The opinion
Pursuant to Ind. Appellate Rule 65(D), this
Jun 13 2013, 6:18 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JANE H. CONLEY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRANDAN BELLAMY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1210-CR-866
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Judge
Amy J. Barbar, Magistrate
Cause No. 49G02-1207-FC-51526
June 13, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this case, the victim of a domestic violence incident failed to appear at trial and
testify against her assailant, the appellant-defendant, Brandan Bellamy, who was charged
with Battery,1 a class C felony. The trial court admitted a statement into evidence from
the victim to a police officer that Bellamy had hit her as an excited utterance.
Under these circumstances, we conclude that the statement did not qualify as an
excited utterance under the exception to the hearsay rule. Therefore, the trial court erred
in admitting the statement. However, there was substantial independent evidence of
Bellamy’s guilt through an eyewitness’s testimony. Therefore, the trial court’s erroneous
admission of the statement into evidence was harmless error, and we decline to set aside
Bellamy’s conviction.
FACTS
Sometime during the evening of July 27, 2012, Janet Miller arrived at a parking lot
near the Masterpiece Club in Indianapolis. As Miller was exiting her vehicle, she heard
“a lot of noise like somebody arguing.” Tr. p. 17. Miller could tell that the argument was
“very heated” and a man and a woman were cursing at each other. Id. When Miller
initially encountered the argument, the man, who was subsequently identified as Bellamy,
had not touched the woman. However, Miller eventually saw Bellamy punch the woman,
who was later identified as Princess Hamler, and he “just knocked her out.” Id. at 18-19.
The woman fell to the ground, and Miller approached Hamler. Miller noticed that
Hamler was “out cold” and not “moving at all.” Id. at 20, 22. Bellamy told Miller that
1
Ind. Code § 35-42-2-1(a)(3).
2
“it’s . . . none of [her] business and [told her] to get away.” Id. at 19, 24. Miller was
fearful that Bellamy might attack her, but a third man approached and Bellamy started to
walk away. Miller noticed that Hamler “was [still] not responsive, . . . and blood was
gushing all out of her nose.” Id. at 25. Miller’s cousin, who was at the scene, called the
police and Hamler was eventually able to stand. When the police arrived, Miller walked
into the club.
Indianapolis Metropolitan Police Department (IMPD) Officer Karen Pennington
arrived within ten minutes in response to the dispatch. Officer Pennington saw two males
and a female walking away from her. Officer Pennington heard Bellamy, the taller male,
yelling, as Officer Michael Harmon arrived from the other direction. As a result, the two
males and the female stopped before the shorter male continued to walk away.
Officer Pennington noticed that Hamler’s nose was bleeding and that blood was
covering her shirt. Hamler’s eyes were also bloodshot. When Hamler identified herself
to Officer Pennington, she was wiping her face with her hands. Hamler appeared to be
disoriented and confused.
After standing with the police officers for about twenty minutes, Hamler turned to
Bellamy and said three times to Bellamy, “you hit me.” Id. at 66. Hamler made those
statements without any questioning from the police officers, had not provided any
statements to them, and seemed lucid. Hamler also indicated that she did not want to talk
to the police.
3
Bellamy had blood on his pants and hands and the police officers noticed a “strong
odor of alcoholic beverage on his breath and person. Bellamy also had blood-shot watery
eyes [and] his speech was slurred.” Id. at 49. Bellamy refused to cooperate with the
police and was being “very loud.” Id. As a result, Bellamy was arrested for disorderly
conduct after he continued to yell at Hamler and after the police told him to be quiet on
several occasions. Id. at 63-64. The police officers then called for paramedics to
examine Bellamy and Hamler, but neither requested treatment.
Bellamy was charged with battery, a class C felony, and waived his right to a jury
trial. A bench trial commenced on September 7, 2012, but Hamler did not appear.
During trial, the following colloquy occurred between the deputy prosecutor and Officer
Harmon on direct examination:
Q. Uhm, did you hear Ms. Hamler make any comments directed
towards Mr. Bellamy?
A. Yes, towards the end of the—
MS. BAUDER: I’m going to object at this point as to hearsay.
Again, it’s hearsay and it would be a violation of his right to
confront this witness as she won’t be here under the Sixth
Amendment, under the United States Constitutions, Article I,
Section 13, under the Indiana Constitution.
THE COURT: Response.
MS. WILSON: Yes, Judge. In regard to hearsay exception, I
believe it falls under 803.2, as an excited utterance. . . .
THE COURT: Would you like to say anything in that—to their
argument.
4
MS. BAUDER: My only other argument is even if it is and does not
meet uhm, the requirements under the hearsay exception, I’ll never
be able to confront her about that and he would lose all of his
constitutional rights as I’ve stated twice now. Uhm because I will
never be able to confront her.
THE COURT: Well, the Supreme [C]ourt’s addressed that matter.
And excited utterances are still permitted under the exception to the
hearsay rule, so the Court will overrule the objection.
Q. Officer Harmon, what did you hear Ms. Hamler say towards the
defendant?
A. She stated three times, “You hit me.”
Q. When she was indicating that, was it in a conversation tone like
we’re speaking?
A. No, it was, uhm, an angry tone.
Q. Okay. Louder or softer?
A. Louder.
Tr. p. 65-66.
Bellamy was found guilty as charged and was subsequently sentenced to four
years of incarceration for class C felony battery.2 Bellamy now appeals.
DISCUSSION AND DECISION
Bellamy contends that his conviction must be reversed because the trial court
improperly admitted hearsay evidence and therefore violated his right to confront and
cross-examine Hamler. More particularly, Bellamy argues that the trial court’s admission
2
Bellamy also pleaded guilty to a habitual offender charge. The trial court enhanced the four-year-
sentence on the battery count by four years, for an aggregate term of eight years. Tr. p. 109.
5
of Hamler’s statement, “you hit me,” to Officer Harmon, did not qualify as an excited
utterance exception to the hearsay rule. Appellant’s Br. p. 6.
In resolving this issue, we initially observe that the decision to admit or exclude
evidence is within the trial court’s sound discretion. Johnson v. State, 831 N.E.2d 163,
168-69 (Ind. Ct. App. 2005). We will reverse only upon a showing of an abuse of
discretion. Southern v. State, 878 N.E.2d 315, 321 (Ind. Ct. App. 2007). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before the court. Id. We will reverse only when a manifest
abuse of discretion denies the defendant a fair trial. Norton v. State, 785 N.E.2d 625, 629
Ind. We do not reweigh the evidence and will consider conflicting evidence in a light
most favorable to the trial court’s ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct.
App. 2007).
Hearsay is an out-of-court statement that is offered to prove the truth of the matter
asserted and is inadmissible unless it falls under a particular exception. Ind. Evid. Rule
801; Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000). One such exception is an “excited
utterance,” which is defined under Indiana Evidence Rule 803(2) as “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.” To qualify as an excited utterance, three
elements must exist: 1) a startling event or condition has occurred; 2) the declarant made
a statement while under the stress or excitement caused by the event or condition; and 3)
the statement was related to the event or condition. Young v. State, 980 N.E.2d 412, 421
6
(Ind. Ct. App. 2012), trans. denied. The heart of the inquiry is whether the declarant was
incapable of thoughtful reflection. Id.
In this case, Bellamy’s sole challenge is whether Hamler’s statement qualified as
an excited utterance. In support of the contention that Hamler’s comments should not
have been admitted as an excited utterance, Bellamy directs us to our Supreme Court’s
opinion in Hammon v. State, 829 N.E.2d 444 (Ind. 2005), which was analyzed as a
companion case and actually reversed in Davis v. Washington, 547 U.S. 814 (2006).
In Hammon, the evidence demonstrated that police officers responded to a report
that involved a domestic disturbance at the Hammons’s residence. A police officer
interviewed the wife and obligated her to swear to a statement accusing her husband of
domestic violence. Hammon’s wife did not appear at his bench trial, but her affidavit and
testimony from the police officer who questioned her were admitted over the defendant’s
objection.
The State claimed that Wife’s statement fell under the excited utterance exception
to the hearsay rule. Our Supreme Court agreed, and concluded that while the affidavit
was testimonial and, therefore, wrongly admitted, it was harmless beyond a reasonable
doubt, primarily because the trial was to the bench.
The United States Supreme Court went on to reverse Hammon’s conviction
pursuant to his Sixth Amendment rights. In so doing, the Supreme Court determined that
the admission of Hammon’s wife’s statement was not harmless because defendant’s
conviction was reversed, and it was observed that “in cases like this one, where wife’s
7
statements were neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation, the fact that they were given at an alleged
crime scene . . . is immaterial.” Davis, 547 U.S. at 832.
Notwithstanding the above rationale, the State maintains that Hamler’s statement
qualified as an excited utterance and did not violate Bellamy’s right to confront and
cross-examine Hamler because she appeared disoriented and confused and did not
become lucid until the investigation was nearly over. The State notes that Hamler’s
statements were not responsive to any police questioning, and she was not cooperative
with the police officers. Therefore, the State argues that Hamler’s statements were
properly admitted as an excited utterance.
The evidence in this case demonstrated that more than thirty minutes had elapsed
since the incident had occurred. Officer Pennington arrived at the scene shortly after it
occurred and she had to be directed to the area where the argument ensued. Officer
Pennington first noticed Hamler and Bellamy as they were walking away from the area.
Both Bellamy and Hamler told Officer Pennington that they did not need any assistance.
Although Hamler spoke with the police officers, she did so only when one of them
approached her. The paramedics were dispatched to the scene and did not arrive for
nearly thirty minutes. They were not asked to treat either Hamler or Belamy, and it was
during this time that Hamler made the statement to Officer Harmon that Bellamy had hit
her. Bellamy was already in handcuffs, and Officer Harmon described Hamler as
“lucid.” Tr. p. 64-65.
8
In our view, the evidence fails to demonstrate that Hamler was “incapable of
thoughtful reflection” as the excited utterance exception requires. Young v. State, 980
N.E.2d 412, 420 (Ind. Ct. App. 2012). Indeed, after the incident, Hamler got up, walked
away, and refused to speak with the police officers. Hamler was in no danger from
Bellamy and the officers observed her walking away from the scene with him. That said,
we conclude that the trial court erred in allowing Hamler’s statement into evidence and
accepting her statements as an excited utterance because it was made more than one-half
hour after the event and Hamler had been described as lucid.
However, our inquiry does not stop here. Bellamy is not entitled to a reversal of
his conviction because the trial court’s admission of Hamler’s statements into evidence
was harmless error. An error is harmless if there is substantial independent evidence of
guilt satisfying the reviewing court that there is no substantial likelihood that the
challenged evidence contributed to the conviction.” Turner v. State, 953 N.E.2d 1039,
1059 (Ind. 2011).
Here, Hamler’s statements were only cumulative of Miller’s testimony. As
discussed above, Miller testified that she saw a man whom she later identified as
Bellamy, punch Hamler. Tr. p. 19-20, 22. The punch left Hamler unconscious on the
ground for nearly ten minutes. Id. at 20. The punch caused blood to “gush[]” from her
nose. Id.
In our view, the State presented independent sufficient evidence to establish that
Bellamy had struck Hamler. Indeed, Bellamy did not deny hitting Hamler. Id. at 76-77.
9
For these reasons, we conclude that any error in admitting Hamler’s statements into
evidence was harmless. Thus, we decline to set aside Bellamy’s conviction.
The judgment of the trial court is affirmed.
MAY, J., and MATHIAS, J., concur.
10