Opinion

Cody J. Chambless v. State of Indiana

119 N.E.3d 182

Court: Indiana Court of Appeals
Filed: Feb 12, 2019
Status: Published
Author: Kirsch
On the bench: Kirsch
Cited by: 10 cases
Authority: More cited than 65.6%

finding victim’s statements in 911 call “were unrehearsed and made while still under the stress” from attack and thus were admissible as excited utterances where victim called 911 “a short time after she was attacked, not giving her time for thoughtful reflection,” and “had trouble breathing” during call

How later courts described this case

finding victim’s statements in 911 call “were unrehearsed and made while still under the stress” from attack and thus were admissible as excited utterances where victim called 911 “a short time after she was attacked, not giving her time for thoughtful reflection,” and “had trouble breathing” during call
"The longer the time between an event and an utterance, the greater the likelihood that the statement is a narrative of past events instead of an excited utterance."
“[I]t is the jury’s role to weigh conflicting evidence.”

Written by the judges who cited it.

The opinion

FILED

Feb 12 2019, 8:37 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Nicholas F. Wallace Curtis T. Hill, Jr.

Deputy Public Defender Attorney General of Indiana

Leonard, Hammond, Thoma & Terrill J.T. Whitehead

Fort Wayne, Indiana Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Cody J. Chambless, February 12, 2019

Appellant-Defendant, Court of Appeals Case No.

18A-CR-1384

v. Appeal from the

Allen Superior Court

State of Indiana, The Honorable

Appellee-Plaintiff. John F. Surbeck, Jr., Judge

Trial Court Cause No.

02D06-1801-F5-1

Kirsch, Judge.

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 1 of 19

[1] Cody J. Chambless (“Chambless”) appeals his convictions for Level 5 felony

domestic battery,1 Level 6 felony domestic battery,2 and Level 6 felony

strangulation3 arising from the assault of his girlfriend (“K.B.”) He raises three

evidentiary issues and one sufficiency of evidence issue, which we restate as

follows:

I. Regarding admission of evidence, whether the trial court: (A)

committed fundamental error in admitting K.B.’s 911 phone call

into evidence; (B) abused its discretion in admitting K.B.’s

statement to the medic who treated her that Chambless was her

attacker; and (C) abused its discretion in admitting the jail phone

conversation between Chambless and K.B. in which K.B.

accused Chambless of choking her; and

II. Whether sufficient evidence supports Chambless’s

convictions.

We affirm.

Facts and Procedural History

[2] Chambless was K.B.’s boyfriend. Tr. Vol. 1 at 24. On Christmas day of 2017,

K.B. was living with Chambless in an Allen County apartment. Id. at 24-25.

K.B. was working ninety-six hours per pay period as a cook at the Pilot truck

stop while Chambless was unemployed. Id. at 25. K.B. worked Christmas Eve

See Ind. Code § 35-42-2-1.3(c).

See Ind. Code § 35-42-2-1.3(b).

See Ind. Code § 35-42-2-9.

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 2 of 19

from 11:00 p.m. to 7:00 a.m. Christmas morning. Id. at 26. She arrived home

at about 7:25 or 7:30 a.m.; Chambless was at home watching television and

drinking. Id. K.B. put on her pajamas and rested for a few hours, and when

she awoke, Chambless was still drinking. Id.

[3] K.B. was tired of Chambless’s drinking, which she described as an everyday

occurrence: “every time I come home he’s drinking, every time I wake up

before work, he’s drinking . . . . So he was drinking and that really upset me.”

Id. at 26-27. They argued and fought; K.B. threatened to leave Chambless,

warning him that it was “his drinking or me.” Id. at 27. During the fight,

Chambless punched holes in the wall and broke a door on an upstairs

bathroom. Id. at 27-28; State’s Ex. 6, 8. The fight occurred around 10:10 a.m.

Id. at 52.

[4] K.B. ran from the apartment to a BP gas station two or three blocks away. Tr.

Vol. 1 at 28-29, 48. Even though it was cold outside, K.B., in her haste, did not

don a winter coat or boots, instead wearing only a shirt, pants, and regular

shoes. Id. 28-29, 53. When she arrived at the BP station, K.B. told the

employees about the fight, and they called 911 for her. Id. at 28-29. During the

call, K.B. told the police that Chambless had beaten her. Id. at 28. She also

said that she was having trouble breathing. Id. at 30. Her breathing sounded

labored and wheezy. See State’s Ex. 1.

[5] Medics, including Marah Bradbury (“Medic Bradbury”), responded to the 911

call and tended to K.B. at the gas station by checking her blood pressure and

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 3 of 19

pulse. Tr. Vol. 1 at 30, 47. K.B. told Medic Bradbury that Chambless had

assaulted her. Id. at 30, 48. Offering more details, K.B. said that Chambless

slapped her in the face and strangled her with his hands, making her feel like

she would faint. Id. at 48. K.B. also told Medic Bradbury that she escaped

Chambless “just in time” and ran to the gas station to call for help. Id. Medic

Bradbury observed abrasions to each side of K.B.’s jaw and a bruise on the

bottom of K.B.’s neck. Id. at 47.

[6] Police officers, including Officer Robert Geiger of the Fort Wayne Police

Department (“Officer Geiger”), also responded to the 911 call, arriving at the

BP station around 10:30 a.m. Id. at 36, 51-52. K.B. was still upset and crying

when she spoke with Officer Geiger; she told him that she was still afraid. Id. at

37, 51. K.B. told the officers that Chambless had strangled her. Id. at 36.

Officer Geiger observed redness around K.B.’s neck. Id. at 53. Later that day,

K.B. spoke to Detective Michael Epps of the Fort Wayne Police Department

(“Detective Epps”), and likewise told him that Chambless had choked her. Id.

at 40, 57. Detective Epps observed a scratch on K.B.’s neck and swelling on her

left cheek. Id. at 57.

[7] The State charged Chambless with three counts: Count I, Level 5 felony

domestic battery with a prior domestic battery conviction where K.B. was the

victim; Count II, Level 6 felony domestic battery with a prior domestic battery

conviction where someone other than K.B. was the victim; and Count III,

Level 6 felony strangulation. Appellant’s App. Vol. II at 14-18.

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 4 of 19

[8] Chambless was initially incarcerated at the Allen County Jail. Upon placement

there, inmates such as Chambless receive a packet that tells them that the jail

monitors inmate phone calls. Tr. Vol. 1 at 61-62. The same information is

posted in every cell block. Id. at 62. When an inmate uses a jail phone, an

audio recording reminds the inmate that the phone call is monitored. Id. On

December 26, 2017, while Chambless was in jail, he and K.B. spoke on the

phone about their fight from the previous night. Id. at 65, 70; State’s Ex. 11. In

their conversation, K.B. told Chambless: “you strangled the fuck” out of me.

Tr. Vol. 1 at 70; State’s Ex. 11.

[9] At Chambless’s jury trial, the State tendered, and the trial court admitted, an

audio recording of K.B.’s 911 call without objection from Chambless. Tr. Vol. 1

at 22-23. The trial court also admitted, this time over Chambless’s hearsay

objection, the audio recording of Chambless’s phone call from jail to K.B. Id.

at 63-65; 70; State’s Ex. 11. The State tendered Exhibit 11 through Corporal Jeff

Kroemer of the Allen County Sheriff’s Department, who operated the phone

system at the Allen County Jail, and who listened to the conversation between

Chambless and K.B. The exhibit was published to the jury. Tr. Vol. 1 at 66.

[10] The State also elicited testimony, over Chambless’s objection, from Medic

Bradbury, who recounted K.B.’s statements to Medic Bradbury that Chambless

had assaulted K.B. by striking her and choking her and that she had escaped

“just in time” to run to the gas station for help. Id. at 30, 40-41, 46-49.

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 5 of 19

[11] When K.B. testified, she recanted her allegation that Chambless had assaulted

her. She said Chambless had not choked her but that she had choked herself,

explaining:

[K.B.]: Because I was just tired of everything, I’m tired of the

stress and going through everything. I was to the point where I

was just ready to end my life. I lost my daughter six (6) years

ago, towards, four (4) days before Christmas, and living with

that, it hurts. I’ve never gotten help for it. I don’t know if I ever

will.

....

[Defense counsel]: Okay. We just heard on the 911 call, as [the

deputy prosecutor] said, that you told them my boyfriend

assaulted me. Why would you tell them that?

[K.B.]: Cause I was just tired of everything, the stress, everything

going on at home, him drinking, him not working. I’m the only

one paying the bills. Yeah, he goes on Craigslist and sells his

stuff, trade his stuff to help out, yeah. It helps out with the food

and everything, and cigarettes, but it’s – the bigger picture I’m

looking at . . . bills, somewhere for us to live, and a roof over our

head, and it’s just all the stress and everything. I just couldn’t

take it no more, and I didn’t mean to do that for him. I

apologize, and it’s not right.

....

[Defense counsel]: How were you going to get him out of the

house?

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 6 of 19

[K.B.]: Make up lies just to get him out cause I know you would

have to evict him cause he established residency there, he gets

mail there. So the only way is the eviction and I wasn’t going to

go through another stressor on top of another stressor, the

eviction process, and then going to court for the eviction. It’s just

– the only thing I knew is get him to go to jail, is the only thing I

knew.

Id. at 31-33.

[12] The jury found Chambless guilty as charged. Id. at 86-89. At sentencing, the

trial court merged Counts II and III into Count I and sentenced Chambless to

five years, with three years executed and two years suspended to probation.

Appellant’s App. Vol. II at 8-9, 93. Chambless now appeals.

Discussion and Decision

[13] Chambless raises three evidentiary issues and one sufficiency issue. Regarding

the former, he argues that the trial court should not have admitted the following

three pieces of evidence, all out-of-court statements: 1) the recording of K.B.’s

911 phone call; 2) the part of Medic Bradbury’s testimony that recounted K.B.’s

statement that Chambless was her attacker; and 3) the recording of the jail

phone call. Because he did not object at trial to the admission of the 911 call,

Chambless tries to resurrect that claim by alleging fundamental error.

Regarding the latter issue, he argues that the State failed to present sufficient

evidence to support his convictions because the State’s only evidence was

inadmissible hearsay. He notes that, at trial, K.B. recanted her allegations.

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 7 of 19

Thus, he claims that the guilty verdict is “completely against logic and sound

reasoning.” Appellant’s Br. at 19.

I. Evidentiary Issues

[14] As to Chambless’s evidentiary claims, we note that a trial court has broad

discretion in ruling on the admissibility of evidence, and we disturb those

rulings only upon an abuse of that discretion. Carr v. State, 106 N.E.3d 546, 552

(Ind. Ct. App. 2018), trans. denied. An abuse occurs only where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances.

Palmer v. State, 704 N.E.2d 124, 127 (Ind. 1999). There is a strong presumption

that the trial court properly exercised its discretion. Warner v. State, 773 N.E.2d

239, 247 (Ind. 2002). In determining the admissibility of evidence, we will only

consider evidence that favors the trial court’s ruling and unrefuted evidence that

favors a defendant. Sallee v. State, 777 N.E.2d 1204, 1210 (Ind. Ct. App. 2002).

We will not reverse a trial court’s evidentiary ruling if we may sustain it on any

ground. See Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).

[15] Hearsay is “a statement that: (1) is not made by the declarant while testifying at

the trial or hearing; and (2) is offered in evidence to prove the truth of the

matter asserted.” Ind. Evidence Rule 801(c). Hearsay is not admissible except

as provided by law or by other court rules. Ind. Evidence Rule 802.

A. K.B.’s Statements in 911 Phone Call

[16] Chambless argues that it was fundamental error to admit the 911 call, claiming,

inter alia, that K.B.’s statements in the call were hearsay, which were not

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 8 of 19

admissible as excited utterances because the State did not pose questions to

K.B. as to whether she was under stress when she made the call or establish a

time frame between the time of the fight and the 911 call. “Thus, no proper

foundation was laid for an excited utterance exception to the prohibition

against hearsay.” Appellant’s Br. at 14. The fundamental error exception is

extremely narrow and encompasses only errors so blatant that the trial judge

should have acted independently to correct the situation. See Durden v. State, 99

N.E.3d 645, 652 (Ind. 2018). Chambless concedes that to prevail on a claim of

fundamental error, he must show that the admission of the 911 call made “a fair

trial impossible.” See id.

[17] As Chambless acknowledges, a trial court may admit hearsay that qualifies

under the excited utterance exception. See Ind. Evidence Rule 803(2). An

excited utterance is a “statement relating to a startling event or condition made

while the declarant was under the stress of excitement that it caused.” Id. The

rationale behind admitting excited utterances is that startling events and

absence of opportunity for reflection vest the statements with reliability and

reduce the likelihood of falsification. 13 Robert Lowell Miller Jr., Indiana

Practice: Indiana Evidence § 803.102 (3d ed. 2007). Whether a statement

constitutes an excited utterance is a factual determination subject to a clearly

erroneous standard of review. Davenport v. State, 749 N.E.2d 1144, 1148 (Ind.

2001).

[18] To use this exception, the proponent of the evidence must establish three

foundations: (1) a startling event; (2) a statement made while the declarant was

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 9 of 19

under the stress of excitement caused by the event; and (3) that the statement

relates to the event. Id. We do not apply this test mechanically but consider the

particularities of each case. Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App.

2012). “The heart of the inquiry is whether the declarant was incapable of

thoughtful reflection.” Id. “A declaration does not lack spontaneity simply

because it was an answer to a question. Whether given in response to a

question or not, the statement must be unrehearsed and made while still under

the stress of excitement from the startling event.” Yamobi v. State, 672 N.E.2d

1344, 1346 (Ind. 1996).

[19] The event and utterance need not be contemporaneous, though lapse of time is

a factor to consider when deciding if the statement was spontaneous and

unrehearsed. Holmes v. State, 480 N.E.2d 916, 918 (Ind. 1985). The longer the

time between an event and an utterance, the greater the likelihood that the

statement is a narrative of past events instead of an excited utterance. See Lewis

v. State, 554 N.E.2d 1133, 1136 (Ind. 1990) (discussing res gestae exception, “the

possibility of shrewd and self-calculated answer” was not precluded but was in

fact facilitated by the passage of time). However, the greater the stress caused

by the event, the longer the effects of the stress can endure. For instance, in

Yamobi, 672 N.E.2d at 1346-48, our Supreme Court held that a statement as

long as one hour after a shooting was admissible as an excited utterance. In

Newbill v. State, 884 N.E.2d 383, 397 (Ind. Ct. App. 2008), trans. denied, a rape

victim’s 911 phone call at least four hours after the rape was admissible under

the excited utterance exception.

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 10 of 19

[20] Chambless’s arguments that the State did not ask K.B. on direct exam whether

she was under stress when she made the call or establish a time frame between

the fight and the call are unavailing. The testimony at trial clearly showed the

contrary. K.B. had been beaten and strangled, clearly a startling event, one that

made her run from the apartment “just in time,” not taking the time to wear a

coat and winter boots despite the cold weather. See Tr. Vol 1 at 28-29, 48, 53.

Further, the fact that Chambless, during the altercation, punched holes in the

wall and broke a door to an upstairs bathroom accentuated the emotional

intensity of the event. See id. at 27-28; State’s Ex. 8. K.B. had trouble breathing

during her 911 call further illustrating her distressed state of mind. Tr. Vol. 1 at

30. Because the fight occurred at 10:10 a.m. and K.B. called 911 no later than

10:28 a.m., her statement to the 911 operator occurred a short time after she

was attacked, not giving her time for thoughtful reflection. See id. at 36, 51-52;

see also Yamobi, 672 N.E.2d at 1346 (statement one hour after shooting was an

excited utterance) and Newbill, 884 N.E.2d at 397 (rape victim’s 911 phone call

at least four hours after incident was admissible as an excited utterance).

[21] These facts easily established the foundational requirements for excited

utterances: (1) a startling event; (2) a statement made under the stress of the

event; and (3) a statement that relates to the event. Davenport, 749 N.E.2d at

1144. They also establish that K.B.’s statements during the 911 call were

unrehearsed and made while still under the stress from the fight. See Yamobi,

672 N.E.2d at 1346. K.B.’s statements during the 911 call were admissible as

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 11 of 19

excited utterances, and there was no error, fundamental or otherwise, in

allowing the jury to hear this evidence.

B. K.B.’s Statements to Medic Bradbury

[22] Chambless argues that Medic Bradbury’s statement that recounted K.B.’s

allegation to Medic Bradbury that Chambless had assaulted her was

inadmissible hearsay. Chambless acknowledges that statements made pursuant

to medical treatment or diagnosis are admissible under Indiana Rule of

Evidence 803(4), but he claims that statements about the identity of the

perpetrator who caused the injuries are not admissible under this exception.4

[23] Indiana Evidence Rule 803(4) provides that statements for purposes of medical

diagnosis or treatment are admissible if the statement:

(A) is made by a person seeking medical diagnosis or treatment;

(B) is made for--and is reasonably pertinent to--medical diagnosis

or treatment; and

sensations; their inception; or their general cause.

Chambless has waived this claim because while he made a general objection at trial on hearsay grounds at

the outset of Medic Bradbury’s testimony, he failed to object on these more specific grounds when Medic

Bradbury testified that K.B. told her that Chambless was her attacker. Tr. Vol 1 at 48. A party may not add

to or change his grounds for objections on appeal. Treadway v. State, 924 N.E.2d 621, 631 (Ind. 2010). Any

ground not raised at trial is not available on appeal. Id. Nonetheless, we will review this claim on the merits.

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 12 of 19

Id. This hearsay exception is “based upon the belief that a declarant’s self-

interest in seeking medical treatment renders it unlikely that the declarant

would mislead the medical personnel person she wants to treat her.” Miles v.

State, 777 N.E.2d 767, 771 (Ind. Ct. App. 2002) (citing McClain v. State, 675

N.E.2d 329, 331 (Ind. 1996)).

[24] Such statements usually do not include statements that identify the perpetrator

because the identity of the perpetrator is usually not necessary to provide

effective medical care. Perry v. State, 956 N.E.2d 41, 49 (Ind. Ct. App. 2011);

Nash v. State, 754 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2001). However, where

the identity of the perpetrator is relevant to appropriate diagnosis and

treatment, we have upheld the admission of statements that identify a

perpetrator. In Nash, for instance, we found that a rape victim’s statement to an

emergency room nurse that her estranged husband had raped her was relevant

to her treatment because part of the nurse’s job was to determine if a person was

a victim of abuse and, if so, determining the identity of perpetrator would help

the nurse recommend appropriate counseling resources and how to advise the

victim about avoiding further domestic abuse. Id. at 1025. Nash also discussed

how other jurisdictions had used this rationale to admit children’s statements to

medical providers that identified the perpetrator of abuse.

The reason for allowing such testimony is “that knowledge of the

perpetrator is important to the treatment of psychological injuries

that may relate to the identity of the perpetrator and to the

removal of the child from the abuser’s custody or control.” 2

John W. Strong, McCormick on Evidence § 278 at n.9. . . .

[T]he identity of the child abuser is not only pertinent to treating

Court of Appeals of Indiana | Opinion 18A-CR-1384 | February 12, 2019 Page 13 of 19

the child’s emotional and psychological injuries, but also

necessary to prevent a child from being returned to an abusive

environment. Accordingly, where a child abuser is a member of

the family or household, this person’s identity is particularly

pertinent to the medical personnel’s recommendation with

respect to treatment.

Id. at 1024-25.

[25] United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993) discussed this rationale

in rape cases:

The physician generally must know who the abuser was in order

to render proper treatment because the physician’s treatment will

necessarily differ when the abuser is a member of the victim’s

family or household. In the domestic sexual abuse case, for

example, the treating physician may recommend special therapy

or counseling and instruct the victim to remove herself from the

dangerous environment by leaving the home and seeking shelter

elsewhere. In short, the domestic sexual abuser’s identity is

admissible under Rule 803(4) where the abuser has such an

intimate relationship with the victim that the abuser’s identity

becomes “reasonably pertinent” to the victim’s proper treatment.