Preview:

FOR PUBLICATION

FILED
Jun 30 2010, 10:52 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: SUZY ST. JOHN Marion County Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
STACEY FOWLER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0910-CR-1037

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Israel N. Cruz, Commissioner Cause No. 49F16-0906-CM-053643

June 30, 2010 MEMORANDUM DECISION - FOR PUBLICATION VAIDIK, Judge

Case Summary Stacey Fowler appeals her conviction for Class B misdemeanor battery. We hold that (1) the victims booking card from a prior, unrelated arrest was admissible under the public records exception to the hearsay rule, (2) introduction of the booking information did not violate Staceys Sixth Amendment confrontation rights, (3) even if the exhibit was unnecessarily cumulative, Stacey fails to establish that she was prejudiced as a result of its admission, and (4) any alleged error in the exclusion of the arresting officers outof-court statements was waived for failure to make an offer of proof. We affirm the judgment of the trial court. Facts and Procedural History Stacey and her husband Ricky Fowler got into an argument outside their home. Ricky called the police. Officers Nicole Bockting and David Shimp responded. Ricky identified himself verbally to the police officers. Ricky told the officers that Stacey had taken his wallet. At some point Stacey walked up to Ricky and pushed him with both hands. Ricky was knocked off-balance. The officers placed Stacey under arrest. Officer Shimp retrieved Rickys wallet from Staceys truck. He removed an I.D. from the wallet to make sure it belonged to Ricky. The I.D. displayed Rickys name and picture. The State charged Stacey with Class B misdemeanor battery, Indiana Code section 35-42-2-1. The information alleged that Stacey "did knowingly touch RICKY

FOWLER, another person in a rude, insolent or angry manner." Appellants App. p. 12. Officers Bockting and Shimp both testified at Staceys bench trial, but Ricky did not appear. To help establish the identity of the victim, the State introduced a certified 2

Indianapolis Metropolitan Police Department "Booking Information" printout containing a mugshot of Ricky along with his name, date of birth, and physical description. Ricky evidently had been arrested in 2005 for an unrelated theft, so the police had his picture and personal information on file. The booking card stated on the bottom that it was "FOR LAW ENFORCEMENT USE ONLY." States Ex. 1. The State asked Officer Shimp if he recognized the person in the 2005 booking photo. Officer Shimp responded, "Thats the male half of the disturbance, Ricky Fowler." Tr. p. 16. The defense objected to the States exhibit. The defense argued that the document was inadmissible hearsay and that its introduction violated Staceys constitutional confrontation rights. The trial court admitted the exhibit over objection. The trial court also noted, "States Exhibit #1 is cumulative really. . . . The officers have testified credib[ly] that they in fact identified Mr. Fowler by his own [I.D.] They knew who he was. They knew exactly who she allegedly battered. And so, States Exhibit #1 is cumulative at best." Id. at 24. Stacey took the stand and testified in her own defense. Stacey told her version of the events in question, and she attempted to relay various statements that were made to her by Officers Shimp and Bockting at the scene of the altercation. The State objected on hearsay grounds, and trial court sustained the objections. The defense did not make an offer of proof with respect to the excluded testimony. The trial court found Stacey guilty as charged. Stacey now appeals. Discussion and Decision Stacey raises four issues: (1) whether Rickys booking card constituted inadmissible hearsay, (2) whether its admission violated her Sixth Amendment right to 3

confrontation, (3) whether the exhibit was unnecessarily cumulative, and (4) whether the trial court erred by excluding various out-of-court statements of the arresting officers. I. Booking Information Printout A. Hearsay Claim Stacey argues that Rickys booking information printout constituted inadmissible hearsay. ",,Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay is not admissible except as provided by law or by other court rules. Ind. Evidence Rule 802. One exception to the hearsay rule is for "public records and reports." See Ind. Evidence Rule 803(8). The public records exception provides: [u]nless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case. Id. "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

4

submit accurate and fair reports."

13 Robert Lowell Miller, Jr., Indiana Practice:

Indiana Evidence

Download Stacey Fowler v. State of Indiana.pdf

Indiana Law