relating to deaths. They do not know if a particular case will result in trial, nor do they know who a potential defendant might be. They are board certified pathologists
This result conforms with existing case law on the admissibility of autopsy reports. For example, it is relatively well established that the admission of autopsy reports does not violate a defendant's confrontation rights. The First Circuit has held that the introduction of an autopsy report for the purpose of proving the cause of death, without benefit of the medical examiner who prepared the report, did not violate the Confrontation Clause of the U.S. Constitution. Manocchio v. Moran, 919 F.2d 770 (1st Cir.1990). After examining each portion of the report (including the report's conclusion of cause of death), the Court held that the autopsy report contained "sufficient `particularized guarantees of trustworthiness' that its admission in the absence of live testimony by its preparer did not offend the Confrontation Clause." Id. at 777. See also United States v. Rosa, 11 F.3d 315 (2d Cir.1993) (holding that the reported observations in an autopsy report "bear sufficient indicia of reliability to satisfy the demands of the Confrontation Clause").
Furthermore, we note that our decision today is consistent with our own previous case law. In Indiana prior to the IRE, this Court has held that autopsy reports were admissible under the common law public documents exception to the hearsay rule. See McGraw v. State, 426 N.E.2d 1290 (Ind. 1981); Bean v. State, 267 Ind. 528, 371 N.E.2d 713 (1978); Collins v. State, 267 Ind. 233, 369 N.E.2d 422 (1977). The exception applied even in situations where the preparer of the report was not present in court to testify. See McGraw, 426 N.E.2d at 1291; Wright v. State, 266 Ind. 327, 363 N.E.2d 1221 (1977). Thus, we have before held that
Finally, in a separate but related argument, defendant contends that the trial court erred in allowing the expert witness to testify to his opinions and conclusions based upon his reading of the autopsy report. Defendant is incorrect. The IRE specifically allows that experts "may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field." Evid.R. 703. Prior to the enactment of the IRE, we long held it proper for an expert to give an opinion based upon an autopsy report prepared by another. See Lockhart v. State, 609 N.E.2d 1093, 1098 (Ind.1993). We see no reason to change that now. Furthermore, given that the autopsy report was admissible, the trial court did not err in allowing the expert to base his opinion upon it.
Defendant argues that the trial court erred when it allowed Detective Minor to testify, over defendant's repeated hearsay objections, as to the contents of his communications with potential witnesses during the course of his investigation.
In Craig v. State, 630 N.E.2d 207 (Ind.1994), this Court set forth the analysis to determine whether out-of-court statements made to police officers during their investigation are admissible as non-hearsay evidence. If the State argues that the statement is not being used to prove the truth of the matter asserted, but rather that it is being used for a different purpose, then the court should consider whether the suggested purpose is relevant to some issue in the case and whether the danger of prejudice outweighs its probative value. Id. at 211. When the State argues that the non-hearsay purpose is to show the propriety of the police initiating an investigation, and that issue is irrelevant, then the admission of the statement was error. Bonner v. State, 650 N.E.2d 1139, 1141 (Ind.1995). However, if the erroneously admitted evidence produced no prejudice, then there is no cause for reversal. Id.
In this case, Detective Minor was describing how he came to be investigating defendant as a possible suspect in this case. Detective Minor testified that he learned that the name "Philco" was associated with the crime. He did not testify about any particular statements, and he did not testify that anyone had named "Philco" as the gunman. Detective Minor further testified that he discovered that "Philco" was Phillip Ealy. This evidence was irrelevant to any issue in the case other than to show that defendant was involved in the crime. Therefore, the evidence was inadmissible, either as irrelevant or as hearsay. However, defendant was not prejudiced as Quincy Dennis' testimony was what provided the essential evidence against defendant.
Next, defendant argues that there is insufficient evidence to support the conviction. He argues that if the autopsy report and Detective Miller's testimony are inadmissible, then the only direct evidence to support the conviction is the testimony of Quincy Dennis. Defendant argues that Dennis' testimony at trial was inherently improbable, equivocal, uncorroborated, and riddled with inconsistencies.
In reviewing the sufficiency of the evidence, an appellate court neither reweighs the evidence nor reviews the credibility of the witnesses. We look only to the evidence most favorable to the verdict, along with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value from which the jury might reasonably have found the defendant guilty beyond a reasonable doubt, we will sustain the judgment. Kingery v. State, 659 N.E.2d 490
Dennis gave a total of four statements to the police. He gave one on the day of the shooting, a second three days following the shooting, a third at a taped deposition on May 6, 1994, and the fourth during his testimony at trial. In his first statement, Dennis claimed that he was at a phone and did not witness the shooting. In the other three statements, Dennis claimed to have seen defendant shoot Puckett. However, these three statements did contain some inconsistencies. The jury was aware of these inconsistencies, yet the jury chose to believe Dennis' testimony, and at trial Dennis clearly identified defendant as the person who shot Puckett. Defendant is now asking us to judge the credibility of this witness. We will not do so. We find that there is sufficient evidence to support the conviction.
Finally, defendant argues on several grounds that his sentence must be vacated. The trial judge sentenced him to concurrent sentences of sixty years for murder and one year for the weapons charge.
Defendant first argues that the trial court erred by not pronouncing sentence in defendant's presence as required by Indiana Code Section 35-38-1-4(a). This contention is erroneous. During the sentencing hearing, at which defendant was present, the trial judge did say "I am prepared at this point to impose sentence. The jury having found you guilty of murder the Court finds that there are aggravating circumstances to warrant an increase in the presumptive sentence to sixty (60) years." (R. at 758). Although this was not the clearest sentencing statement, it was sufficient to comply with the statutory requirement.
Next, defendant argues that the sentencing statement was insufficient and that the trial judge did not properly weigh the aggravators and mitigators. At sentencing, the trial court found the following aggravating circumstances: (1) a misdemeanor firearms violation, (2) a prior misdemeanor possession of cocaine conviction, (3) a prior misdemeanor disorderly conduct conviction, and (4) a tendency to resort to violence. The court found as mitigating that defendant lacked a lengthy criminal history. The trial court then stated: "So, the Court will impose [sic] find those to be aggravating circumstances which are out weighed by any mitigating circumstances." (R. at 758.)
Defendant argues that since the court stated that the aggravating circumstances are outweighed by the mitigating circumstances, defendant should receive no more than the presumptive sentence on the murder count. However, the court had earlier clearly stated that an increase in the presumptive sentence was warranted. In examining the sentencing statement in its entirety, we are convinced that the "out weighed by" language was merely a slip of the tongue, and that the trial judge meant to say that the aggravating circumstances outweighed the mitigating circumstances. Also, the sentencing statement was not insufficient and conclusive. The trial court properly identified all significant aggravating and mitigating factors, explained each of them, and weighed them to reach a sentencing decision. See Evans v. State, 563 N.E.2d 1251, 1254 (Ind.1990).
Lastly, defendant argues that the sentence he received, the maximum sentence for murder, is manifestly unreasonable. Defendant contends that because he is a 35-year-old man with only three prior misdemeanor convictions, and because the trial court's conclusion that defendant has a tendency to resort to violence is unsupported by the record, the sentence was unreasonable.
Sentencing decisions rest within the sound discretion of the trial court, and we will review sentencing only for abuse of discretion. Sims v. State, 585 N.E.2d 271 (Ind. 1992). A sentence which is authorized by statute will not be revised on appeal unless the sentence is manifestly unreasonable. Ind. Appellate Rule 17(B).
The conviction and sentence are affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.