Malik Alonzo McKee, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In early March of 2024, over the course of several days, Malik McKee beat his then-pregnant girlfriend J.W. with enough force to cause her to suffer an orbital fracture, a facial laceration, and multiple missing teeth. After a jury found him guilty of Level 3 felony aggravated battery, Level 5 felony domestic battery resulting in serious bodily injury, Level 6 felony domestic battery resulting in moderate bodily injury, and Class A misdemeanor domestic battery, the trial court sentenced McKee to an aggregate sentence of twelve years of incarceration. McKee contends that the trial court abused its discretion in admitting (1) J.W.’s statements to a neighbor; (2) J.W.’s statements to police outside of her residence, as shown on police body-camera footage; and (3) J.W.’s statements at the hospital, as shown on police body-camera footage. We affirm.

Facts and Procedural History

[2] On March 4, 2024, Karen Matthews arrived home in the evening and saw her granddaughter, J.W., and McKee asleep on the couch. J.W. and McKee were dating and living at Matthews's condominium at the time. Sometime later that evening, Matthews heard a noise that sounded like “something hit the wall” adjoining her bedroom and the “front room.” Tr. Vol. III p. 106. J.W. came into Matthews's bedroom and said, “he hit -- he broke my stitches open.” Tr. Vol. III p. 107.

[3] On the morning of March 5, 2024, Cassandra Morin, a neighbor who lived nearby Matthews's condominium, heard J.W. knocking on the door and ringing the doorbell many times. The knocking was “frantic, like pounding.” Tr. Vol. III p. 2. When Morin opened the door, she observed that J.W. “had a black eye” that was “swollen shut, bruised, and she was crying, in tears.” Tr. Vol. III p. 2. J.W. “pulled up her lip and showed [Morin] that she had been missing three or four teeth[.]” Tr. Vol. III p. 2.

[4] J.W. was “very afraid. She was terrified.” Tr. Vol. III p. 4. J.W. reported to Morin that “for the last few days her boyfriend had been beating her.” Tr. Vol. III p. 6. J.W. also told Morin that “he had been on Xanax for a couple days and was beating her.” Tr. Vol. III p. 6. When Morin suggested contacting the police, J.W. told her that she was afraid to do so.

[5] Morin asked J.W. to exchange telephone numbers. On a piece of paper, J.W. wrote her name, telephone number, and “[i]f anything ever happens to [J.W.,] Malik McKee 05/10/93 killed her[.]” Ex. Vol. I p. 6. When J.W. left, Morin called her father, who took the note to the Merrillville police station. Within an hour, several officers were dispatched to the condominium complex to investigate.

[6] After speaking with Morin, police officers knocked on J.W.’s door and she exited the residence to speak with them. J.W. “seemed frightened. She was upset. She was crying, and she just kept telling [officers] to get her away from the house.” Tr. Vol. III p. 34. J.W. had teeth missing and “[h]er right eye was swollen shut, bruised.” Tr. Vol. III p. 34. She also had injuries to her thumb and face and bruising on her throat and neck.

[7] J.W. indicated to police that she had suffered some injuries while in Illinois with McKee. Her initial interaction with police was recorded on the responding officer's body camera. J.W. was transported to the hospital in an ambulance, and police were given permission by Matthews to enter the residence. Before they entered the residence, police were able to speak with McKee via Matthews's telephone, and eventually he agreed to exit the residence. McKee was taken into custody.

[8] When Matthews picked J.W. up from the hospital later that day, she noticed that J.W.’s black eye “was a lot worse” than it had been the day before, with some stitches in her eyebrow missing. Tr. Vol. III p. 124. Meanwhile, at the police station, McKee gave police a false name and never corrected himself. McKee claimed that J.W. had sustained “minor scratches on her face and a small bump” from her ex-boyfriend in Illinois. Tr. Vol. III p. 247. He also told police that he knew that she was pregnant.

[9] On March 7, 2024, the State charged McKee with Count I, Level 3 felony aggravated battery; Count II, Level 4 felony criminal confinement; Count III, Level 5 felony domestic battery resulting in serious bodily injury; Count IV, Level 5 felony domestic battery resulting in bodily injury to a pregnant woman; Count V, Level 5 felony strangulation; Count VI, Level 5 felony domestic battery resulting in serious bodily injury; Count VII, Level 6 felony domestic battery resulting in moderate bodily injury; Count VIII, Level 6 felony intimidation; and Count IX, Class A misdemeanor domestic battery.

[10] At the jury trial, commenced on June 17, 2024, J.W.’s note to Morin was admitted over McKee's objection to show why Morin “took certain actions and conduct afterwards.” Tr. Vol. III p. 9. J.W.’s statements to Morin regarding McKee's abuse were also admitted over McKee's objection under the excited-utterance exception to the hearsay rule.

[11] Clips from Merrillville Police Officer Jacob Olson's body-camera footage, recorded from outside of J.W.’s residence, were also admitted over McKee's objection, under the excited-utterance exception to the hearsay rule. During cross-examination, McKee's counsel asked Officer Olson about what J.W. had said to him, specifically referring to the body-camera footage, and Officer Olson explained that J.W. had told him that she had gone to Methodist Hospital on March 4, 2024, and received stitches for injuries she had indicated to Methodist were from “hitting her head” on a counter. Tr. Vol. III p. 62. Officer Olson also testified that, from the body-camera footage, J.W. reported that some of her injuries had been the result of McKee's “roughing her up” in Illinois. Tr. Vol. III p. 62. The admission of Merrillville Police Officer Jillian Evans's body-camera footage was also objected to by McKee, which objection was sustained at that time.

[12] J.W. testified at trial that she recalled going to Morin's house and writing McKee's “name on a paper or something.” Tr. Vol. III p. 193. J.W. testified that she did not recall anything she had said to officers, and that her own use of Xanax and the passage of time had affected her ability to recollect the events at issue.

[13] J.W.’s medical records from the hospital were admitted into evidence without objection. The medical records showed that on March 4, 2024, J.W. had been seen at Methodist Hospital for an orbital fracture and facial laceration and had a cracked tooth. J.W. had reported to medical staff that she had fallen and “hit her face on the corner of a countertop.” Ex. Vol. II p. 94. On March 5, 2024, J.W. returned to the hospital, this time reporting to medical staff that “she was here yesterday for her injuries and her eye had to be sutured but she lied about how her injuries occurred.” Ex. Vol. II p. 76. The medical records also contained the following:

when she left [the] hospital last night[,] she went home and was then abused again by her boyfriend. Boyfriend punched her in the face where her sutures were and made her eye bleed again. Patient states she is 3 weeks pregnant and partner also punched her in the stomach and broke some of her teeth. States that he hit her in the leg with a tile and is hurting. Patient states she has eye and mouth pain.

Ex. Vol. II p. 76. J.W. testified at trial that she could not remember what she had told police officers in the ambulance or hospital on March 5, 2024. (Tr. Vol. II p. 197) When asked whether, if she had spoken to police officers, she would have “tried to answer their questions to the best of [her] ability,” J.W. answered affirmatively. Tr. Vol. II pp. 196–97. At that point, the State moved to play Officer Evans's body-camera footage in the hospital as a past recollection recorded under Rule of Evidence 803(5). McKee objected, arguing that “[i]n order to refresh her recollection, the witness merely needs to hear it to refresh her recollection. It does not have to be shown.” Tr. Vol. III p. 197. The trial court overruled the objection because the footage was “not being offered to refresh but rather as past recollection recorded, and so on that basis, it may be played over objection.” Tr. Vol. III p. 197. The objection was renewed for the record, and McKee noted, “we would object, Your Honor, as being more prejudicial than probative at this time.” Tr. Vol. III p. 197.

[14] After reviewing the footage, J.W. admitted that in the body-camera footage she had told the officer that McKee had hit her fifteen times, but she testified that she did not remember saying that. She testified instead that “[h]e hit me one time.” Tr. Vol. III p. 209. The jury also heard jail calls made by McKee to J.W. in which J.W. had told McKee, “Baby, you f**ked me up bad.” Ex. 39 at 1:30–2:30. McKee, in the same call, had “[sworn] to God” that he would not do it again. Ex. 39 at 8:30–9:15. The jury ultimately found McKee guilty of Counts I, VI, VII, and IX, and the trial court sentenced McKee to an aggregate sentence of twelve years of incarceration.

Discussion and Decision

[15] McKee contends that the trial court abused its discretion in admitting J.W.’s statements (1) to Morin, (2) to police outside of her residence, as shown on Officer Olson's police body-camera footage, and (3) at the hospital, as shown on Officer Evans's police body-camera footage.

I. Standard of Review:

[16] Generally, a trial court's ruling on the admission of evidence is accorded a great deal of deference on appeal. Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion and only reverse if a ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.

Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (internal citations and quotations omitted). Hearsay is “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Generally, hearsay statements are not admissible during trial. Evid. R. 802. However, the Indiana Rules of Evidence provide a number of exceptions to this general rule. See Evid. R. 803, 804.

II. Excited Utterances

[17] McKee contends that the statements J.W. made to Morin and to police were inadmissible hearsay statements. An exception to the rule against hearsay exists for an “excited utterance.” Evid. R. 803(2). An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Evid. R. 803(2). To qualify as an excited utterance, there are three elements that must be present: “(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.” Ramsey v. State, 122 N.E.3d 1023, 1032 (Ind. Ct. App. 2019) (citation and quotations omitted), trans. denied.

[18] 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.” Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011). The lapse of time is not dispositive, but if a statement is made long after a startling event, it is usually “less likely to be an excited utterance.” Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012). See Chambless v. State, 119 N.E.3d 182, 189 (Ind. Ct. App. 2019) (“The longer the time between an event and an utterance, the greater the likelihood that the statement is a narrative of past events instead of an excited utterance.”).

Id. “The heart of the [excited utterance] inquiry is whether the declarant was incapable of thoughtful reflection. The rationale behind admitting excited utterances is that startling events and absence of opportunity for reflection vest the statements with reliability and reduce the likelihood of falsification.” Id. (brackets in Ramsey, internal citations and quotations omitted).

[19] At trial, Morin testified that she had heard J.W. knocking on Morin's door frantically, and when she opened the door, she observed that J.W. had “had a black eye” that was “swollen shut, bruised, and she was crying, in tears.” Tr. Vol. III p. 2. J.W. “pulled up her lip and showed [Morin] that she had been missing three or four teeth[.]” Tr. Vol. III p. 2. Morin testified that J.W. appeared “very afraid” and “terrified” and that J.W. told her that “for the last few days her boyfriend had been beating her.” Tr. Vol. III p. 6. J.W. also told Morin that “he had been on Xanax for a couple days and was beating her.” Tr. Vol. III p. 6. At this time, J.W. also wrote the note to Morin that “[i]f anything ever happens to [J.W.,] Malik McKee 05/10/93 killed her[.]”¹ Ex. Vol. I p. 6. McKee objected to J.W.’s statements to Morin as hearsay statements. The State argued that J.W. had just come from her residence, appeared afraid, and was “still under the stress of the incident where this allegedly happened.” Tr. Vol. III p. 6. The trial court overruled the objection and allowed the statements to be offered under the excited utterance exception to the rule against hearsay. Tr. Vol. III p. 6.

[20] The trial court is in the best position to weigh the evidence and to decide on admissibility. See Hall, 36 N.E.3d at 466. Here, the trial court determined that J.W. had been under the stress of the beatings she had recently endured when she made the statements to Morin. The record shows that when J.W. made the statements to Morin, J.W. was crying, afraid, and suffering from multiple injuries which she had sustained over the course of multiple days. This evidence supports the conclusion that J.W. had not yet had the opportunity for reflection when she made the statements to Morin that McKee had been beating her. See Ramsey, 122 N.E.3d at 1032. Therefore, the trial court did not abuse its discretion in admitting J.W.’s statements to Morin as excited utterances.

[21] McKee next contends that J.W.’s statements made to the police, outside of her residence, as recorded on Officer Olson's body camera, were also improperly-admitted hearsay statements. At trial, these statements were admitted over McKee's objection, again, as excited utterances. Before the footage was admitted, Officer Olson testified that J.W. “seemed frightened. She was upset. She was crying, and she just kept telling us to get her away from the house.” Tr. Vol. III p. 34. J.W.’s right eye was “swollen shut, bruised. She had stitches above her eye[,]” and she had teeth missing. Tr. Vol. III p. 34. Officer Olson described J.W. as “frantic.” Tr. Vol. III p. 35.

[22] Upon McKee's objection, the State argued that J.W. “wanted to get away from the house[,] showing that she was still under the effect of whatever had been occurring to her. She – the fact that she presented that way to the officer, the fact that she wanted to get away from where she was initially shows that there is the indicia of reliability that an excited utterance exception applies.” Tr. Vol. III pp. 35–36. The trial court agreed with the State and admitted Officer Olson's body-camera footage.

[23] Again, the trial court is in the best position to weigh the evidence and to decide on admissibility. See Hall, 36 N.E.3d at 466. The trial court determined that J.W. had still been under the stress of the beatings she had endured when police arrived to speak with her. The police arrived at J.W.’s residence approximately an hour and a half after J.W. had frantically knocked on Morin's door. The record reflects that J.W. was, at that point, still frightened, and upset, that she had been crying, and that she had asked officers to get her “away from the house.” Tr. Vol. III p. 34. This, again, supports the trial court's conclusion that J.W. had not yet had the opportunity for reflection when she had made the statements to the police outside of her residence. See Ramsey, 122 N.E.3d at 1032. The trial court did not abuse its discretion in admitting the statements as excited utterances.

[24] Furthermore, even if J.W.’s statements to Morin or to the police outside of her residence had been admitted in error, any error would be harmless. It is well-settled that even “[t]he improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact.” Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied.

[25] J.W.’s statements to Morin that McKee had beaten her and had been using Xanax, and her statements to police regarding her injuries and McKee's abuse, were cumulative of other evidence admitted at trial. At trial, J.W. testified that she and McKee had both been using Xanax. J.W.’s medical records, admitted into evidence without objection, showed that on March 4, 2024, J.W. had been seen at Methodist Hospital for an orbital fracture and facial laceration and had a cracked tooth. J.W. had reported to medical staff that she had fallen and “hit her face on the corner of a countertop.” Ex. Vol. II p. 94. On March 5, 2024, J.W.’s medical records revealed that J.W. had returned to the hospital, this time reporting to medical staff that “she was here yesterday for her injuries and her eye had to be sutured but she lied about how her injuries occurred.” Ex. Vol. II p. 76. Her medical records further reflected that

when she left [the] hospital last night[,] she went home and was then abused again by her boyfriend. Boyfriend punched her in the face where her sutures were and made her eye bleed again. Patient states she is 3 weeks pregnant and partner also punched her in the stomach and broke some of her teeth. States that he hit her in the leg with a tile and is hurting. Patient states she has eye and mouth pain.

Ex. Vol. II p. 76. Matthews also testified to hearing a noise coming from the room where J.W. and McKee had been in that sounded like “something hit the wall.” Tr. Vol. III p. 106. J.W. had then come into Matthews's bedroom and had told Matthews “he hit -- he broke my stitches open.” Tr. Vol. III p. 107. Considering the cumulative other evidence presented to the jury, any error in the admission of J.W.’s statements to Morin or to the police appearing on Officer Olson's body-camera footage was harmless.

III. Recorded Recollection

[26] McKee next contends that the trial court abused its discretion in admitting the statements that J.W. had made at the hospital, as recorded on Officer Evans's body-camera footage, as a recorded recollection. See Evid. R. 803(5). However, we need not address the admissibility of Officer Evans's body-camera footage because, even if there had been error, such error would, again, be harmless. See Hunter, 72 N.E.3d at 932 (providing that “[t]he improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact”). In the body-camera footage, J.W. told police that McKee had taken a significant amount of Xanax over the past five days, and that after they had returned home, McKee had punched her in the eye, choked her, threatened to kill her, knocked out some of her teeth, hit her in the leg with a tile, that she had went to the neighbor's house for a phone charger and that she had given her neighbor a note which blamed McKee if J.W. ended up dead. She also stated that she was in pain.

[27] J.W.’s statements in the body-camera footage were cumulative of other evidence admitted at trial, including testimony by Matthews, police officers, Morin, and J.W.’s medical records containing information about her injuries and her reports to the medical staff which indicated that she had been abused by her boyfriend, who had punched her in the face and stomach, broken her teeth, and hit her with a tile. Ex. Vol. II p. 76. Also located in J.W.’s medical records were “Abuse Indications” from March 5, 2024, which reported that, in addition to J.W. indicating that she was afraid that her life may be in danger, in response to the question “[h]as your partner ever threatened to kill you, him/herself or your children?”, J.W. indicated yes. Ex. Vol. II p. 13. Furthermore, the jury heard McKee's phone call with J.W., in which J.W. stated, “Baby, you f***ed me up bad” and McKee later stated “I'm not going to do it again, I swear to God.” Ex. 39 at 1:30–2:30, 8:30–9:15.

[28] Given the other cumulative evidence of McKee's guilt presented to the jury, any error in the admission of Officer Evans's body-camera footage could only be considered harmless.²

FOOTNOTES

1.   McKee does not challenge the admission of the note, and the record reflects that the note was not offered for the truth of the matter asserted.

2.   To the extent that McKee argues that Hurt v. State, 151 N.E.3d 809 (Ind. Ct. App. 2020), indicates that any error was not harmless, we disagree. In Hurt, we reversed where the remaining, admissible evidence to prove that Hurt injured his wife included only photographs and testimony from police documenting the victim's injuries; there was no evidence remaining to prove that Hurt actually engaged in fighting or that he struck his wife and caused the injuries to her face. 151 N.E.3d at 815. Here, even if there had been any error in admitting Officer Evans's body-camera footage, there was ample evidence including testimony by Matthews, police, and Morin, J.W.’s medical records, and McKee's jail calls to J.W., to prove that McKee had caused J.W.’s injuries.

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur.