ATTORNEY FOR APPELLANT
Anthony V. Luber
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
SUPREME COURT OF INDIANA
JOHN WILLIAM DAVENPORT, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 71S00-9912-CR-800
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9805-CF-179
ON DIRECT APPEAL
June 28, 2001
John William Davenport was convicted of the murder of Donna Hess and sentenced
to sixty-five years imprisonment. In this direct appeal, he contends that:
(1) the trial court abused its discretion in admitting inadmissible hearsay; (2) the
trial court abused its discretion in refusing instructions on circumstantial evidence and the
lesser included offense of reckless homicide; (3) the trial court erred during jury
deliberations in failing to provide the jury with a transcript of the testimony
of a witness; and (4) there was insufficient evidence of murder. We
affirm the judgment of the trial court.
Factual and Procedural Background
On May 3, 1998, five-year-old Jeremy Dew awoke to loud noises in the
kitchen of his home. Dew went into the kitchen to see what
the noise was and discovered his mother, Donna Hess, and John Davenport fighting.
Hess was crying and Davenport picked her up and threw her against
the wall. When Dew attempted to help Hess, Davenport hit him in
the head with a stick and Dew returned to bed.
When Dew awoke the next morning, he found his mothers body on the
floor of the kitchen. Dew called 911 and told the operator that
his mom got beat up last night and was dead. Dew was
taken to the hospital where he told a social worker that John had
hurt his mother. The cause of death was strangulation.
At trial, the court admitted a tape of the 911 call, a transcript
of the 911 call, and Dews statements to the social worker. There
was also testimony from Shannon West, a friend of Hess, that Davenport was
jealous of Hess relationship with another man and had threatened Hess the day
before she was killed. During jury deliberations, the trial court replayed the
911 tape at the jurys request. Davenport was found guilty of murder
and sentenced to sixty-five years imprisonment.
Davenport challenges the trial courts admission of a tape of the 911 phone
calls and Dews statements to a social worker. He contends that both
were inadmissible hearsay. The State responds that the statements were admissible under
the excited utterance exception to the hearsay rule. Hearsay is an out
of court statement offered to prove the truth of the matter asserted.
Ind. Evidence Rule 801(c). It is inadmissible unless it falls under
an exception. Ind. Evidence Rule 802. Among the exceptions to the
hearsay rule is: [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. Ind. Evidence Rule 803(2). Determining whether a statement
constitutes an excited utterance is essentially a factual determination subject to a clearly
erroneous standard of review, sometimes described as the functionally equivalent abuse of discretion.
Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).
For a hearsay statement to be admitted as an excited utterance, three elements
must be shown: (1) a startling event, (2) a statement made by
a declarant while under the stress of excitement caused by the event, and
(3) that the statement relates to the event.
Id. This is
not a mechanical test. It turns on whether the statement was inherently
reliable because the witness was under the stress of an event and unlikely
to make deliberate falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice
§ 803.102 (2d ed. 1995); accord Jenkins v. State, 725 N.E.2d 66, 68
The trial court admitted an audiotape of Dews phone call to 911 and
the responding call from the 911 operator as excited utterances. In the
first, Dew told the operator that his mom got beat up last night
and was dead. When asked who beat his mother, Dew responded his
Dew then hung up, the operator called back, and Dew reiterated
the information. When determining whether a statement is admissible under the excited
utterance exception, the trial court simply determines whether the evidence is sufficient to
allow the trier of fact to find, by a preponderance of evidence, that
the speaker was under the stress of the startling event or condition.
Miller, supra, § 803.102, at 602. This need not be done in
any specific manner. Ultimately, the issue for the trial court was whether
the call was in fact made very shortly after this five year old
discovered his dead mothers body, and whether this foundation was sufficient to meet
the requirements of Indiana Rule of Evidence 803(2). The trial court did
not abuse its discretion in admitting the 911 tape under the excited utterance
exception. Dew experienced a startling eventfinding the body of his motherand then
called 911 to report this finding. This is not the situation where
time passed and the witness had time to reflect. Dew testified that
he called 911 immediately after finding the body. The police officers who
arrived at the house a few minutes later confirmed this when they described
Dew as confused, in shock, upset, and fidgety. Given this testimony, we
cannot conclude that the trial court abused its discretion in admitting the 911
calls under the excited utterance exception.
Davenport also challenges the foundation for the 911 tape. The 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. Ind. Evidence Rule 901(a). Karen DePaepe, the Communications Center
Director for 911 in South Bend, testified concerning the master list of the
daily 911 phone calls and described the record keeping procedures for the 911
program. That is sufficient to establish the tape as an authentic recording
of calls to the 911 number.
Statements to Social Worker
Davenport also challenged the trial courts admission of Dews statements to a social
worker shortly after finding the body. Dew was able to tell the
social worker his name, his date of birth, and other background information.
He then told the social worker, with a police officer present, that John
hurt his mother.
The police officers account of Dews statement to the social worker was plainly
hearsay because it was offered for the truth of the proposition that John
injured Dews mother. The trial court admitted the statement under the excited
utterance exception. It seems somewhat of a stretch to conclude that a
statement one half-hour after the discovery of the body was still made under
the stress of the startling event. Although there is no rigid test
of elapsed time, we have found the exception available one half-hour after the
startling event only under extreme and continuing stress. See Yamobi v. State,
672 N.E.2d 1344, 1346-47 (Ind. 1996) (a victim of a gunshot unable to
move). Even if error, however, admission of this statement was cumulative of
Dews testimony and the 911 tape, and was harmless.
Davenport contends that because Dew did not testify about the statement at trial,
it was inadmissible under Indiana Rule of Evidence 801(d)(1). This is incorrect.
In the first place, the cited rule provides a path to admissibility
of certain statements. It does not require exclusion of any statement.
If its requirements are not met, a hearsay statement may nevertheless be admitted
under other provisions. Second, Evidence Rule 801(d)(1) provides that certain statements are
not hearsay if the specified conditions are met. These include that the
declarant testifies at trial, is subject to cross-examination, and either: (1) the
statement is inconsistent with the testimony and was given under oath at another
proceeding; (2) the statement is consistent with the testimony and offered to rebut
a charge of fabrication or improper motive made before the motive to fabricate
arose; or (3) it is a statement of identification made shortly after perceiving
the person. Under this provision, admission of Dews statement does not turn
solely on whether he testified at trial about the statement.
II. Jury Instructions
Circumstantial Evidence Instruction
Davenport contends that the trial court abused its discretion in refusing his tendered
instruction on circumstantial evidence. Although the trial court instructed the jury on
the definitions of both direct and circumstantial evidence, it refused to give the
following instruction tendered by Davenport:
Evidence may be either direct or circumstantial. Direct evidence means evidence that
directly proves a fact, without an inference, and which by itself, if true,
conclusively establishes that fact. Circumstantial evidence means evidence that proves a fact
from which an inference of the existence of another fact may be drawn.
An inference is a deduction of fact that may logically and reasonably
be drawn from another fact or group of facts.
It is not necessary that facts be proved by direct evidence. Both
direct and circumstantial evidence are acceptable as means of proof. Neither is
entitled to any greater weight than the other.
In cases where circumstantial evidence alone is relied on, the circumstances disclosed by
the evidence must be of such character and strength as to exclude every
reasonable hypothesis except guilt. If circumstances disclosed can be explained on any
reasonable hypothesis except guilt or can be explained on any reasonable theory of
defendants innocence, the defendant is entitled to acquittal. But circumstantial evidence alone
may be sufficient to support a verdict of guilty, provided that the jury
believe beyond a reasonable doubt that the accused is guilty as charged.
In reviewing a trial courts decision to give or refuse tendered jury instructions,
this Court considers: (1) whether the instruction correctly states the law; (2) whether
there is evidence in the record to support the giving of the instruction;
and (3) whether the substance of the tendered instruction is covered by other
instructions which are given. Cutter v. State, 725 N.E.2d 401, 408 (Ind.
2000). This instruction was not supported by the evidence because there was direct
evidence of the crime. In cases based solely on circumstantial evidence, there
are generally no witnesses to the alleged crime. Nichols v. State, 591
N.E.2d 134, 136 (Ind. 1992). Direct evidence is defined as [e]vidence that
is based on personal knowledge or observation and that, if true, proves a
fact without inference or presumption. Blacks Law Dictionary 577 (7th ed. 1999).
In this case, Dew testified that he saw Davenport beating his mother
and when he awoke the next day she was dead. Hess died
as a result of strangulation and had thirty-nine other injuries. Dew did
not witness the actual killing, but did witness the beating that led to
the murder. Because there was direct evidence of the crime, the trial
court did not abuse its discretion in refusing Davenports tendered instruction on circumstantial
Reckless Homicide Instruction
Davenport further contends that the trial court abused its discretion in refusing his
lesser included offense instruction on reckless homicide. Wright v. State, 658 N.E.2d
563 (Ind. 1995), sets forth a three-part test for ruling on requests to
instruct the jury on a lesser included offense. Parts one and two
require the trial court to determine whether the lesser included offense is either
inherently or factually included in the greater offense. Id. at 566-67.
If so, part three of Wright requires the trial court to determine if
there is a serious evidentiary dispute as to any element that distinguishes the
greater offense from the lesser. Id. at 567.
We review trial court rulings on lesser included offense instructions for an abuse
of discretion unless: (1) the trial court made no explicit finding as
to the existence of a serious evidentiary dispute, and (2) the defendant made
clear the basis for the claimed dispute.
Brown v. State, 703 N.E.2d
1010, 1019-20 (Ind. 1998). In this case, the trial court found that
there was no dispute about the evidence of the attack.
review the trial courts refusal of the lesser included offense instruction for an
abuse of discretion.
It is well settled that reckless homicide is an inherently included lesser offense
McEwen v. State, 695 N.E.2d 79, 85 (Ind. 1998).
The only element distinguishing the two offenses is the defendants state of
mind: reckless homicide occurs when the defendant recklessly kills another human being
and murder occurs when the killing is done knowingly or intentionally. Compare
Ind. Code § 35-42-1-5 (1998) with id. § 35-42-1-1(1). Reckless conduct is
action taken in plain, conscious, and unjustifiable disregard of harm that might result.
Id. § 35-41-2-2(c). That disregard must involve a substantial deviation from
the acceptable standards of conduct. Id. In contrast, a person engages
in conduct knowingly if the person is aware of a high probability that
he [or she] is doing so. Id. § 35-41-2-2(b).
Because reckless homicide is an inherently lesser included offense of murder, the issue
Wright becomes whether there was a serious evidentiary dispute as to the
mens rea element. Hess had thirty-nine different wounds on her body, including
a stab wound on her chin, blunt trauma abrasions on her head, several
other stab wounds, and a pattern wound to the back of her head.
She was strangled to death. This evidence is sufficient for the
trial court to conclude that her murder was performed at least knowingly, and
not recklessly. Because there was no serious evidentiary dispute about the mens
rea of the killing, the trial court did not abuse its discretion in
refusing Davenports tendered instruction on reckless homicide.
III. Trial Courts Response to Jurys Note
Davenport also claims that the trial court erred by not providing a transcript
of Dews testimony to the jury. During deliberations, the jury sent a
note to the court requesting the 911 tape and recorder, the transcript of
the 911 tape, and the transcript of Dews testimony in court. The
trial court called the jury into court with both counsel present and explained
that it did not believe a transcript could be instantaneously made of Dews
testimony because the court did not have computers. The trial court also
said that the jury could see the evidence only if it had a
disagreement about it. After the jury was excused, the trial court learned
that there was indeed a computer-aided transcription system in use and that it
would take at least two hours to develop a transcript of Dews testimony.
The jury then sent another note stating that there was a disagreement
about the 911 tape, requesting to listen to the tape in court.
The trial court called the jury back to the courtroom, explained that a
transcript of Dews testimony could be made, but it would take several hours.
The 911 tape was played. Davenport now claims that the trial
court effectively prevented the jury from having access to Dews testimony.
The procedure for allowing jurors to review evidence and testimony during deliberations is
governed by both statute and case law. The relevant statute provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of
the testimony; or
(2) the jury desires to be informed as to any point of law
arising in the case;
the jury may request the officer to conduct them into court, where the
information required shall be given in the presence of, or after notice to,
the parties or the attorneys representing the parties.
IV. Sufficiency of the Evidence
Ind. Code § 34-36-1-6 (1998).
See footnote In this case, the trial court called
the jury into the courtroom to explain that law. At that time,
the court erroneously informed the jury that a transcript of Dews testimony was
not available. The jury later asked to hear the 911 tape, but
not to view the transcripts of the call or Dews testimony. The
trial court then informed the jury that it had been mistaken about the
availability of a transcript and that a short excerpt from Dews testimony might
be available in a relatively short time, but a complete transcript would require
two hours or more. The jury never expressed a disagreement over Dews testimony
and did not renew its request. Accordingly, the statute was never triggered.
Although the trial court initially mistakenly informed the jury that a transcript
of Dews testimony was not available, it rectified that mistaken impression. The
jury had sufficient time to request the transcript if it had a disagreement
about it. The trial court did not err in failing to provide
the jury with a transcript of Dews testimony.
Davenport finally contends that there was insufficient evidence to support his conviction for
murder. He bases this contention on the fact that the majority of
the evidence is circumstantial and Dews testimony was inconsistent and improbable.
reviewing a claim of sufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Spurlock v. State, 675 N.E.2d
312, 314 (Ind. 1996). We look to the evidence and the reasonable
inferences therefrom that support the verdict and will affirm a conviction if evidence
of probative value exists from which a jury could find the defendant guilty
beyond a reasonable doubt. Id. Circumstantial evidence will be deemed sufficient
if inferences may reasonably be drawn that enable the trier of fact to
find the defendant guilty beyond a reasonable doubt. Franklin v. State, 715
N.E.2d 1237, 1241 (Ind. 1999).
In this case there was sufficient evidence to convict Davenport of murder.
Dew testified that Davenport beat his mother on the night of the murder.
He heard sounds of fighting, witnessed his mother crying, and saw Davenport
throw Hess into a wall. She died of strangulation. Although there
were inconsistencies in Dews testimony, the jury heard them and was free to
disbelieve the testimony. There was also evidence that Davenport had threatened to
harm Hess only a day before the murder because of her involvement with
another man. Taken together, this is sufficient evidence from which the jury
could have concluded that Davenport knowingly killed Hess.
The judgment of the trial court is affirmed
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur.
DICKSON, J., dissents without opinion.
Dew testified that he accidentally called Davenport his father and that Davenport
was the person who had hurt his mother.
The trial court at first based its ruling on Davenports claim that
he did not commit the crime, stating that defendant denied any guilt whatsoever,
and there was not a substantial dispute on the distinguishing element between Murder
and Reckless Homicide. This is incorrect under Young v. State, 699 N.E.2d
252, 256 (Ind. 1998). However, the trial court later stated that even
absent his denial of involvement, I didnt see any dispute about the evidence
of the attack and what inferential culpability might come from that was not
in any serious dispute that I saw. This is sufficient to satisfy
the Brown requirement.
Although not argued by Davenport, if the statute is not triggered, jury
requests are evaluated under the guidelines established by our case law. Robinson
v. State, 699 N.E.2d 1146, 1149-50 (Ind. 1998). These guidelines allow the
trial court in its discretion to send evidence to the jury room based
on three factors. Because Davenport neither cites to any case using these
factors or explains how use of the common law would lead to a
different result here, any claim based on the case law is waived.
Former Ind. Appellate Rule 8.3(A)(7) (now App. R. 46(A)(8)).
The State characterizes this argument as incredible dubiosity. That doctrine is
limited to cases where a sole witness presents inherently contradictory testimony that is
equivocal or the result of coercion and there is a complete lack of
circumstantial evidence of the appellants guilt. Tillman v. State, 642 N.E.2d 221,
223 (Ind. 1994). Dews testimony was corroborated and was not inherently improbable.
Nor was there a lack of circumstantial evidence of Davenports guilt.