Michael Smith, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Michael Smith was convicted of Level 1 felony attempted murder after shooting his younger brother Alphonzo Smith in the chest. Smith appeals, raising two issues for our review, which we restate as: (1) whether the trial court abused its discretion by admitting certain hearsay statements under the excited utterance exception to the hearsay rule; and (2) whether the admission of the challenged hearsay evidence violated Smith's right to confrontation under the Sixth Amendment to the United States Constitution. Finding the trial court did not abuse its discretion by admitting the evidence and Smith's constitutional right to confrontation was not violated, we affirm.

Facts and Procedural History

[2] In 2021, when the events leading to this appeal took place, Smith was sixty-six years old and Alphonzo was sixty-five. The brothers were not “on good terms” and communicated solely by exchanging text messages. Tr. Vol. III p. 126. Some of Smith's messages to Alphonzo were “[v]ery hostile.” Id.

[3] Smith and Alphonzo took turns caring for their mother, Jean. Jean lived in a house in Gary and suffered from various health challenges, including dementia. From around February 2021 to the end of July, Smith and another brother cared for Jean until doing so became a challenge. On July 31, Alphonzo assumed Jean's care and moved her from her house to an assisted living facility.

[4] On August 4, Alphonzo and his friend, Larry Harris, went to Jean's house to meet a repairman. After the repairman arrived around 4:00 p.m., Alphonzo escorted him through the kitchen to the basement. Harris remained upstairs near the kitchen.

[5] Meanwhile, a neighbor had contacted Smith and informed him that Alphonzo was at their mother's house. Smith drove to the house, entered through the unlocked front door and walked toward the kitchen with a gun drawn. At the same time, Alphonzo and the repairman were climbing the basement stairs. Alphonzo reached the top of the stairs, walked into the kitchen and—upon seeing Smith—told him to “get out.” Id. at 177. Smith leveled his gun on Alphonzo, asked where their mother was and fired three or four shots, striking Alphonzo once in the chest. Alphonzo fell down the stairs, causing the repairman to also fall, and they both landed at the bottom of the stairs. Smith pushed past Harris and left the house.

[6] Harris ran out of the house and hid behind a tree. He called 9-1-1 and told the operator that Alphonzo had been shot by his brother. Harris seemed confused, frightened, exasperated and in shock. He told the operator he believed Alphonzo was dead and that Smith was still inside the home. The repairman, who hid in the basement after the shooting, also called 9-1-1. At the same time, Alphonzo called 9-1-1 and reported his brother had shot him in the chest. All three calls came in around 4:19 p.m.

[7] After about three minutes, Alphonzo ended the call and, although wounded, was able to exit the house. When he emerged, “the police w[ere] flying down the street, and the ambulance was behind them.” Id. at 110. The emergency vehicles “got there pretty quick.” Id. Sergeant Silas Simpson, Jr. of the Gary Police Department took statements from the three men, all of whom appeared “very afraid, very excited.” Tr. Vol. IV p. 34. Before Sergeant Simpson asked Harris any specific questions, Harris told the sergeant about the shooting incident—namely that he was in the kitchen when Smith entered holding a firearm, asked where Alphonzo was, moved toward the basement stairs, and thereafter Harris heard several gunshots. Alphonzo was taken by ambulance to a Gary hospital and then helicoptered to a Chicago hospital, where he stayed for more than three weeks.

[8] In August 2021, the State charged Smith with Level 1 felony attempted murder, Level 3 felony aggravated battery, Level 5 felony domestic battery resulting in serious bodily injury, and Level 5 felony battery by means of a deadly weapon. A three-day jury trial commenced on July 22, 2024.

[9] At trial, the State subpoenaed Harris and he appeared. However, he was released from his subpoena without testifying after both parties indicated he would not be called.¹ The State called the lead investigator, Sergeant Mark Salazar of the Gary Police Department, and introduced recordings of 9-1-1 calls made by Alphonzo, Harris, and the repairman. Smith objected on grounds that (1) the State failed to lay a proper foundation to introduce the calls through the detective; (2) Harris did not identify himself in his call; and (3) admitting Harris’ call into evidence would violate Smith's Sixth Amendment right to confront and cross-examine Harris. The court admitted Alphonzo's and the repairman's calls over Smith's objection and initially sustained the objection as to Harris’ call. After Sergeant Salazar testified that he recognized Harris’ voice on the 9-1-1 call, the court admitted Harris’ call over Smith's objection, determining the statements in the 9-1-1 call were excited utterances.

[10] Later, Sergeant Simpson testified about the statements Harris made to him after he arrived on scene, to which Smith objected on hearsay grounds. The sergeant testified that before he asked Harris any specific questions, Harris told him what happened, and the sergeant thereafter asked questions to clarify the information. The court overruled the objection and allowed the testimony under the excited utterance exception to the hearsay rule.

[11] The jury found Smith guilty as charged. At sentencing, the trial court vacated the three battery convictions on double jeopardy concerns and sentenced Smith to thirty-two years for the Level 1 felony attempted murder conviction, with twelve years suspended to probation. Smith now appeals.

Discussion and Decision

[12] Smith argues the trial court abused its discretion by admitting Harris’ 9-1-1 call and his on-scene statements to Sergeant Simpson. Smith also argues the admission of this evidence violates his Sixth Amendment confrontation rights. The analyses of exceptions to the hearsay rule and confrontation clause violations are separate inquiries. See Holmes v. State, 671 N.E.2d 841, 859 (Ind. 1996) (noting that confrontation rights guaranteed by our federal constitution and exceptions to hearsay rule are analyzed separately), abrogated on other grounds by Wilkes v. State, 917 N.E.2d 675 (Ind. 2009). We address these issues in turn.

I. The trial court did not abuse its discretion by admitting into evidence Harris’ hearsay statements under the excited utterance exception to the hearsay rule.

[13] Smith claims Harris’ 9-1-1 call and his statements to Sergeant Simpson were inadmissible hearsay. “Our standard of reviewing claims of alleged evidentiary error is well settled: the decision to admit or exclude evidence is committed to the sound discretion of the trial court and will be reviewed only for an abuse of that discretion.” McMillen v. State, 169 N.E.3d 437, 440-41 (Ind. Ct. App. 2021). “An abuse occurs only where the trial court's decision is clearly against the logic and effect of the facts and circumstances.” Chambless v. State, 119 N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied. A trial court's evidentiary ruling is presumptively correct, and “a challenger bears the burden on appeal of persuading us that the trial court erred in its exercise of discretion.” Schnitzmeyer v. State, 168 N.E.3d 1041, 1044 (Ind. Ct. App. 2021).

[14] Here, the trial court found the challenged evidence was admissible under the excited utterance exception to the hearsay rule. 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). Hearsay is inadmissible unless it falls under a hearsay exception in the Indiana Rules of Evidence or other law. Ind. Evidence Rule 802.

[15] An excited utterance, a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused[,]” is not excluded by the rules against hearsay. Ind. Evidence Rule 803(2). “For a hearsay statement to be admitted as an excited utterance, three elements must be shown: (1) a startling event, (2) a statement made by a declarant while under the stress of excitement caused by the event, and (3) that the statement relates to the event.” Davenport v. State, 749 N.E.2d 1144, 1148 (Ind. 2001).

This is not a mechanical test, and the admissibility of an allegedly excited utterance turns on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications. The heart of the inquiry is whether the declarant was incapable of thoughtful reflection. While the amount of time that has passed is not dispositive, a statement that is made long after the startling event is usually less likely to be an excited utterance.

Hurt v. State, 151 N.E.3d 809, 813-14 (Ind. Ct. App. 2020) (internal quotation marks and citations omitted). Factors to consider in determining admissibility include the “lapse of time” between a statement and the startling event and whether a statement was “given in response to a question or not,” though neither factor is dispositive.” Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000); Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996). “Determining whether a statement constitutes an excited utterance is essentially a factual determination subject to a clearly erroneous standard of review, sometimes described as [ ] functionally equivalent [to] abuse of discretion.” Davenport, 749 N.E.2d at 1148.

A. Harris’ 9-1-1 Call

[16] Initially, Smith challenges the admission of Harris’ statements made during the 9-1-1 call. Smith acknowledges that Harris “may have experienced” a startling event but contends the statements were not excited utterances because Harris “was not acting under the stress and excitement of the event” to the extent he was “incapable of thoughtful reflection.” Appellant's Br. pp. 12-13. We disagree.

[17] Harris was still under the stress or excitement of the shooting when he called 9-1-1. Harris was in the kitchen area of the house and close to Smith when Smith pulled the trigger. When the shots were fired, Harris ran from the house, hid behind a tree, and immediately called 9-1-1. He conveyed shock and exasperation when he reported the shooting to the operator. He told the operator Alphonzo was dead and that Smith was still inside the home, indicating he believed (albeit incorrectly) that the danger of the situation remained. His responses to the operator's questions revealed his fear, as he repeatedly told the operator that he was not going back into the house.

[18] The timing of the call, Harris’ demeanor, and the information he relayed support the conclusion that Harris experienced a startling event—Smith shooting Alphonzo—and was still under the stress of excitement when he made the call such that he was incapable of thoughtful reflection. The trial court did not err in determining these statements were excited utterances and therefore not excluded by the hearsay rules.

B. Harris’ Statements to Sergeant Simpson

[19] Smith next challenges the admission of Harris’ statements to Sergeant Simpson about the shooting. Smith turns our attention to Sergeant Simpson's testimony that he was not certain when he arrived at the crime scene but thought it was about twenty minutes after receiving the dispatch. The State argues Harris was still under the stress of the shooting when he spoke with Sergeant Simpson, thus the statements were admissible as excited utterances.

[20] To support his argument, Smith relies on Hurt, where a panel of this Court concluded statements made by a witness in her interview with police—which occurred at least fifteen minutes after the 9-1-1 call—were not admissible as an excited utterance because she was no longer under the stress of the startling event when she gave her statement to the officer. 151 N.E.3d at 814-15. Throughout the questioning, the witness “was deliberating—albeit drunkenly—about how to respond to repeated questioning over the course of several minutes.” Id. at 814 (quotation omitted). Hurt, however, is distinguishable from the case before us.

[21] While the evidence does not indicate the exact time Sergeant Simpson arrived at the scene, the record reveals Alphonzo, Harris, and the repairman placed their respective 9-1-1 calls around 4:19 p.m. Alphonzo's call lasted around three minutes, and he testified the emergency vehicles arrived “pretty quick.” Tr. Vol. III p. 110. When Sergeant Simpson arrived, he observed that all three men appeared “very afraid, very excited.” Tr. Vol. IV p. 34. And before Sergeant Simpson asked Harris any specific questions, Harris told the sergeant the details surrounding the shooting.

[22] These circumstances demonstrate Harris remained under the stress of excitement of the shooting when he made statements to Sergeant Simpson. Our Supreme Court has ruled that statements can be admitted as excited utterances up to over an hour after an incident. Yamobi, 672 N.E.2d at 1347. Here, far less time had passed between Harris’ 9-1-1 call and his statements to the sergeant. Harris’ statements to Sergeant Simpson fall into the excited utterance exception to the rule against hearsay. The trial court did not err in determining these statements were excited utterances and therefore not excluded by the hearsay rules

II. Smith's right to confrontation under the Sixth Amendment to the United States Constitution was not violated.

[23] Having determined the challenged evidence was not inadmissible hearsay, we turn to Smith's argument that the statements made during the 9-1-1 call and to Sergeant Simpson should have been excluded under the Sixth Amendment Confrontation Clause. Smith maintains that the admission of Harris’ statements violated his Sixth Amendment confrontation rights because Harris was unavailable to testify.

[24] In general, a trial court has broad discretion in ruling on the admissibility of evidence, and we disturb a trial court's evidentiary rulings only upon an abuse of discretion. Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013), cert. denied (2014). However, when a defendant contends that a constitutional violation has resulted from the admission of evidence, the standard of review is de novo. Id.

[25] The Confrontation Clause provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him[.]” U.S. Const. amend. VI; see Crawford v. Washington, 541 U.S. 36, 42 (2004) (“We have held that this bedrock procedural guarantee applies to both federal and state prosecutions.”). A hearsay statement made by a witness who does not testify at trial violates the Sixth Amendment if it is testimonial, the witness is unavailable, and the defendant lacked a prior opportunity for cross-examination. Howard v. State, 853 N.E.2d 461, 465 (Ind. 2006) (citing Crawford, 541 U.S. at 68).

[26] “[T]estimonial statements are those that are substitutes for live testimony, that is ‘they do precisely what a witness does on direct [examination.]’ ” Lehman v. State, 926 N.E.2d 35, 40 (Ind. Ct. App. 2010) (quoting Davis v. Washington, 547 U.S. 813, 830 (2006)), trans. denied. To determine whether the statements are testimonial, we look at the primary purpose of the interrogation. Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011) (citing Michigan v. Bryant, 562 U.S. 344, 358-59 (2011). If “circumstances objectively indicate” the primary purpose is to “prove past events potentially relevant to later criminal prosecution” then statements are testimonial. Bryant, 562 U.S. at 356.

[27] If, however, the circumstances objectively indicate that “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” then the statements are non-testimonial. Young v. State, 980 N.E.2d 412, 418 (Ind. Ct. App. 2012) (quoting Davis, 547 U.S. at 822). Determining whether an emergency exists and is ongoing is a “highly context-dependent inquiry.” Bryant, 562 U.S. at 363. We consider whether the interrogation is targeted at responding to a call for help where a threat to people is ongoing as compared to an interrogation targeted at establishing past events. See Davis, 547 U.S. at 827. In making that determination, we look at four factors:

(1) whether the declarant was describing events “as they were actually happening” or past events; (2) whether the declarant was facing an ongoing emergency; (3) whether the nature of what was asked and answered was such that the elicited statements were necessary to be able to resolve the present emergency rather than simply to learn about past events; and (4) the level of formality of the interview.

State v. Martin, 885 N.E.2d 18, 20 (Ind. Ct. App. 2008) (quoting Davis, 547 U.S. at 827).

A. Harris’ 9-1-1 Call

[28] Harris’ statements on the 9-1-1 call were made during an ongoing emergency and were nontestimonial in nature. After seeing Smith with a gun in his hand and then hearing multiple gunshots, Harris ran from the house, hid behind a tree, and immediately called 9-1-1 to report that Alphonzo had been shot by his brother. During the call, Harris exhibited signs of stress and frustration, and he seemed confused, frightened, exasperated, and in shock.

[29] When the call was made, Harris believed Alphonzo was dead. Smith's whereabouts were unknown, but Harris thought Smith was still in the home. Thus, Smith posed an ongoing threat to the situation, and the questions the operator posed to Harris were necessary to (1) help resolve the emergency and (2) gather pertinent information to aid responding officers in accurately assessing the nature and scope of the emergency. The operator also sought to ensure Harris’ safety by directing him not to return to the home.

[30] Harris’ statements to the 9-1-1 operator were not made to document past events or preserve evidence for a criminal case. They were made with the primary purpose of reporting the shooting and obtaining emergency assistance in resolving a possible ongoing threat of gun violence. Thus, the 9-1-1 call was nontestimonial, and the admission of evidence regarding the call did not violate the Confrontation Clause of the Sixth Amendment. See, e.g., Davis, 547 U.S. at 822, 827-828 (holding victim's statements to 9-1-1 operator, while perpetrator was in home, were nontestimonial because their primary purpose was to enable police assistance to meet an ongoing emergency); see also Collins v. State, 873 N.E.2d 149, 155 (Ind. Ct. App. 2007) (concluding statements to 9-1-1 dispatcher had primary purpose of assisting police to meet ongoing emergency thus were not testimonial; therefore admission did not violate Sixth Amendment rights), trans. denied.

B. Harris’ Statements to Sergeant Simpson

[31] Likewise, Harris’ statements to Sergeant Simpson were nontestimonial and were made “to enable police assistance to meet an ongoing emergency.” See Ward v. State, 50 N.E.3d 752, 758 (quoting Bryant, 562 U.S. at 359). Sergeant Simpson arrived shortly after the shooting occurred, and he observed that Harris appeared “very afraid, very excited.” Tr. Vol. IV p. 34. The sergeant encountered Harris at the crime scene, not at a police station. And Harris’ statements were not made in response to formal questioning. Rather, Sergeant Simpson testified that before he asked Harris any specific questions, Harris told him what had happened, specifically, where Harris was when the shooting occurred and what he saw and heard. Then, the sergeant asked questions to clarify the information Harris had provided. This Court has previously held that witness statements made after a shooting to identify a suspect were not testimonial. Wallace v. State, 836 N.E.2d 985, 996 (Ind. Ct. App. 2005). And because Harris’ statements were excited utterances, they “are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood.” Bryant, 562 U.S. at 361.

[32] The primary purpose of Harris’ statements to the sergeant was to give information to address the ongoing emergency. See Davis, 547 U.S. at 828. As such, the statements were nontestimonial, and their admission into evidence did not violate Smith's Sixth Amendment confrontation rights. No error occurred here.

Conclusion

[33] The trial court did not abuse its discretion by admitting into evidence the statements Harris made during the 9-1-1 call and, shortly thereafter, to Sergeant Simpson under the excited utterance exception to the hearsay rule. And the statements were nontestimonial and, thus, did not violate Smith's rights under the Sixth Amendment Confrontation Clause. The judgment of the trial court is affirmed.

Affirmed.

FOOTNOTES

1.   Smith twice attempted to depose Harris prior to trial. Harris “[pled] the Fifth” and refused to answer questions at the first and did not appear for the second. Tr. Vol. II p. 18. Harris filed a motion to exclude and a hearing was held, at which the court instructed Harris he must testify as a witness if called and denied the motion to exclude. Harris appeared at trial but was released without testifying. The State indicated it released him because “it became clear ․ he was just going to muck around in this trial” and having him testify was “pointless.” Tr. Vol. IV pp. 25, 26.

Scheele, Judge.

Judges May and Weissmann concur in result without opinion. May, J., and Weissmann, J., concur in result without opinion.