DAVIS v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Corey Michael Davis appeals his convictions for two counts of Level 5 felony domestic battery with a deadly weapon and a domestic-violence determination, arguing that the trial court abused its discretion in admitting a witness's deposition testimony into evidence in lieu of her testifying at trial. We affirm.

Facts and Procedural History

[2] In 2024, Davis and his girlfriend, Tahasti Hopper, were living together in a house in Carmel. That April, Hopper's friend, Brittany Hill, moved in with them. The next month, in the early-morning hours of May 26, Davis was driving home from a nightclub with Hopper, and Hopper accused him of cheating on her. When Davis pulled up in front of their house, Hopper “told him [they] were done,” which made Davis “surprised and hurt.” Tr. p. 32. Hopper got out of the car and started walking across the yard to the house when she heard Davis rev his engine. She turned around and saw his car coming across the yard toward her. Davis hit Hopper with the car, and she “went up on the hood of the car” from the impact. Id. at 36. Davis hit the brakes, and Hopper rolled off the hood onto the ground.

[3] Hill, who was home sleeping at the time, woke up to headlights shining through her bedroom window. She saw that the headlights were coming from a car in the yard and that Hopper was “an arm's length” away from the car getting up from the ground. Ex. 16, 8:58. Hill saw the car hit Hopper a second time, and then Hopper got up, ran into the house through the side door, and called out for Hill. Hill heard Hopper calling her name, and when she went to the side door, she found Hopper on the phone with 911.

[4] The State charged Davis with two counts of Level 5 felony domestic battery with a deadly weapon (one for each time he hit Hopper with his car) and one count of Level 6 felony criminal recklessness.¹ In late July, the State deposed Hill because she was nearly twenty-four weeks into a high-risk pregnancy, and there was a chance she wouldn't be able to testify at trial given her condition. Davis and his counsel were present for the deposition. Hill testified that she'd consulted medical specialists about her pregnancy and that she had an appointment with her cardiologist and maternal-fetal medicine doctor the following week on August 5, the day before trial, to discuss whether it would be safe for her to testify the next day. Defense counsel cross-examined Hill about what she saw the night of the incident and her statement to police. When defense counsel asked Hill if she'd been employed that May, she explained that she worked as a chef for a school district but by May 26, the school year had ended, so she'd started another job in downtown Indianapolis.

[5] The morning of trial, the State moved to have Hill declared unavailable as a witness and to play her deposition for the jury because she'd provided a note from a registered nurse that said to “excuse [her] from Court ․ because of [her] high-risk pregnancy.” Tr. p. 9. The defense objected, arguing that Hill didn't meet the requirements to be declared unavailable. Defense counsel acknowledged that “as far as testimony's concerned,” there was “nothing” he “c[ould]n't get accomplished by using [Hill's] deposition as opposed to” her testifying at trial and that Davis was present for the deposition and saw Hill testify, so “it's not a confrontation issue.” Id. at 11. Rather, defense counsel contended that “the testimony in an empty room without the jury present ․ detracts from the jury's ability to perceive the witness, to make ․ their determination on the credibility of the witness.” Id. The court overruled the objection, and the State played Hill's deposition for the jury.

[6] The jury found Davis guilty as charged. The trial court did not enter judgment of conviction for Level 6 felony criminal recklessness due to double-jeopardy concerns. The court sentenced Davis to concurrent terms of six years for each count of Level 5 felony domestic battery with a deadly weapon, with three years suspended, and entered a domestic-violence determination.

[7] Davis now appeals.

Discussion and Decision

[8] Davis contends Hill's deposition testimony was inadmissible hearsay and thus the trial court abused its discretion in admitting it into evidence. Generally, trial courts have broad discretion in ruling on the admissibility of evidence, and we review only for an abuse of that discretion. Chambless v. State, 119 N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied.

[9] Hearsay is a statement, not made by the declarant while testifying at trial, “offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it falls under an exception. Evid. R. 802. One such exception, the former-testimony exception, allows a declarant's former testimony to be admitted when the declarant is unavailable as a witness. As relevant here, “[a] declarant is considered to be unavailable as a witness if the declarant ․ cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness[.]” Evid. R. 804(a)(4). Rule 804 defines “former testimony” as testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Id. at (b)(1). The decision to admit an unavailable witness's former testimony is within the sound discretion of the trial court, and we will not reverse “absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial.” Burns v. State, 91 N.E.3d 635, 639 (Ind. Ct. App. 2018). We “will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor.” Id.

I. The trial court did not abuse its discretion in declaring Hill unavailable as a witness

[10] Davis first challenges the trial court's finding that Hill was unavailable, claiming there was “inadequate evidence of infirmity.” Appellant's Br. p. 14. We disagree. Hill testified that she was nearly twenty-four weeks into a high-risk pregnancy, had consulted specialists about her pregnancy, and had an upcoming appointment with her cardiologist and maternal-fetal medicine doctor to determine whether it would be safe for her to testify at trial. Davis states that “Hill testified at deposition that she was working as a chef in downtown Indianapolis during this period of time,” id. at 11, but this does not accurately reflect Hill's testimony. Defense counsel asked Hill if she was employed in May 2024, and Hill explained that she'd been working as a chef for a school district, but the school year had ended by May 26, so she'd started another job in downtown Indianapolis. See Ex. 16, 18:48-19:55. Hill said nothing—nor did Davis's counsel ask—about whether she was working at the time of the July deposition or how recently she'd been to work.

[11] Davis also notes that Hill appeared for the deposition less than a week before trial and “was in apparent good health.” Appellant's Br. p. 10. Beside the fact that this observation is without medical foundation, regardless of how Hill appeared at the deposition, her cardiologist and maternal-fetal medicine doctor evaluated her at her appointment the following week and apparently determined she wasn't fit to testify at trial, as evidenced by the note signed by a registered nurse stating to “excuse [her] from Court ․ because of [her] high-risk pregnancy.” After considering the note and Hill's testimony about her condition, the trial court determined she was unavailable. Under these circumstances, we cannot say this determination was an abuse of discretion.

II. Davis had a similar motive to develop Hill's testimony during her deposition as he would have at trial

[12] Davis acknowledges that he had the opportunity to cross-examine Hill but argues that he did not have a similar motive to develop Hill's testimony during her deposition as he would have if she'd testified at trial.² He highlights discrepancies between Hill's deposition testimony and Hopper's trial testimony and claims that because he “could not have predicted what Ms. Hopper's testimony would be at trial, he could not adequately cross-exam[ine] Ms. Hill during the trial deposition and thus lay the foundation to impeach Ms. Hopper during trial.” Appellant's Br. pp. 16-17. We cannot agree. Going into Hill's deposition, Davis knew she might not be available for trial because of her high-risk pregnancy—that was the reason for the deposition. Though he did not yet know what Hopper's testimony would be at trial, Davis still had the opportunity to test Hill's story when his counsel cross-examined her about what happened and what she saw the night of the incident. By the time Hopper testified at trial, Davis knew Hill's version of events. If he wanted to impeach Hopper by questioning her about the inconsistencies between her testimony and Hill's, he could have done so on cross-examination of Hopper during the State's case or by calling Hopper as a witness. And defense counsel highlighted the inconsistencies in Hill's and Hopper's versions of events during closing argument, see Tr. pp. 166-67, so Davis was still able to challenge their credibility in front of the jury. Because Davis had an opportunity and similar motive to develop Hill's testimony during her deposition as he would have at trial, the trial court did not abuse its discretion in admitting Hill's deposition testimony.

[13] Affirmed.

FOOTNOTES

1.   The State also charged Davis with Class A misdemeanor failure to remain at the scene of an accident with bodily injury but dismissed this count before trial.

2.   In his opening brief, Davis frames this argument as a claim under the confrontation clauses of the United States and Indiana Constitutions. But as the State points out, Davis has waived this issue for review because in objecting to the admission of Hill's deposition testimony at trial, defense counsel admitted to the court, “[I]t's not a confrontation issue, Judge. I'll give you that.” Tr. p. 11. See Treadway v. State, 924 N.E.2d 621, 631 (Ind. 2010) (“A party may not add to or change his grounds for objections in the reviewing court.”).In any event, despite framing it as a confrontation-clause violation, Davis's argument is really a Rule 804 claim about his motive for developing Hill's testimony at the deposition—he “does not contend that he never had the chance to confront” Hill but argues that he was “[n]ot allow[ed] ․ the opportunity to pursue” the discrepancies in Hill's and Hopper's versions of events “with live testimony.” Appellant's Br. pp. 17, 19. And in his reply brief, Davis explicitly states that his motive in cross-examining Hill during her deposition was different than it would have been at trial. See Appellant's Reply Br. pp. 4, 6. Thus, we address this argument as one under Rule 804’s former-testimony exception, not the confrontation clauses.

Vaidik, Judge.

Bailey, J., and DeBoer, J., concur.