Indiana Law Review


Recent Developments in Indiana Evidence Law

Jeff Papa*

Although the Indiana Rules of Evidence (Rules) went into effect more than
nine years ago, many aspects ofthose rules remain open to interpretation. Debate
over the proper rule of evidence in a particular situation stems not only from

interpreting the text ofthe Rules, but also from determining the proper influence

of statutory and common law.
This Article explains many of the developments in Indiana evidence law

during the period between October 1, 2001, and September 30, 2002. The

discussion topics are grouped in the same subject order as the Rules.

I. Scope of the Rules

A. In General

According to Rule 101(a), the Rules apply to all Indiana court proceedings

except where "otherwise required by the Constitution of the United States or

Indiana, by the provisions of this rule, or by other rules promulgated by the

Indiana Supreme Court."
1

In situations where the rules do not "cover a specific

evidence issue, common or statutory law shall apply."2 This leaves the
applicability of the Rules open to debate.

The wording of Rule 101(a), requiring the application of statutory or

common law in areas not covered by the Rules, has been interpreted by the
Indiana Supreme Court to mean that the Rules trump any conflicting statute.

3

B. All Forms ofConveying Information Fall Under Rule 106

In Desjardins v. State? Desjardins appealed a decision in which the Indiana

Court of Appeals upheld the trial court's exclusion of portions of a videotape.

The trial court had allowed portions of the tape to be shown, but refused to

permit Desjardins to show the entire tape to the jury. Desjardins argued this was
error under the doctrine of completeness. The court of appeals looked at Rule

1 06, which provides that "[w]hen a writing or recorded statement or part thereof

is introduced by a party, an adverse party may require at that time the
introduction of any other part or any other writing or recorded statement which

in fairness ought to be considered contemporaneously with it."
5 The court of

appeals then held that a videotape is not a writing or recording under Rule 1 06

* Immigration and Governmental Services Attorney, Barnes & Thornburg. B.S., Rose-
Hulman Institute of Technology; M.A., Ball State University; J.D., Indiana University School of

Law—Indianapolis.
1. Ind. R. Evm 101(a)
2. Id.

3. See Williams v. State, 681 N.E.2d 195, 200 n.6 (Ind. 1997); Humbert v. Smith, 664

N.E.2d 356, 357 (Ind. 1996).

4. 759 N.E.2d 1036 (Ind. 2001).

5. Id. at 1036-37 (quoting Ind. R. EviD. 106).



1082 INDIANA LAW REVIEW [Vol. 36:1081

because a videotape is not included in the list ofwritings and recording set forth

in Rule 1 00 1 ( 1 ), and the definition ofphotograph, contained at 1 00 1 (2), included

motion pictures.
6

The Indiana Supreme Court granted transfer "to make clear that all modes of
conveying information, including videotapes, constitute writings or recordings

for purposes of Rule 106, even if they are defined by Rule 1001 as
'photographs.

'"7
However, under the facts being considered in Desjardines, the

appellant failed to show the relevance ofthe absent portions ofthe videotape, and
the court upheld the alternative holding of the court of appeals.

8

II. RELEVANCE AND PROBATIVE VERSUS PREJUDICIAL

A. Admission ofBite Mark Evidence

In Carter v. State,
9
Carter appealed his convictions for murder, burglary,

criminal confinement and battery. Carter argued that bite mark evidence used at
his trial should have been excluded because the probative value ofthe bite mark
evidence was outweighed by the danger of unfair prejudicial effect under Rule
403. Carter contended that the bite mark was simply evidence that he was
present at the scene ofthe crime, but not evidence that he had participated in the

beating or murder of the victim, and that the jury had based its finding of guilt

on the bite mark evidence alone.
10

The court stated that "all relevant evidence is 'inherently prejudicial' in a
criminal prosecution, so the inquiry boils down to a balance of probative value
against the likely unfair prejudicial impact the evidence may have on thejury,"11

and that in determining likely unfair prejudicial impact, "courts will look for the

dangers that thejury will substantially overestimate the value ofevidence or that

the evidence will arouse or inflame the passions or sympathies of the jury."
12

The court found the risk that the jury overly relied on the bite mark evidence to
be minuscule, and that the evidence of the bite mark was highly probative to
rebut Carter's contention that he was merely present, not a participant. 13 The
court also stated that these matters (the Rule 403 balancing test) are within the

sound discretion of the trial court.
14

6. Desjardines v. State, 75 1 N.E.2d 323, 326 (Ind. Ct. App.), aff'd in part, vacated in part

by 759 N.E.2d 1036 (Ind. 2001).

7. Desjardines, 759 N.E.2d at 1037.

8. Id.

9. 766 N.E.2d 377 (Ind. 2002).

10. See id. at 381-82.

11. Id. at 382 (quoting Richmond v. State, 685 N.E.2d 54, 55-56 (Ind. 1997)).

12. Id. (quoting Evans v. State, 643 N.E.2d 877, 880 (Ind. 1994)).

13. See id. at 381.

14. See id. at 382.



2003] EVIDENCE 1083

B. Admission ofPhotographic Evidence

In Corbett v. State*
5
Corbett challenged the admissibility of twenty-six

autopsy photographs introduced at trial. The court reiterated the rule that
"[r]elevant evidence, including photographs, may be excluded only if its
probative value is substantially outweighed by the danger ofunfair prejudice." 16

In order to conduct its analysis, the court looked to existing case law, finding

that "[a]utopsy photos often present a unique problem because the pathologist

has manipulated the corpse in some way during the autopsy. Autopsy
photographs are generally inadmissible if they show the body in an altered
condition."

17
However, the court also noted that "there are some situations where

some alteration of the body is necessary to demonstrate the testimony being
given."

18

Eleven ofthe photos showed the body before the autopsy and two additional
photos showed the body after the head wounds had been cleaned and some hair
shaved. These photos were found to have been properly admitted, due to the rule
that photographs depicting a victim in a natural state after death are admissible.

19

Other autopsy photos depicting the body in various stages of examination
were found to be admissible where the pathologist was able to testify as to how
the photos, with portion of skull and brain removed, showed actions he took to
determine the extent and nature of the injuries. This was also true of a photo
showing a portion of skull against the edge of a table, demonstrating how a hard
surface could produce the fracture.

20

The remaining photos were found to have been erroneously admitted. Photos
which should not have been admitted included photos focusing on the hollow
shell of the victim's body. The court held that these photos "greatly and
unnecessarily enhance[d] the gruesomeness of the pictures" and "although

relevant to the cause of death and the disputed issue of the number of blows,
were so prejudicial that the trial court abused its discretion in allowing them to
be admitted."

21

Also excluded were other photos focusing on the ribs and hollow shell ofthe
victim, as they had slight probative value (the broken ribs were not in issue), and

their prejudicial effect was high due to the gruesome nature of the photos. The
court also found in error admission of additional photos of the victim's brain

removed from the skull. Although these photos also showed the extent and
nature of the injuries, they were cumulative and their prejudicial effect

1 5. 764 N.E.2d 622 (Ind. 2002).

16. Id. at 627 (citing Ind. R.EVID. 403; Byersv. State, 709 N.E.2d 1024, 1028 (Ind. 1999)).

This essentially means that photographs simply need to pass the test of Rule 403.

17. Id. (citing Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997), cert, denied, 525 U.S. 1073

(1999)).

18. Id. (quoting Swingley v. State, 739 N.E.2d 132, 133-34 (Ind. 2000)).

19. Id. (citing Loy v. State, 436 N.E.2d 1 125, 1 128 (Ind. 1982)).

20. See id. at 627-28.

21. Id. at 621.



1084 INDIANA LAW REVIEW [Vol. 36:1081

outweighed their probative value.
22

However, the court determined that the
erroneous admission of these photographs had not impacted the defendant's

substantial rights, and thus the error was harmless.
23

In Price v. State™ Price challenged the admission of two photos of himself
found at the crime scene. The photos showed Price at a club with four other
persons, gesturing in a manner that could be considered a gang sign. While the
State admitted that identity and presence at the crime scene were not in issue, it

argued that the "photographs were relevant 'to show the guilty knowledge ofthe
defendant' by demonstrating that he had changed his hairstyle and had gold caps
removed from his teeth."

25

The court said that "[a] defendant does not open the door to otherwise
inadmissible character evidence merely by dressing and grooming in a manner
appropriate for court,"

26
and that "[p]hotographs showing how a defendant

looked at the time of the crime are frequently probative. Here, however, they

largely invitedjurors to evaluate guilt based on whether the defendant looked like

the type of person who would commit this sort of crime. This is what Rule
404(a) prohibits."

27 The court did find the admission of the photographs to be
error, but it was considered to be harmless error.

28

C. Admission ofHair Comparison Evidence

In Wentz v. State?
9 Wentz objected to the admission of hair comparison

evidence by the State's witness. Wentz contended that since the State's witness
could not say with certainty that the hair in evidence matched Wentz' s, her

testimony was so unreliable and speculative that it was prejudicial to allow its
introduction, and that its prejudicial effect substantially outweighed its probative

value.
30

The court restated the existing rule, established in McGrew v. State? 1 that
"trial courts are generally within their discretion to permit hair comparison

analysis."
32

Because Wentz offered nothing to distinguish this testimony from
that in McGrew, and the testimony was that the hair was consistent with and not
necessarily a conclusive match for Wentz' s hair, the proper remedy was "cross-

22. Id. at 627-28.

23. See id. at 628; see also Dunlap v. State, 761 N.E.2d 837, 841-42 (Ind. 2002).

24. 765 N.E.2d 1245 (Ind. 2002).

25. Id at 1248 (quoting Record at 5539-40).

26. Id at 1248-49.

27. Mat 1249.
28. See id. at 1249.

29. 766 N.E.2d 351 (Ind. 2002).

30. Id. at 358. The State's witness had testified that the hair was "sufficiently similar to be

of possible common origin." Id.

31. 682N.E.2d 1289 (Ind. 1997).

32. Wentz, 766 N.E.2d at 358 (citing McGrew, 682 N.E.2d at 1 292).



2003] EVIDENCE 1085

examination, not exclusion."
33

Therefore it was not abuse ofdiscretion to admit
the evidence under Rule 403

.

34

D. Similar Gun Evidence

In Dunlap v. State?
5
the evidence used to convict Dunlap of murder had

included showing and demonstrating a 7.62 assault rifle at trial, despite the fact

that no weapon had been discovered relating to the victim's wounds. The State
had offered the rifle as a demonstrative exhibit during testimony from an expert

tool marks and firearms examiner.
36

Dunlap objected on the basis of Rule 403,
claiming any probative value ofthe similar weapon would be outweighed by its
prejudicial effect.

37

Because no murder weapon had been found, and the defendant claimed the
shooting was an accident, the court found that the trial court had been within its
discretion in allowing the State to utilize the similar weapon to demonstrate how
such a weapon works in order to examine whether use of such a weapon was
likely to have been accidental. The court also noted as significant the fact that
the trial court had admonished the jury that "[t]here was no weapon found in this
case. The weapon that may be displayed is a demonstrative exhibit that is going
to be used by the State to demonstrate or show you what a similar type weapon
could or should look like."

38

E. Improper Admission ofCharacter Evidence

In Wertz v. State?
9
Wertz claimed that the trial court had improperly allowed

evidence concerning prior bad acts in violation ofRule 404(b).
40

Wertz had filed

a motion in limine, requesting that evidence ofprior bad acts be excluded at trial,

and that motion had been granted by the trial court. However, at trial, the State

had offered testimony concerning prior drug transactions involving Wertz.
41

Although Wertz requested a continuing objection to this evidence, the trial

court allowed the testimony and questions, ruling that the questions did not go

to Wertz' character, but rather to help establish motive, intent, identity and/or

mistake. The court agreed with Wertz' assertions that even if some evidence of

33. Id.

34. Id. Wentz also raised Rule 702 issues regarding expert testimony, but the court

determined these issues had not been raised by objection at trial and were therefore waived. Id.

35. 761 N.E.2d 837 (Ind. 2002).

36. Mat 842.
37. Id.

38. Id. (quoting Record at 416).

39. 771 N.E.2d 677 (Ind. Ct. App. 2002).

40. Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible

to prove the character ofa person in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident " Ind. R. Evid. 404(b).

41. Wertz, 11\ N.E.2d at 683-84.



1086 INDIANA LAW REVIEW [Vol. 36:1081

this type was admissible, the continual and repetitive focus on it, at some point,
begins to prove character rather than plan or motive. Although it agreed that the

trial court had erred in continuously overruling these objections, the court of

appeals found the error to be harmless and affirmed the conviction.
42

In Rhodes v. State?* Rhodes appealed from ajudgment finding him guilty of
operating a vehicle while intoxicated and of operating a vehicle when his
privileges were suspended as a habitual traffic offender. Rhodes contended that
improper evidence had been introduced, in violation of Rule 404(b), concerning

prior acts on his part.
44

During the State's case in chief, the prosecution had introduced evidence that

the arresting officer approached the defendant because he knew him to be a
habitual traffic offender. The court held this evidence to be proper as it
explained why the officer had investigated Rhodes after seeing him operate a
vehicle. However, the prosecution also introduced evidence of the officer's

"other run ins with Mr. Rhodes,"
45

testimony from the officer indicating that

Rhodes had a history of public drinking, and Rhodes' entire negative driving
history without redactions.

The State had also introduced evidence that there had been a domestic
dispute between Rhodes and one of his witnesses, presented evidence that the

witness was pregnant, and questioned the legitimacy ofthat witness' child.
46 The

State also questioned Rhodes about his prior habitual traffic offender arrest, prior

arrests, and probation, and questioned the credibility of Rhodes' witness.
47

The court pointed out that Rhodes had failed to object to much of this
character evidence at trial, and this would normally result in waiver ofthe issue.

However, this waiver does not apply if "the admission of evidence constitutes

fundamental error."
48 The court stated that the test for this error is that "[i]n

order to qualify as fundamental error, an error must be so prejudicial to the rights

of the defendant as to make a fair trial impossible."
49

In this case, the court held that "the introduction of improper character

evidence was so blatant and so pervasive that it rendered a fair trial
impossible."

50 The court supported this finding by restating that "[i]n its effort
to prove guilt, the State may not 'flood the courtroom' with unnecessary and
prejudicial details of prior criminal conduct merely because some of that
evidence is relevant and admissible."

51
Under the facts ofRhodes, the court held

that "the prosecution did not just flood the courtroom with unnecessary and

42. Id. at 684.

43. 771 N.E.2d 1246 (Ind. Ct. App. 2002).

44. See id, at 1251.

45. Id. at 1252 (quoting Record at 91).

46. See id. at 1252-54.

47. See id. at 1254-56.

48. Id. at 1256 (citing Sauerheber v. State, 698 N.E.2d 796, 804 (Ind. 1998)).

49. Id. (citing Sauerheber, 698 N.E.2d at 804).

50. Id.

51. Id. (quoting Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1 997)).



2003] EVIDENCE 1087

prejudicial details of prior criminal conduct; its case in chief seemed to be a
focused inquiry into Rhodes's and Ralston's prior misconduct" and "the

introduction of improper character evidence constituted fundamental error."
52

In Greenboam v. State* Greenboam appealed his convictions for child
molestation, arguing that evidence of his prior guilty pleas for molesting his

stepdaughter and daughter (who was also the current victim) should have been
excluded under Rule 404(b). At trial, the evidence ofthe prior guilty pleas was
admitted with an admonishment to thejury that the evidence was to be used only
for demonstrating a common plan or scheme.54

In considering whether this admission was proper, the appellate court stated
that

[o]ur adoption of Federal Rule of Evidence 404(b) in Lannan v. State

(1992), Ind., 600 N.E.2d 1334, and our subsequent promulgation of

Indiana Rule of Evidence 404(b), do not represent a mere continuation
of that common law caselaw. Instead of the old "common scheme or
plan" rule, our law now admits evidence of "plan" alone. It is a
narrower exception than our old rule, which tended to degenerate into an
all-purpose excuse for admitting pretty much any old prior misconduct.55

The court found that the State had offered no evidence to support the contention
that Greenboam' s previous bad acts were in any way part ofa plan to molest his
daughter regarding the charged crimes. The two incidents of molestation were

not part of an uninterrupted transaction, and the prior bad acts could not be

described as part ofa plan to commit the crimes currently charged. The court of
appeals found that because the prior bad acts could only serve to establish

Greenboam's propensity to commit child molestation, the trial court had abused
its discretion by admitting the evidence of those prior acts.

56

F. Evidence ofContemporaneous Crimes Not Charged

In Bocko v. State,
51

Bocko appealed his convictions for possession of
cocaine, possession of marijuana, and reckless possession of paraphernalia, in

part based on his assertion that the trial court improperly allowed introduction of

evidence that he also possessed heroin, but was not charged with possession of

52. Id.

53. 766 N.E.2d 1247 (Ind. Ct. App. 2002).

54. See id. at 1249-54.

55. Id. at 1253-54 (quoting Lay v. State, 659 N.E.2d 1005, 1015 (Ind. 1995) (Shepard, C.J.,

dissenting)).

56. See id. at 1255; see also Turney v. State, 759 N.E.2d 671, 679-80 (Ind. Ct. App. 2001)

(holding that allegations of conversations of a sexual nature with and requesting nude photos of

other underage persons did not demonstrate a plan on the part ofthe defendant to perform oral sex

on the victim).

57. 769 N.E.2d 658 (Ind. Ct. App. 2002).



1088 INDIANA LAW REVIEW [Vol. 36:1081

heroin.
58

Bocko argued that the heroin evidence was not relevant to the crimes charged
and therefore should have been excluded under Rule 402 (which states that
evidence that is not relevant is not admissible).

59
The court referenced Rule 401

for its proposition that "[ejvidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would without the evidence,"60 and then
quoted Minnickv. State,

61
for its proposition that "[e]vidence ofhappenings near

in time and place that complete the story of the crime is admissible even if it

tends to establish the commission of other crimes not included among those
being prosecuted."

62
Because the heroin evidence completed the story of

Bocko's crime, the trial court was within its discretion to admit the evidence.63

Bocko then argued that even ifthe evidence was relevant, it should have been
excluded under rule 404(b) because part of the 404(b) test of admissibility

requires that an analysis under Rule 403 be performed, balancing the probative

value with the prejudicial effect.
64

The court found that any error was harmless
under the guideline set forth in Cook v. State 65 which states that "improper
admission of evidence is harmless error when the conviction is supported by
substantial independent evidence of guilt as to satisfy the reviewing court that

there is no substantial likelihood the questioned evidence contributed to the

conviction."
66 The court found sufficient evidence of Bocko's guilt ofthe other

charged crimes to find the present error, if any, harmless.
67

The fact that the uncharged conduct in Bocko was contemporaneous was
certainly a significant point. A recent example of a trial court allowing
introduction of non-contemporaneous, non-charged bad acts led to a different

result. In Bald v. State
69,

Bald appealed his convictions for arson and felony

murder. The evidence introduced against Bald at trial included an assertion that

he had threatened that the victims "would burn" prior to the occurrence of the

58. See id. at 664-65. As a footnote, the court explained that the State did not receive the test

results on the third substance until shortly before trial and was not allowed to add the new count

for possession of heroin. See id. at 665 n.4.

59. Id. at 664 (citing Ind. R. Evid. 402).

60. Id. (quoting IND. R. EVID. 401).

61. 544N.E.2d471(Ind. 1989).

62. Bocko, 769 N.E.2d at 664-65 (citing Minnick, 544 N.E.2d at 480).

63. Id. at 665.

64. Id. (citing IND. R. Evid. 403, 404(b)).

65. 734 N.E.2d 563 (Ind. 2000).

66. Bocko, 769 N.E.2d at 665 (citing Cook, 734 N.E.2d at 569).

67. Id. The court did, however, overturn the conviction for reckless possession of

paraphernalia on other grounds. Id. at 664; see also Scalissi v. State, 759 N.E.2d 618, 623 (Ind.

2001) (allowing evidence of uncharged rape which occurred immediately prior to the charged

murder and holding that the proximity in time made the alleged rape probative as to the defendant's

motive, intent, or absence of mistake).

68. 766 N.E.2d 1 170 (Ind. 2002).



2003] EVIDENCE 1089

fatal fire, as well as evidence ofan unrelated incident in which he had threatened

an unidentified man and then later returned with a gun.69

The State argued that this evidence of the earlier, unrelated altercation was
evidence ofmotive. The court, however, agreed with Bald that this evidence had
been used to show Bald's propensity to carry out his threats, thus proving
character. Because this type of evidence is precluded by Rule 404(b), the court

found that this evidence should have been excluded.
70

However, the court found

the error to be harmless and declined to reverse the convictions.
71

Another variation on this theme can be found in Wilson v. State,
12
where

Wilson appealed his conviction for murder. Wilson argued that the introduction

of evidence that he carried on prostitution and drug dealing businesses at the

same time as his trial for murder violated Rule 404(b)' s prohibition against
evidence of other crimes or acts to prove guilt as well as Rule 403 's prohibition

on evidence having more prejudicial effect than probative value.73

The court found that Rule 404(b) was not violated because this evidence was
necessary for the jury to understand the relationships between the victim,

defendant and witnesses. In addition, the trial court had admonished the jury as

to the evidence's allowed usage and evidence also existed that the defendant had

admitted that he '"had to take her [the victim] out of it' to protect his business."
74

The court also found no violation of Rule 403 because the trial court had
carefully documented its recognition and evaluation of the Rule 403 issues

involved in the introduction of the evidence.
75

In Craun v. State
16
Craun argued that his conviction for child molestation

should be reversed because the trial court had allowed evidence ofprior bad acts

in violation ofRule 404(b). Craun had been accused ofmolesting three girls, and

although the accusations ofthe second and third girls were severed from the trial

at issue, those girls were allowed to testify regarding their allegations against

Craun on the basis that Craun had opened the door by claiming contrary intent.
77

The court ofappeals agreed with Craun that he had never claimed a contrary
intent, but had insisted that he had never committed the relevant acts.

Significantly, the court said that the testimony ofthe other two girls '" if relevant
at all, shows a propensity for [child molesting], which is precisely what is
prohibited by the Rules of Evidence,'"

78
and that even if Craun's motive was

properly at issue, the court was "at a loss to determine how his alleged touching
of [the other two girls] is relative to his motive for touching [the girl in

69. Mat 1173.
70. Id. (quoting IND. R. EVID. 404(b)).

71. Id

72. 765 N.E.2d 1265 (Ind. 2002).

73. See id. at 1270.

74. Id.

75. See id. at 1271.

76. 762 N.E.2d 230 (Ind. Ct. App. 2002).

77. See id. at 232-35.

78. Id. at 237-38 (quoting Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind. 2001)).



1090 INDIANA LAW REVIEW [Vol. 36:1081

question]."
79

Because the probative value of the additional testimony from the
other two girls was found to be substantially outweighed by the danger of unfair
prejudice, the court ofappeals found that the trial court had abused its discretion
and remanded for a new trial. 80

G. Introduction ofPolice Interview With RepeatedAccusations ofGuilt

In Bostick v. State*
1

Bostick argued that the introduction of a police
interview, in which thejury was allowed to "hear [the defendant's] interrogators
'repeatedly assert their beliefs and opinions that there was absolutely no doubt
that [the defendant] had set the fire that killed her children,'"

82
was a violation

of Rule 403 because the probative value was substantially outweighed by the
danger of unfair prejudice.

83

Although the interrogators claimed multiple times to know ofher guilt during
the questioning, Bostick never admitted guilt and maintained that she did not
remember committing the crimes.84 The court determined that the repeated
accusations and defendant's responses had little probative value, but also found

they did not create a risk ofunfair prejudice.
85

In determining that the trial court

had not abused its discretion in allowing the admission ofinterrogation evidence,

the court cited Dunlap for its proposition that "[t]he evaluation of whether the
probative value of a particular item of evidence is substantially outweighed by

the danger of unfair prejudice is a discretionary task best performed by the trial
court."

86

H. Use ofAliases andMug Shots

In Hyppolite v. State*
1
Hyppolite argued that the trial court had improperly

allowed evidence of use of alias identities as well as a mug shot in violation of
Rule 404(b). At trial, the State introduced a driver's license with Hyppolite's

photo, but bearing another name. Because Hyppolite denied committing the

crime, the court found that the license was highly probative of identity as the
police officer had used the photo to identify Hyppolite as the suspect.

88

The State also questioned Hyppolite regarding five other aliases. Because
Hyppolite spoke with an accent at trial, but the voice on audiotape evidence

79. Id. at 237 (citing Sloan v. State, 654 N.E.2d 797, 802 (Ind. Ct. App. 1995)).

80. See id. at 238-40.

81. 773 N.E.2d 266 (Ind. 2002).

82. Id. at 269 (quoting Brief of Defendant-Appellant at 34).

83. Id.

84. Id at 270-71.

85. Mat 1271.
86. Id. (citing Dunlap v. State, 76 1 N.E.2d 837, 842 (Ind. 2002)). But See Mote v. State, 775

N.E.2d 687 (Ind. Ct. App. 2002) (finding introduction of redacted videotape containing multiple

references to prior criminal history to be abuse of discretion).

87. 774 N.E.2d 584 (Ind. Ct. App. 2002).

88. See id. at 592.



2003] EVIDENCE 1091

submitted by the State did not betray an accent, the court found the fact that

Hyppolite used aliases to support the State's contention that Hyppolite may use
different accents according to the identity or alias currently in use. Therefore,

the "use ofan alias was not so far removed from the time ofthe alleged crime as
to be irrelevant to this case."

89

Hyppolite further challenged the use ofa mug shot at trial because mug shots
may imply that the individual has been previously arrested. However, the court
stated that "mug shots are not per se inadmissible. They are admissible if (1)
they are not unduly prejudicial and (2) they have substantial independent

probative value."
90

Because the photo in this case was a head-on Polaroid picture
with handwritten notations, and not a standard booking mug shot, the court felt
that there was nothing unduly prejudicial about the photo. It also noted that the
photo was highly probative in that it showed Hyppolite's photo and his real
name, and was therefore a tool in resolving the identity ofthe individual charged
with the crime. The court of appeals found that the trial court had not erred in
admitting the evidence.

91

/. Evidence ofBehavior While Giving Statement to Police

In Pierce v. State,
92

Pierce filed a motion in limine to exclude evidence that

Pierce had masturbated while giving statements to police. The motion was
denied by the trial court, which stated that the evidence "'does have some
tendency to impact upon the jury's consideration of his intent in entering that

residence, the fact that in a discussion ofthe incident, he was engaged in a sexual

act . . . ,"
93

The court of appeals agreed with Pierce's contention that this testimony
violated Rules 403 and 404(b). It stated that

Frazier's testimony fails both prongs of the [404(b)] test. First, it does

not fall under an exception to Rule 404(b). Unlike the State's claim,

evidence that Pierce masturbated during his confession does not

establish that he intended to rape the victim when he broke into her
home. There appears to be no reason to admit this evidence other than

to establish that Pierce has a propensity for bizarre behavior.
94

The court also agreed with Pierce that this evidence was substantially more
prejudicial than probative and the trial court had abused its discretion in allowing

the testimony.
95

89. Mat 593.
90. Id. (citing Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001)).

91. See id. at 593.

92. 761 N.E.2d 826 (Ind. 2002).

93. Id. at 829.

94. Id.

95. Id.



1092 INDIANA LAW REVIEW [Vol. 36:1081

J. Notice Provision of404(b)

In Burgett v. State?
6
Burgett claimed that prior bad act evidence was

improperly admitted by the trial court because the State had not complied with
the notice provision of Rule 404(b).

97
The notice provision of Rule 404(b)

provides that such prior bad act evidence is not admissible to show action in
conformity therewith, but that such bad act evidence may be admissible in some
circumstances, "provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, or during trial

if the court excuses pre-trial notice on good cause shown."
98

At trial, the State had waited until the day of trial to file notice of its intent
to use prior bad act evidence against Burgett. The court noted that "[t]he purpose
of the notice provision, under Ind. R. Evid. 404(b), is to reduce surprise and

promote the early resolution of questions of admissibility."
99 The court noted

that the defense was aware ofthe prior bad acts and the likelihood that the State
would attempt to use them, and that there had recently been an election and
change ofpersonnel in the Prosecutor's office. The court ofappeals held that the
trial court had not committed error in allowing the use of the prior bad act

evidence.
100

K. Evidence of Transferred Intent to Prove Motive

In Pickens v. State™ Pickens argued that evidence that he had robbed and
shot another man two weeks before he shot the victim should have been excluded
as evidence of a prior bad act. Pickens argued that this evidence merely showed

he was capable of shooting someone else. The court found that the evidence of
the earlier incident was relevant to show intent to shoot the victim because there
was evidence that the victim had been wearing the coat of the man shot earlier
when he was attacked by Pickens. 102 The court found that

[t]he evidence ofPickens's dispute with [the earlier victim] was relevant
to show Pickens's motive to shoot [the earlier victim]. The fact that
Pickens mistakenly shot [the later victim] instead of [the earlier victim]

does not eliminate the motive for the shooting. Thus, the evidence was
relevant to a matter at issue other than Pickens's propensity to commit
the murder.

103

96. 758 N.E.2d 571 (Ind. Ct. App. 2001).

97. See id. at 579.

98. Ind. R. Evid. 404(b).

99. Burgett, 758 N.E.2d at 579 (citing Dixon v. State, 712 N.E.2d 1086, 1090 (Ind. Ct. App.

1999)).

100. Id.
*

101. 764 N.E.2d 295 (Ind. Ct. App. 2002).

102. See id. at 298.

103. Id. (citing Swanson v. State, 666 N.E.2d 397, 398 (Ind. 1996)).



2003] EVIDENCE 1093

L. Evidence ofAccess to the Same Type of Weapon Used in the Crime

Pickens also challenged the admission of statements from police officers

stating that they had seen an assault rifle in Pickens' home two years before the
charged crime occurred. Pickens argued that this evidence was inadmissible
under Rule 404(b) as evidence of a prior bad act.

104

In considering this argument, the court first noted that "it is by no means
clear that weapons possession, evidence ofgun sales, and the like, are necessarily

prior 'bad acts' for 404(b) purposes."
105

Assuming for argument that such
evidence could be considered evidence ofprior bad acts, the court reiterated that

"[e]vidence that a defendant had access to a weapon ofthe type used in a crime
is relevant to a matter at issue other than the defendant's propensity to commit
the charged act."

106

The court also considered Pickens' contention that the length of time
between the officers' observation and the charged offense made the probative
value ofthe evidence low in relation to its prejudicial effect. The court held that
the observation had high probative value on the issue of Pickens' access to the

type of weapon used, and that the trial court had not abused its discretion in
admitting the evidence.

107

M. Use ofthe Rape Shield Statute as a Shield and a Sword

In Turney v. State,
m

previously mentioned for its Rule 404(b) implications,

the victim had accused Turney of molesting her. Turney argued that he should

have been allowed to introduce evidence that the victim had molested the

younger children ofher foster parents. The State invoked Rule 412(a) to prevent
testimony on this subject.

109
Rule 412, the "rape shield" rule, provides:

[I]n a prosecution for a sex crime, evidence of the past sexual conduct

ofthe victim or witness may not be admitted, except: (1 ) evidence ofthe
victim's or pf a witness's past sexual conduct with the defendant; (2)
evidence which shows that some person other than the defendant
committed the act upon which the prosecution is founded; (3) evidence

that the victim's pregnancy at the time of trial was not caused by the
defendant; or (4) evidence of conviction for a crime to impeach under

Rule609.
110

The presence of evidence that sexual contact did occur, and the State's
introduction of evidence of the victim's physical or psychological condition to

prove that sexual conduct occurred implied that the defendant was the

104. See id. at 299.

105. Id (quoting Williams v. State, 690 N.E.2d 162, 174 (Ind. 1997)).

106. Id. (quoting Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000)).

107. See id. at 300.

108. 759N.E.2d671. See supra note 56.

109. See Turney, 759 N.E.2d at 675-76.

110. Ind.R.Evid. 412(a).



1094 INDIANA LAW REVIEW [Vol. 36:1081

perpetrator. The court found that allowing the State to make this inference of
guilt, while preventing the defendant from offering an alternate explanation for

that condition, was improper. 111

The court held that

the State cannot use the Rape Shield Statute both as a shield and as a
sword. It is error to apply a rule "mechanistically to prohibit the defense

from either offering its version of the facts or assuring through cross-
examination that the trier of fact has a satisfactory basis for evaluating

the truth of the witnesses' testimony."
112

III. Impeachment

A. Inquiry Into Validity of Verdict

In Davis v. State,
112

Davis argued several issues on appeal, including that his

constitutional rights were violated because some jurors saw him in handcuffs,
and other jurors may have overheard rumors that Davis' family had called in
bomb threats to the courthouse. The court held that these incidents did not
warrant a mistrial because Davis could not show that the incidents caused him
any actual harm.

114

Davis claimed that the subsequent questioning of the jurors about viewing

Davis in restraints and knowledge of the bomb threat violated Rule 606(b).
However, the court noted that it did not. The court stated that "Rule 606(b)
permits ajuror to testify concerning 'whether extraneous prejudicial information

was improperly brought to thejury's attention' or 'whether any outside influence
was improperly brought to bear upon any juror.'"

115
The court found this

questioning entirely proper as both the defense and prosecution had asked proper

questions, and each juror denied that either item had any bearing on their

verdict.
116

In Majors v. State,
nl

Majors appealed his conviction for murder, arguing

several issues related to jury conduct. During the trial, the judge became aware
that a particularjuror was making improper facial expressions and passed a note
through the bailiff, cautioning the juror. After announcement ofthe verdict, the

juror signed an affidavit saying the note from the judge had upset and frightened

her. Majors contended this was an improper and prejudicial ex-parte

111. SeeTurney, 759 N.E.2d at 676-77.

112. Id. at 677 (quoting Saylorv. State, 559 N.E.2d 332, 335 (Ind.Ct.App. 1990)). Thecourt

also noted that the State's theory at trial was that the victim was innocent and sexually pure. See

id.

113. 770 N.E.2d 3 1 9 (Ind. 2002).

114. Id. at 325-26.

1 1 5. Id. at 325 n.4 (quoting IND. R. EviD. 606(b)).

116. Id. (citing Record at 9 1 4-24).

117. 773 N.E.2d 231 (Ind. 2002).



2003] EVIDENCE 1095

communication requiring reversal.
118 The court found this note innocuous and

within the proper discretion of the trial court to control and manage the jury. 119

Majors also argued that the jury was improperly influenced during activities
outside of deliberations and the court room. He first claimed that one juror
ordered two beers after hours and drank them in his hotel room. To support his
contention, he referred to Schultz v. Valle,

120
in which the verdict was found

invalid because jurors had drank alcohol during deliberations. However, in this

case the juror had only consumed alcohol after deliberations had ceased for the
day, a full night before the next day's deliberations would resume. The court
held that Majors had not demonstrated gross misconduct or probable harm.

121

Majors next argued that the jury was improperly influenced by the
presentation of a birthday cake from the judge, a few bottles of wine from the

sheriffs wife, and transportation of the jurors to a cookout and fishing trip by

bailiffs and local law enforcement. Majors argued that this fraternization with

law enforcement personnel led the jury to improperly favor the State. The court

found that the trial court had not abused its discretion in rejecting these

arguments because nothing in the record showed that Majors suffered any
prejudice as a result of the outings or gifts or that the jury's verdict was
influenced by the events.

122

Majors argued that the jury improperly discussed parts of the trial prior to

deliberations, including a juror affidavit stating that jurors made comments
during trial about physical characteristics of State and defense attorneys, and

about how one defense attorney questioned witnesses. The court held that this
claim was an attempt to impeach the verdict, which is not allowed under Rule
606(b).

123
In a footnote, the court restated Rule 606(b), which precludes juror

testimony, except as "(1) to drug or alcohol use by any juror, (2) on the question

of whether extraneous prejudicial information was improperly brought to the
jury's attention or (3) whether any outside influence was improperly brought to
bear upon any juror."

124
In regard to the totality of Majors' jury-related

objections, the court found that Majors had not demonstrated an "interest

sufficient to overcome the interests of finality ofverdicts and avoidance ofjuror

harassment."
125

In Hall v. State,
126

Hall appealed the trial court's denial of his request to

depose members of the jury that had found him guilty of murder and neglect of
a dependent. During the course of the trial, a stepson of one of the jurors had

118. See id. at 234.

119. Id.

120. 464 N.E.2d 354 (Ind. Ct. App. 1984).

121. See Majors, 773 N.E.2d at 235-36.

122. See id. at 236.

123. See id. at 236-37.

124. Id. at 237 n.5 (quoting Ind. R. Evid. 606(b)).

1 25. Id. at 238. Majors also argued that the mention of polygraph evidence was error. The

admission of such evidence was found to have had little effect and to be harmless. Id. at 238-39.

1 26. 760 N.E.2d 688 (Ind. 2002).



1096 INDIANA LAW REVIEW [Vol. 36:1081

relayed to the juror that he believed Hall was innocent, but later relayed to the
juror's wife that he now believed Hall was guilty. Thejuror had then relayed this
information to thejury. Significantly, this appeal took place during the pendency

of the motion to correct errors, which already contained affidavits from jurors
relaying the alleged facts.

127

Hall asserted that his constitutional right to confront witnesses against him
extended to the right to depose members of a jury to determine if misconduct
occurred during the trial or deliberations. In analyzing this case, the court looked

to a recent decision of the Indiana Supreme Court, Griffin v. State.
m

In Griffin, the Indiana Supreme Court recognized the importance of
"protecting a defendant's right to confront witnesses, 'which may be violated if
ajury considers information that was not in evidence.'"

129
However, the Indiana

Supreme Court determined in Griffin that the common law prohibition against a
juror testifying about how an outside influence affected him survived the
adoption of Rule 606(b), meaning that the "defendant's right to confront
witnesses was not violated if the jury could testify to the existence of a 606(b)
exception, but not the effect that the influence had on them."

130

The Hall court further cited Griffin to show that the State has a paramount
interest in limiting discovery regarding juror misconduct. This interest is based

on "concerns of post-verdict jury tampering, defeating the jury's solemn acts

under oath, and the possibility that dissatisfied jurors would attempt to destroy

a verdict after assenting."
131 The court did find, however, that the deposition of

jurors may be used when appropriate, such as in situations where "the risk of
prejudice is substantial, as opposed to imaginary or remote."

132 The court
suggested that a more appropriate method in these circumstances would be "in

camera interviews with jurors to determine the extent to which they were

exposed to prohibited information and the potential prejudice that resulted."
133

In summation, the court held that

following the previous interpretations of 606(b) and the common law
views ofjury impeachment, we find no basis for mandating that a party
has the right to depose the jury. Rather, the appropriate method to be

used for determining prejudice when there are allegations of jury
misconduct is best left to the discretion ofthe trial court.

134

In South Bend Clinic v. Kistner,
135

the issue on appeal was also jury

misconduct. Certain members of the jury had consulted dictionaries for

127. See id. at 689.

128. 754 N.E.2d 899 (Ind. 2001).

129. Hall, 760 N.E.2d at 690 (quoting Griffin, 754 N.E.2d at 902).

130. Id. (citing Griffin, 754 N.E.2d at 903).

131. Id. at 691 (citing Griffin, 754N.E.2d at 902).

132. Id at 692 (citing Agnew v. State, 677 N.E.2d 582, 584 (Ind. Ct. App. 1997)).

133. Id.

134. Id.

135. 769 N.E.2d 591 (Ind. Ct. App. 2002).



2003] EVIDENCE 1097

definitions ofwords after the trialjudge had refused the request. The court noted

that "a jury's verdict may not be impeached by the testimony of the jurors who
returned it,"

136
and that an exception to that rule exists where "there is evidence

demonstrating that the jury was exposed to improper, extrinsic material during

its deliberations, and when a substantial possibility exists that the verdict was
prejudiced by the improper material."

137
Using this criteria, the court determined

that there was no evidence that consulting a dictionary affected the jury's
deliberations or in any way resulted in prejudice to the defendants. 138

B. Violation ofSeparation of Witnesses Order

In Jiosa v. State,
139

Jiosa appealed convictions for child molestation and for

being a habitual offender. At trial, the judge had ordered separation of the

witnesses. A non-testifying witness had been outside the courtroom and
overheard Jiosa' s father shouting details ofthe current testimony.

140
The witness

in the hallway contacted the defense counsel, offering to testify as to an alternate

explanation of the testimony previously offered. The trial court excluded this
testimony based on the separation of witnesses order.

141

In considering whether this exclusion was proper, the court looked to

established case law regarding Rule 615. Rule 6 1 5 sets out the circumstances for

use ofa separation ofwitnesses order, but does not specifically address remedies

for violations of such an order.
142

The court stated that it was not clear that a
violation of the order had occurred, but assumed one for the purposes of

discussion. Based on the facts that the proffered witness had inadvertently

overheard the repeated testimony, the court relied upon the common law rule that
"it is an abuse of discretion to exclude witnesses for violations of a separation

order when the party seeking to call the witness had no part in the violation ofthe
order."

143 The court found that the trial court had abused its discretion and
reversed the convictions.

144

In Childs v. State™
5
however, ^the court found that a witness had been

properly prevented from testifying pursuant to a separation order. In Childs, a

136. Id at 593 (citing Ward v. Saint Mary Med. Ctr. of Gary, 658 N.E.2d 893, 894 (Ind.

1995)).

137. Id. (citing Ind. R. EviD. 606(b)(2); Dawson v. Hummer, 649 N.E.2d 653, 664 (Ind. Ct.

App. 1995)).

138. See id.

139. 755 N.E.2d 605 (Ind. 2001).

140. See id. at 606.

141. See id.

142. See id. at 607. Rule 615 provides that "[a]t the request of a party, the court shall order

witnesses excluded so that they cannot hear the testimony or discuss testimony with other witnesses

. ..." IND.R.EVID. 615.

143. Mat 608.
144. See id. at 609.

145. 761 N.E.2d 892 (Ind. Ct. App. 2002).



1098 INDIANA LAW REVIEW [Vol. 36:1081

person not on the witness list (Childs' fiance) had been present for part of the
trial proceedings, and then offered testimony contradicting evidence introduced

in her presence. The witness had remained in the courtroom after discussing the
possibility of testifying with Childs. The trial court declared her a tainted
witness and excluded her testimony.

146

Although the court of appeals considered the holding in Jiosa, it
distinguished facts in the present case. The court held that once the defense
became aware that the fiance might testify, she became subject to the separation
order, and that her testimony may have represented a shift in defense strategy that
would have left the State at a disadvantage. Because the defense had a part in the
violation of the separation order by not excluding the witness once it was
discovered that she might testify, Jiosa did not apply and the remedy for
violation of the separation order was within the discretion ofthe trial court.

147

In Kirby v. State™* Kirby argued that the trial court had abused its discretion

by allowing two police detectives to remain at the State's table during the trial
in violation of Rule 615. The State was allowed to exclude one detective from
the separation order as an officer or employee of a party that is not a natural

person, and the other detective as an essential witness.
149

While Rule 615

requires separation of witnesses at the request of a party, the rule

does not authorize the exclusion of (1) a party who is a natural person,
or (2) an officer or employee of a party that is not a natural person

designated as its representative by its attorney, or (3) a person whose
presence is shown by a party to be essential to the presentation of the
party's cause.

150

Kirby argued that one detective would have been sufficient to aid the State

in its case. However, the State had demonstrated that both detectives had

participated in the investigation and had interviewed separate witnesses. In

preparation for the four to six week trial, the detectives had interviewed
approximately 220 witnesses. In finding that the trial court had not abused its

discretion, the appellate court said "[notwithstanding the important purpose of

Rule 615 to minimize prospective witnesses from exposure to the testimony of

other witnesses ... we decline to find that the trial court abused its
discretion

" 151

146. Id. at 895.

147. Id.

148. 11A N.E.2d 523 (Ind. Ct. App. 2002)

149. See id. at 537-38.

150. Ind. R. Evid. 615.

151. Kirby, 11A N.E.2d at 538.



2003] EVIDENCE 1099

IV. Opinions and Expert Testimony

A. Appropriate Use ofExpert Testimony

In Miller v. State,
151

Miller appealed convictions for murder and criminal

deviate conduct. Miller was a mentally-retarded individual who had provided
incriminating answers to police interrogation (after being presented with

extensive fabricated evidence by the police, including a fake fingerprint card, a

fake computer printout, and false claims ofeyewitness accounts). After finding

that the incriminatory statements were indeed voluntary, the court considered

whether or not the trial court had committed error in excluding the testimony of

a psychologist called by the defense as an expert in "'social psychology ofpolice

interrogation and false confessions.'"
153

The proffered expert testimony would have discussed modern police
interrogation techniques, howthose techniques can lead to a false confession, and
how to analyze the undisputed incriminating statements for indicia ofwhether or
not they were true confessions.

154
Miller argued that, absent this expert

testimony, he had no opportunity to demonstrate why a mentally retarded
individual would admit to false accusations when presented with false evidence
and police pressure. The State argued that the testimony was properly excluded

because the facts ofthe confession were not in dispute, and alternatively that the

exclusion of the proffered evidence was harmless.
155

The court first observed that a determination by a trial court that a statement
was admissible and voluntary does not preclude the defense from challenging its

weight and credibility.
156

This finding was based on the fact that "[t]he
jury . . . remains the final arbiter of all factual issues under Article 1, Section 19

of the Indiana Constitution."
157 The court stated that "[e]xpert testimony is

appropriate when it addresses issues not within the common knowledge and
experience ofordinary persons and would aid thejury."

158 The court also referred
to Carter v. State

159
for its holding that Rule 704(b) prohibits experts from

testifying to intent, guilt or innocence, truth or falsity of testimony, or to legal

conclusions. In Carter, the court held that "a psychologist's testimony that

autistic children find it difficult to deceive 'came close to, but did not cross the

line into impermissible Rule 704(b) vouching.'"
160

The court ultimately held that "the fact that the content of the interrogation

1 52. 770 N.E.2d 763 (Ind. 2002).

153. Id. at 770 (quoting Brief of Appellant at 17).

154. See id.

155. See id. dXlll.

156. See id.

157. Miller, 770 N.E.2d at 772-73 (citing Morgan v. State, 648 N.E.2d 1 164, 1 170 (Ind. Ct.

App. 1995)).

158. Id. at 773 (citing Ind. R. Evid. 702(a)).

159. 754 N.E.2d 877, 882-93 (Ind. 2001).

160. Miller, 770 N.E.2d at 773 (quoting Carter, 754 N.E.2d at 883).



1 100 INDIANA LAW REVIEW [Vol. 36:1081

was not in dispute is not a proper basis on which to exclude Dr. Ofshe's
testimony,"

161
and that the trial court's determination of sufficient voluntariness

for admissibility "did not preclude the defendant's challenge to its weight and
credibility at trial."

162
The court ordered a new trial for the appellant, stating that

the psychologist's testimony would have aided thejury in understanding relevant
aspects ofpolice interrogation and interrogation ofmentally retarded individuals,

"topics outside common knowledge and experience." 163 In the event that some
of the witness testimony might exceed the limits imposed on opinion testimony
by Rule 704(b), the trial court may uphold individual objections as opposed to
excluding the whole ofthis type oftestimony, which would prevent the defendant
from presenting a defense.

164

In Cansler v. Mills,
165

Cansler appealed from a summary judgment decision
for the appellee. He had sued General Motors based on the allegation that his air
bag had failed to open on impact, and that the air bag was defective. General
Motors' motion for summaryjudgment was granted because it provided evidence
that the vehicle complied with the 1 994 Federal Motor Vehicle Standard, and that
Cansler had failed to provide any expert witness testimony, which is required to

rebut the presumption that the product was not defective. Cansler had submitted
the deposition ofan auto mechanic who examined the car after the accident, and
concluded that the air bag should have deployed. However, the trial court ruled

that the mechanic was not qualified to render an expert opinion, and his
testimony was therefore inadmissible.

166

On appeal, Cansler argued that the mechanic's testimony was admissible
because it was based on his observation and skill rather than on scientific
principles.

167
The court stated that, under Rule 702, a witness can "be qualified

as an expert by virtue of'knowledge, skill, experience, training, or education,'"
168

and that only one of these characteristics is necessary to qualify someone as an
expert.

169 A witness can be qualified as an expert on the basis of practical
experience alone, but '"expert scientific testimony is admissible only ifthe court

is satisfied that the scientific principles upon which the expert testimony rests are

reliable.'"
170

Because the mechanic had never consulted on a defective air bag, never had

air bag training, never attended classes relevant to the particular model of car,

161. Id.

162. Id.

163. Id. at 774.

1 64. See id.

165. 765 N.E.2d 698 (Ind. Ct. App. 2002).

166. Id. at 701.

167. Id. at 702.

168. Id. (quoting Creasy v. Rusk, 730 N.E.2d 659, 669 (Ind. 2000) (quoting IND. R. EVID.

702(a))).

169. Id. (citing Creasy, 730 N.E.2d at 669).

170. Cansler, 765 N.E.2d at 702 (quoting West v. State, 755 N.E.2d 173, 180 (Ind. 2001)

(quoting IND. R. EviD. 702(b))).



2003] EVIDENCE 1101

and never worked designing, testing, or certifying air bag systems, the court
determined that the mechanic did not have enough experience with air bag

fundamentals to qualify as an expert. Although the court found that the trial

court had not abused its discretion in failing to qualify the mechanic as an expert,

it stated that "'qualification under Rule 702 (and hence designation as an expert)

is only required if the witness's opinion is based on information received from

others pursuant to [Indiana Evidence] Rule 703 or on a hypothetical

question,'"
171

and that "[t]he testimony of an observer, skilled in an art or

possessing knowledge beyond the ken ofthe average juror may be nothing more
than a report of what the witness observed, and therefore, admissible as lay

testimony."
172

The court went on to say that "[s]killed witnesses not only can testify about
their observations, they can also testify to opinions or inferences that are based

solely on facts within their own personal knowledge," 173 and that to be admissible
under Rule 701, opinion testimony of such a witness must be '"(a) rationally

based on the perception of the witness and (b) helpful to a clear understanding

of the witness's testimony or the determination of a fact in issue.'"
174

In this case, the mechanic's testimony was based on years of experience
working with salvaged vehicles that had suffered similar frame damage and with
deployed air bags. His testimony about the damage to Cansler's vehicle and
comparisons to similarly damaged vehicles observed during his experience were
merely a report of his personal observations. The court held that, while the
mechanic was not qualified to testify as an expert, he could testify about
observations from years of experience with damaged vehicles and from
examining Cansler's vehicle, and therefore the trial court had abused its

discretion.
175

In Haycraft v. State,
116

Haycraft appealed his conviction for child molestation

based in part on his claim that testimony by a state police investigator was
improperly admitted because the detective had not qualified as an expert witness,

and that the technique the detective discussed had not been established as a

reliable scientific theory under Rule 702. The detective had testified that child

molesters use a "grooming technique" to gradually introduce their intended

victims to sexually explicit materials and acts before actually engaging in sex

with them.
177

The court found that, as in Cansler, the witness had testified as a skilled
witness rather than an expert witness. Because the State had shown that the

171. Id. at 703 (quoting 13 ROBERTLOWELL MILLER, JR., INDIANA EVIDENCE § 701 . 105, at 321

(2ded. 1995)).

172. Id. (citing Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001)).

1 73

.

Id. (citing MILLER, supra note 1 7 1 , at 3 1 9-20).

174. Id. (quoting Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997) (quoting Ind.

R.Evid. 701)).

175. Mat 704.
1 76. 760 N.E.2d 203 (Ind. Ct. App. 200

1
).

177. Mat 210.



1 102 INDIANA LAW REVIEW [Vol. 36:1081

detective had significant training on the methodology ofsexual abuse and profile
of offenders, had investigated other sexual abuse cases and consulted sexual
abuse training manuals, had been a detective with the State Police since 1993,
had training beyond the common person in this field, and that his testimony was
based on his personal experience as an investigator, he was sufficiently qualified
to testify as a skilled witness. The court found that the trial court had not abused
its discretion in admitting the testimony.

178

B. Reliability ofScientific Principles Utilized by Expert Witnesses

In the Carter case, discussed supra, the appellant also argued that bite mark
evidence from a forensic odontologist should not have been admitted into

evidence. Carter claimed that the bite mark evidence should not have been
allowed because a proper foundation for this evidence's reliability was not laid
pursuant to Rule 702. The odontologist had testified that the bite mark on the
victim had been "more likely than not caused by the defendant."

179
Regarding

testimony by expert witnesses, the court reiterated that Rule 702 provides:

(a) If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training

or education, may testify thereto in the form ofan opinion or otherwise.
(b) Expert scientific testimony is admissible only ifthe court is satisfied

that the scientific principles upon which the expert testimony rests are

reliable.
180

Although the Indiana Supreme Court, in the 1977 Niehaus v. State case,
found "'no reason why [bite mark] evidence should be rejected as unreliable,"' 181

Carter argued that Niehaus did not control because it was decided before the
landmark Daubert v. Merrell Dow Pharmaceutical Inc. x%1 decision (which
construed Rule 702 of the Federal Rules of Evidence), before the Kuhmo Tire
Co. v. Carmichael

m
decision (which applied Daubert analysis to all types of

expert testimony) and before Indiana's adoption ofthe Indiana Rules ofEvidence

(including Rules 702 (a) and (b)).
184

Carter argued that state standards cannot drop below the minimum standards
guaranteed by the Federal Constitution, and that the Kuhmo Tire decision was
binding on Indiana state court practice. However, the court pointed out that the

U.S. Supreme Court had not held in Kuhmo Tire that Federal Rule of Evidence
702 was a constitutional requirement applicable to the states. The court therefore

178. Id. at 211.

179. Carter v. State, 766 N.E.2d 377, 380 (Ind. 2002).

180. Id. at 380 n.5 (quoting IND. R. EviD. 702).

181. Id at 380 (quoting Niehaus v. State, 359 N.E.2d 513, 516 (Ind. 1977)).

182. 509 U.S. 579(1993).

183. 526 U.S. 137(1999).

184. See Carter, 766 N.E.2d at 380-81.



2003] EVIDENCE 1103

held that Kuhmo Tire is not binding on Indiana practice, and continued the
analysis using Indiana authority.

185
Relying on Niehaus and McGrew v. State,™

a similar case involving hair comparison analysis, the court said that "the bite

mark method of identification in Niehaus '[was] simply a matter of comparison
of items of physical evidence to determine if they are reciprocal,"

5187
and

therefore the trial court had not abused its discretion in finding the bite mark
evidence sufficiently reliable.

Another case involving expert testimony,Armstrong v. Cerestar USA, Inc.,
m

examined Rule 702 issues. Armstrong involved determining responsibility for

injuries to an employee (Armstrong) of an independent contractor. The
employee had become light-headed and fallen off a sludge tanker, which was
owned by the independent contractor, but located on the premises ofthe company
which had hired the independent contractor. Armstrong argued that the trial

court had abused its discretion by striking the testimony of his expert witness.

The witness had testified that Armstrong had been exposed to a hazardous
concentration ofhydrogen sulfide gas, the exposure caused Armstrong to become
disoriented and fall, and that the substance would be considered hazardous
material under OSHA guidelines. 189

The court noted that "Indiana Evidence Rule 702 requires that an expert be
qualified as such by his knowledge, skill, experience, training, or education.

Additionally, 'an expert must have sufficient skill in the particular area ofexpert

testimony before the expert can offer opinions in that area,'"
190

and '" [m]oreover,

questions of medical causation of a particular injury are questions of science

necessarily dependent on the testimony of physicians and surgeons learned in

such matters.'"
191

The court further noted that trial courts must assess the scientific validity of

the reasoning or methodology underlying the testimony, whether such reasoning

or methodology can properly be applied to the facts in issue, and that such

knowledge admitted under Rule 702 is required to be more than unsupported
speculation or a subjective belief.

192

Although a review of the expert's credentials showed he had an MBA
degree, a master's degree in Health and Safety Studies and had years of

experience in various roles in Environmental and OSHA, the expert admitted that

185. Id. at 381.

186. 682N.E.2d 1289 (Ind. 1997).

187. Carter, 766 N.E.2d at 381 (quoting Niehaus v. State, 359N.E.2d 513, 516 (Ind. 1977);

cf. Jervis v. State, 679 N.E.2d 875, 881 (Ind. 1997) (observations of a witness with specialized

knowledge, and the physical evidence related to it, are not "scientific principles" governed by Rule

702(b)).

188. 775 N.E.2d 360 (Ind. Ct. App. 2002).

189. Id. at 365-66.

190. Id. at 366 (quoting Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct.

App. 2000)).

191. Id.

192. Id.



1 104 INDIANA LAW REVIEW [Vol. 36:1081

he did not conduct any of his own tests (he relied on tests done by others not
done on the day of the accident), he did not attempt to calculate the level of

hydrogen sulfide Armstrong may have been exposed to (because no reliable
method oftesting was known), and that while factors such as temperature, wind,
and humidity could affect such a test, he did not have any ofthis data for the day

of the accident. He also did not know Armstrong's weight or height, had never
examined the tanker, and had never been involved in a similar case.

193

The expert's opinions had concluded that Armstrong had been exposed to a
dangerous level of hydrogen sulfide, that he became ill from the exposure, and
that the material he was working with was hazardous under OSHA regulations.
However, the underlying data for these conclusions were tests done by others
long before the accident or done a day or more after the accident under different
weather conditions.

194

The court conceded that one could suspect that exposure to this gas at certain
levels could cause health problems, but noted that the expert was not a licensed
physician with the requisite experience and knowledge to testify as to the

proximate cause of Armstrong's fall being exposure to hydrogen sulfide.

Armstrong also failed to offer evidence excluding other possible causes for his

fall. Although the expert's credentials in other areas were impressive, the cause

of the fall was a question of medical causation, and such testimony must be
offered by a physician or surgeon with experience in the area.

195

Finally, the court said that although the expert could be found by a court to

be an expert on OSHA matters due to his current and previous employment, any
determination under OSHA rules would be irrelevant because an OSHA standard
cannot be used to expand an existing duty of care.

196

In its holding as to this subject, the court said that
u
[f]or all ofthese reasons,

we conclude that [the expert's] opinions were unreliable, no more than subjective
belief or unsupported speculation,"

197
and that the trial court did not abuse its

discretion in striking this testimony.
198

C. Expert Opinions Regarding Criminal Intent, Guilt or Innocence

In Moore v. State, 199 the petitioner argued on appeal that the trial court had
improperly excluded expert testimony regarding his awareness at the time ofthe

crime. The proffered evidence consisted of testimony by a psychiatrist that, in

his opinion, Moore had been unaware he was shooting at a police officer, and

193. Armstrong, 775 N.E.2d at 367-68.

194. Id.

1 95. Id. at 368 (citing Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App.

2000)).

196. Id.

197. Id. In other words, no matter how smart you are, you can't make stuff up.

198. See id.

199. 771N.E.2d46(Ind. 2002).



2003] EVIDENCE 1105

that Moore was surprised it turned out to be a police officer.
200

The court reiterated Rule 704(b), which states in part that "'[witnesses may
not testify to opinions concerning intent, guilt, or innocence in a criminal

case,"'
201

and concluded that the testimony "would have directly reflected on the

defendant's intent, guilt, or innocence, and thus was an inadmissible conclusion
regarding intent."

202 The court therefore found that the trial court had not abused
its discretion, and affirmed the sentence of death.

203

V. Hearsay

A. State ofMind

In Simmons v. State,
204 Simmons was accused of the murder of his former

fiance. A portion of the evidence against him at trial was statements by Officer
Powell and Elijah Bowman that the victim had been afraid of Simmons, and that
Simmons had previously threatened her with a gun. The trial court ruled that
Bowman could testify that the victim feared Simmons and that her intent was to
call offthe wedding, but that this evidence could not be used to prove Simmons'
prior bad act ofthreatening the victim with a gun. The trial court also ruled that
the police officer could testify that he responded to an earlier 911 call from the

victim, and that the victim, while in an excited state, had claimed that Simmons
had threatened her with a gun.

205

The court found that Bowman's testimony was admitted pursuant to Rule
803(3), which provides that "[a] statement of the declarant's then existing state

of mind, emotion, sensation, or physical condition (such as intent, plan, motive,

design, mental feeling, pain and bodily health)"
206

is not excluded by the hearsay

rule, even though the declarant is available as a witness.
207

However, the court
then examined whether or not this evidence met the requirement that only
relevant evidence is admissible.

208
This analysis turned on the rule that a victim 's

state ofmind is relevant when it has been put in issue by the defendant.209 In this
case, Simmons had not put the victim's state ofmind at issue. Simmons' defense
was that he was not at the scene of the crime. Because the victim's fear was not
relevant to any issue and Simmons did not put the victim's state ofmind at issue,
the trial court abused its discretion by allowing Bowman to testify as to

200. Id at 55.

201. Id (quoting Ind. R. EviD. 704(b)).

202. Id. (citing Jackson v. State, 728 N.E.2d 147, 153 (Ind. 2000)).

203. Id

204. 760 N.E.2d 1 154 (Ind. Ct. App. 2002).

205. See id. at 1158.

206. Id at 1 159 (citing Ind. R. Evid. 803(3)).

207. Id.

208. Id. at 1 160 (citing Ind. R. Evid. 402).

209. Id (citing Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1 997) (citing Taylor v. State, 659

N.E.2d 535, 543 (Ind. 1995))).



1 106 INDIANA LAW REVIEW [Vol. 36:1081

Simmons' threats and the victim's fear of him. However, this was found to be
a harmless error due to the strength of the remaining evidence.

210

B. Startling Event or Condition

The court next considered the testimony of Officer Powell. Officer Powell
testified that he had responded to a 9 1 1 call made by the victim, and that she had
informed him that Simmons had threatened her with a gun. However, the trial
court specifically noted that it was not admitting this evidence under Evidence
Rule 404(b). The trial court did admit this evidence under the excited utterance
exception to the hearsay rule.

211
Rule 803 provides that "the following are not

excluded from the hearsay rule, even though the declarant is unavailable as a
witness ... (2) [A] statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or
condition."

212

Although Officer Powell's testimony did fall under this exception, the court

found that the admission of this testimony was also erroneous, because its only
possible relevance was to show that Simmons was capable of committing the
crime charged. The evidence was inadmissable because it violated Rule 404(b),
which requires that "the evidence of other crimes, wrongs, or acts is relevant to

a matter at issue other than the defendant's propensity to commit the charged
act."

213
However, the court found that this was also harmless error.214

C. Business Records

In Greco v. KMA Auto Exchange, Inc.,215 Greco argued that the trial court
had improperly admitted the relevant security agreement because a sufficient

foundation had not been presented to establish that the document was made at or
near the time ofthe transaction pursuant to Rule 803(6).

216
Rule 803(6) excepts

certain business records from the hearsay rule ifthey meet the following criteria:

[A] memorandum . . . made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a

regularly conducted business activity, and if it was the regular practice
of that business activity, and if it was the regular practice of that
business activity to make the memorandum, ... all as shown by the
testimony or affidavit ofthe custodian or other qualified witness, unless

the source ofinformation or the method or circumstances ofpreparation

210. Id.

211. See id

212. IND. R. EVID. 803(2).

213. IND. R. Evid. 404(b).

214. Simmons, 760 N.E.2d at 1 161-62.

215. 765 N.E.2d 140 (Ind. Ct. App. 2002).

216. Id. at 145.



2003] EVIDENCE 1107

indicate a lack of trustworthiness.
217

KMA's general manager testified at trial that he had been involved in the sale
of the truck, he was the keeper of the records at KMA, and the document was
signed and kept as a part of KMA's regular business activity. Even though the
manager had not personally signed the document, his testimony that he had been
involved in the sale created a sufficient foundation for the trial court to conclude

that the security agreement was made at or near the time of the transaction.218

The court found that the trial court had not abused its discretion in admitting the
security agreement into evidence.

219

D. Public Records

In Baxter v. State,
220

a victim had been lured into Baxter's home while Baxter
was on in-home detention. The victim identified Baxter the following day, but
was unable to positively identify Baxter at Baxter's revocation hearing.221 The
State then offered into evidence the Probable Cause Affidavit that Officer

Wallace had prepared in association with the robbery case.
222 On appeal, Baxter

argued that the State's exhibit was unreliable hearsay and thus inadmissible.223

An important element of this case is that it is an appeal from a probation
revocation hearing. "'[Probationers are not entitled to the full array of

constitutional rights afforded defendants at trial,'"
224

and "in probation

revocation hearings, judges may consider any relevant evidence bearing some
substantial indicia of reliability. This includes reliable hearsay."

225
Even with

this lower standard for admissibility, the court found that the trial court erred in

admitting the report into evidence because it bore no substantial indicia of

reliability.
226

In a previous probation revocation hearing case, Pitman v. State
227

the court

had found similar evidence admissible, but the State had introduced certified

copies of the police report, the court docket, and charging information. That

information was found to be relevant and the certification of the documents by
the court provided substantial verification of their reliability.

228
However, in

Baxter, the document called a "Probable Cause Affidavit" was actually a "Law
Enforcement Incident Report," and it was uncertified, unverified and unsigned

217. Id. (quoting IND. R. EviD. 803(6)).

218. See id. (citing Williams v. Hittle, 629 N.E.2d 944, 948 (Ind. Ct. App. 1994)).

219. See id.

220. 774 N.E.2d 1037 (Ind. Ct. App. 2002).

221. See id. at 1038-39.

222. Id. at 1041.

223. Mat 1042.
224. Id. (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)).

225. Id.

226. Id. at 1044.

227. 749 N.E.2d 557 (Ind. Ct. App. 2001).

228. Id.



1 108 INDIANA LAW REVIEW [Vol. 36:1081

by the arresting officer or the author of the report. The court disagreed with the
State's contention that the report contained substantial indicia of reliability

because it was prepared by a law enforcement officer during the course of his
official investigation and corroborated the victim's testimony.

229

In deciding that the document was not reliable, the court observed that
"investigative reports by police and other law enforcement personnel, except
when offered by an accused in a criminal case, do not fall within the public
records exception to the hearsay rule, an indication that such reports are not

considered inherently reliable."
230 The court stated that the document also did

not corroborate the victim's testimony.
231

In Garling v. Indiana Department of Natural Resources™
2

Garling

questioned the admission of a public record under Rule 803(8), claiming that it

lacked the required trustworthiness. Rule 803(8) provides in part that public

records are admissible "unless the sources of information or other circumstances

indicate a lack of trustworthiness, records, reports, statements, or data

compilations in any form, ofa public office or agency, setting forth its regularly

conducted and recorded activities . . . ."
233

Garling claimed that the evidence admitted lacked the required level of

trustworthiness because the signatories ofthe document had also performed the

notarization ofthe document. The court found it problematic that the notary was
also a signatory in violation of Indiana statutory law, which provides that a
"notary public shall not . . . acknowledge any instrument in which the notary's

name appears as a party to the transaction."234 However, the court ruled that a
determination ofthis document's trustworthiness was unnecessary because same
or similar evidence had been submitted without objection.

235

E. Excited Utterance

In Marcum v. State,236 Marcum appealed his conviction for domestic battery,
alleging that hearsay evidence was improperly introduced against him at trial.
When the State called Marcum 's wife to testify against him, she recanted her
earlier written allegations against Marcum. The trial court allowed introduction
of the written statement, finding the statement to be either an excited utterance

and/or a recorded recollection.
237

229. Mat 1043.
230. Id. (citing IND. R. EviD. 803(8); cf. Hernandez v. State, 716 N.E.2d 601, 602-03 (Ind. Ct.

App. 1999)).

231. Id.

232. 756 N.E.2d 1029 (Ind. Ct. App. 2001).

233. Ind. R. Evid. 803(8).

234. Garling, 756 N.E.2d at 1033 (quoting IND. CODE § 33-16-2-2 (1998)).

235. Id. (citing R.R. Donnelley & Sons, Inc. v. North Texas Steel, Inc., 752 N.E.2d 1 12, 127
(Ind. Ct. App. 2001)).

236. 772 N.E.2d 998 (Ind. Ct. App. 2002).

237. See id. at 1000.



2003] EVIDENCE 1109

In order to consider whether the evidence was indeed an excited utterance,
the court looked to Rule 803(2), which provides that in order for hearsay

evidence to be admitted as an excited utterance, three elements must be found:
"(

1 ) a startling event has occurred; (2) a statement was made by a declarant while
under the stress of excitement caused by the event; and (3) the statement relates

to the event."
238

Because the statement in this case had been given two and a half

days after the startling event, and the declarant had since gone to work, gone out

with friends, and undertaken various other activities in the intervening days, the

statement could not be admitted as an excited utterance. She had been capable

of "thoughtful reflection and fabrication at the time she gave the statement."
239

The court turned to the issue of recorded recollection. This exception under
Rule 803(5) was quickly dismissed as it provides that it is to be used in situations
where the declarant has insufficient recollection ofthe matter at trial. 240 Because
Marcum's wife had testified at trial that she did have a complete and accurate
recollection of the relevant events, this exception could not apply. The State's
evidentiary focus was on this statement, and therefore the court found the
admission of this evidence to be reversible error.

241

A second case involving excited utterance, Cox v. State,242 involved
statements made by an alleged domestic battery victim to a Deputy Sheriff
shortly after the battery occurred. Cox argued on appeal that these statements
should not have been introduced at trial by the deputy because the victim did not

testify and the testimony did not fit into any hearsay exception.
243

The court began by restating the text ofrule 803(2), which provides that "the
following are not excluded from the hearsay rule, even though the declarant is

available as a witness .... (2) A statement relating to a startling event or
condition made while the declarant was under the stress ofexcitement caused by
the event or condition."

244
The court stated that the portion of Rule 803(2) that

allows the excited utterance exception to be used "even though the declarant is

available as a witness," means that "Rule 803 lists exceptions which are not

hearsay regardless ofwhether the declarant is available."
245

Therefore, the court

238. Id. at 1001 (citing Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000); Ind.R.Evid. 803(2)).

239. Id. at 1002. The court cited previous cases which held that the key to the excited

utterance calculation is whether the declarant was still under the stress of the event and therefore

unlikely to make deliberate falsifications and be incapable ofthoughtful reflection. See Jenkins v.

State, 725 N.E.2d 66, 68 (Ind. 2000); Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).

240. Rule 803(5) provides a hearsay objection for "a memorandum or record concerning a

matter about which a witness once had knowledge but now has insufficient recollection to enable

the witness to testify fully and accurately, shown to have been made or adopted by the witness when

the matter was fresh in the witness's memory and to reflect that knowledge correctly " Ind. R.

Evid. 803(5).

241. Marcum, 772 N.E.2d at 1002.

242. 774 N.E.2d 1025 (Ind. Ct. App. 2002).

243. Id. at 1026.

244. Id. at 1027 (quoting Ind. R. Evid. 803(2)).

245. Id.



1110 INDIANA LAW REVIEW [Vol. 36:1081

found that this testimony fit squarely into the excited utterance exception.246

F. Prior Statement By a Witness

In Flake v. State™
1
Flake argued on appeal that the trial court erred when it

allowed the State to rehabilitate its witness after impeachment on cross-
examination. The facts in question were when the witness had informed Flake
of her age, and how he had touched her. On cross-examination, the defense had
elicited testimony from the witness favorable to the defendant. The trial court
then allowed the State to rehabilitate the witness in both cases by introducing

prior statements given in depositions and to the police that contained prior

consistent statements.
248

The court conceded that Rule 801(d)(1) provides that where "the declarant
testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with the declarant's testimony

and was given under oath subject to the penalty of perjury at a trial, hearing or
other proceeding, or in a deposition; or (B) consistent with the declarant's

testimony, offered to rebut an express or implied charge against the declarant of

recent fabrication or improper influence or motive, and made before the motive
to fabricate arose . . . ,"

249
However, the court noted that "'because Rule 801(d)

speaks only to the admission of prior consistent statements for their substance,

we must look to pre-rule cases for the relevant common law on the rehabilitative
use of these statements,'"

250
and that "[m]any pre-rules cases stated that prior

consistent statements were admissible to rehabilitate witnesses."
251

Because the was no recent fabrication, and the facts were similar to pre-
evidentiary rules cases allowing such testimony for rehabilitative purposes, the

court found that the trial court had not abused its discretion in allowing the

rehabilitation of the witness, and that Rule 801(d)(1) need not have been

applied.
252

G. Statement ofthe Declarant 's Then Existing State ofMind

In Mull v. State,253 Mull contended that the trial court had erred in allowing

penalty phase testimony by the victim's roommate and one of the victim's
friends, who testified that the victim had believed the defendant to be weird,
strange, and that he would watch her and talk to her and that the victim didn't

want to talk to him. The trial court admitted this testimony under the exception
to the hearsay rule found at Rule 803(3), which provides that a "statement ofthe

246. Id.

247. 767 N.E.2d 1004 (Ind. Ct. App. 2002).

248. See id. at 1009-10.

249. Id. at 1009 (quoting IND. R. EviD. 801(d)(1)).

250. Id. (quoting Moreland v. State, 701 N.E.2d 288, 292 (Ind. Ct. App. 1998)).

251. Id.

252. MatlOll.

253. 770 N.E.2d 308 (Ind. 2002).



2003] EVIDENCE 1111

declarant's then existing state ofmind, emotion, sensation or physical condition

(such as intent, plan, motive, design, mental feeling, pain and bodily

health) . . . ."
254

is excepted from the hearsay rule.

Mull argued that these statements were irrelevant because the victim's state

of mind was irrelevant, that the victim's state of mind had no relevance on the
charged aggravated circumstances (that the defendant had intentionally killed in

the course of burglary and attempted rape), and that Mull had not placed the

victim's state of mind at issue. However, the court agreed with the trial court
that the victim's statements were not offered to prove that he was strange or
weird, or to prove that he watched her, but rather to show that the victim had not
consented to Mull's entrance to her apartment or to consensual sex with him, and

therefore the testimony was properly admitted. The court further found that Mull
had placed the victim's state of mind at issue by cross-examining a detective as
to the claim that the victim had admitted Mull to her apartment.

255

H. Statement by a Co-Conspirator

In Lander v. State,
256

Lander challenged his convictions in part based on a

claim that the State had inappropriately been allowed to question a co-conspirator

regarding the co-conspirator's conversations with another regarding a robbery

plan, and the co-conspirator's relaying of that plan to his girlfriend.
257

The court noted that a co-conspirator's statement is not hearsay if the
statement is given "'by a co-conspirator of a party during the course and in

furtherance of the conspiracy.'"
258 The court also noted that the State is also

required to prove that there is independent evidence of the conspiracy.
259

"This

means that the State must show that (1) existence of a conspiracy between the
declarant and the party against whom the statement is offered and (2) the
statement was made in the course and in furtherance of this conspiracy."260

Because the State did not offer any first-hand independent evidence that a

conspiracy existed between the defendant and the parties involved in the

statements, the State failed to meet the minimum requirements of Rule
801(d)(2)(E) with respect to this testimony. However, the court found the

improper admission of the statements to be harmless error.
261

254. Ind. R. EviD. 803(3).

255. See Mull, 770N.E.2d at 311.

256. 762 N.E2d 1208 (Ind. 2002).

257. See id. at 1213.

258. Id. (quoting Ind. R. EviD. 801(d)(2)(E)).

259. Id. (citing Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997)).

260. Id. (citing Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999)); see also Norton v. State,

772 N.E.2d 1028 (Ind. Ct. App. 2002) (discussing allowable uses of the doctrine of completeness

in regards to statements by a co-conspirator), trans, denied, Norton v. State, 2002 Ind. LEXIS 833

(Ind. 2002).

261. Lander, 762 N.E.2d at 1213-14; see also Francis v. State, 758 N.E.2d 528 (Ind. 2001)

(observing that "consistent with Federal Rule ofEvidence 801(d)(2)(E), our own rule 'applies not



1112 INDIANA LAW REVIEW [Vol. 36:1081

VI. Authentication of Documents

A. Admission ofPictorial Depictions

In Bone v. State,
262 Bone challenged the admission of pictorial depictions

(depictions of nude underage children, allegedly recovered from Bone's
computer). Bone contended it was error to admit the depictions without
authentication, which under Rule 901(a) is a showing that the exhibits depicted
actual children or what appeared to be actual children, as alleged in the
information. The State contended that the authentication requirement was
satisfied by demonstrating that the images contained in the exhibits were

recovered from Bone's computer.
263

Rule 901(a) provides that "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent
claims."

264 The court also stated that "showing of authenticity is 'a finding that
it is what its sponsor purports it to be.'"

265 The court determined that the
testimony before the trial court had been sufficient to establish the authenticity

of the exhibits as depicting the information contained in Bone's computer.
266

VII. Evidence Outside the Rules

A. Opening the Door

In Wales v. State
261

Wales was granted a petition for rehearing of Wales v.
State

26%
in which the court had determined that the fact that the trial court had

failed to conduct the balancing test ofRule 609(b) was moot, because Wales had
opened the door to this evidence by testifying about it in his own defense.269 On
rehearing, the court considered Wales' alternate argument, that the trial court had

failed to conduct the required balancing test of Rule 403, and that a defendant

cannot open the door to evidence when Rule 403 is the basis of the objection.
The court noted its previous decision regarding Rule 609(b) evidence, and
reached the same result regarding the Rule 403 test: "Inadmissible evidence may
become admissible where the defendant 'opens the door' to questioning on that

only to conspiracies but also to joint ventures, and that a charge of criminal conspiracy is not

required to invoke the evidentiary rule.'" Id. at 533 n.5 (quoting United States v. Kelley, 864 F.2d

569, 573 (7th Cir. 1989))).

262. 771 N.E.2d 710 (Ind. Ct. App. 2002).

263. See id. at 716.

264. IND.R.EVID. 901(a).

265. Bone, 11\ N.E.2d at 716 (quoting MILLER, supra note 171, § 901.101).

266. Mat 716-17.
267. 768 N.E.2d 513 (Ind. Ct. App. 2002).

268. 774 N.E.2d 1 16 (Ind. Ct. App. 2002).

269. See id.



2003] EVIDENCE 1113

evidence."
270

B. Flight as Evidence ofGuilt

In Anderson v. State,
211

Anderson appealed his convictions in part based on

a claim that the trial court erred when it allowed the State to present evidence
that law enforcement officials found the defendant in Birmingham, Alabama
about one month after the victim was shot. Among his arguments, Anderson
claimed that there was no evidence to demonstrate that his flight was immediate,
and that there was no evidence to explain why he was in Alabama. He also tied
these claims to Rule 403 by stating that the probative value of such evidence was
outweighed by its prejudicial effect.

272

While the court noted that "[a] jury may consider evidence of flight of the
accused immediately after the commission of a crime as evidence of his

consciousness of guilt,"
273

it noted that Anderson had fled the scene ofthe crime,

could not be found at any of his known addresses in the days following the
commission of the crime, and that Anderson had no known previous addresses
in Alabama.

274

As to Anderson's claim that no evidence had been offered as to why he
would be in Alabama, the court held that "the jury in this case reasonably could
have inferred that he had fled the scene of the crime and his community in an
effort to avoid prosecution, which was sufficient to allow this evidence to be

introduced."
275

C. Voice Identification as Direct Evidence

In Jackson v. State
216

Jackson argued that the trial court had improperly

denied his request for a jury instruction regarding a finding of guilt when all of
the evidence was circumstantial. The court found that this instruction was
inappropriate. Even though no prior case had determined whether or not voice

identification evidence is direct evidence, the court held that

voice identification evidence that places the defendant at the crime scene

270. Wales, 11A N.E.2d at 1 1 7 (citing Jackson v. State, 728 N.E.2d 1 47, 1 52 (Ind. 2000)). In

fact, the court pointed out that Rule 403 is weighted toward admission of evidence, whereas Rule

609(b) is weighted against the admission of evidence. Thus, having already ruled on admissibility

of evidence in this circumstance under Rule 609(b), it was a simple matter to rule that similarly-

situated evidence is admissible under the more permissive Rule 403 analysis.

27 1

.

774 N.E.2d 906 (Ind. Ct. App. 2002).

272. See id. at 910-11.

273. Id. at 910 (quoting Seeley v. State, 547 N.E.2d 1089, 1092 (Ind. 1989)).

274. See id. at 911.

275. Id. (citing Bruce v. State, 375 N.E.2d 1042, 1078 (Ind. 1978) for the proposition that

where reasonable jurors could place either oftwo differing interpretations on a set offacts, and one

of those interpretations is material to the case, evidence of those facts is admissible).

276. 758 N.E.2d 1030 (Ind. Ct. App. 2001).



1114 INDIANA LAW REVIEW [Vol. 36:1081

at the precise time and place of the crime's commission is direct

evidence. It is an identification ofthe defendant as the perpetrator ofthe

crime based on the use ofthe witness' personal senses, even ifthe sense

involved is hearing, not sight.
277

Conclusion

While the decisions described herein answer many questions regarding
interpretation of the Indiana Rules, many more subjects remain open to
interpretation. The cases discussed above represent only a very small fraction of
the cases decided in a one-year period in the courts of Indiana.

The Rules have not yet reached their ten-year anniversary, and much remains
open to interpretation. Because the Rules are still young in terms oftheirjudicial
interpretation, they are susceptible to rapid change due to court decision,

statutory gap-filling and the advent of new technology (such as the application
of the completeness doctrine to videocassette evidence).

As noted two years ago in this space, academians and practitioners should
continue to keep a close watch on developments in interpretations of the Rules.

277. Mat 1036.