ATTORNEY FOR APPELLANT
Patricia Caress McMath
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
ROBERT SIMMONS, )
Appellant (Defendant Below), )
v. ) Supreme Court
) Cause No. 49S00-9806-CR-366
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9705-CF-65358
ON DIRECT APPEAL
July 16, 1999
Robert Simmons was convicted of the murder of Ronald Brown and was sentenced
to fifty-five years imprisonment. In this direct appeal, Simmons contends the trial court erred
by admitting irrelevant and prejudicial evidence, and also by admitting hearsay evidence of
a child's statement in violation of the Confrontation Clauses of the Sixth Amendment and
Indiana Constitution, Article I, Section 13. We affirm the trial court.Factual and Procedural Background
Simmons frequently visited his friend Melissa Fuqua to use the telephone in her
home. On May 5, 1997, in the course of one of these visits, Simmons encountered Brown
and another man entering the house as he was leaving. According to Simmons, the two had
threatened him with guns earlier that year. Shortly thereafter, Brown left the house for his
car. As Brown and Simmons passed on the porch, Brown allegedly called Simmons a punk
bitch. Brown then entered his car, and Simmons produced a .38 caliber handgun and fired
five shots at Brown. Simmons later testified that he thought Brown was retrieving a gun
from his car. Brown died as a result of gunshots to the head.
Fuqua's cousin and a friend were standing on Fuqua's porch when the shots were
fired, and both testified that they saw Simmons shoot Brown. Fuqua was in the house when
the shots were fired, but ran to the porch where Rashida, her eight-year-old daughter, was
screaming He killed him. As Fuqua tried to calm Rashida, the child repeated that Simmons
had killed Brown. At trial, Fuqua related these events, including what the child had said.
Rashida did not testify.
When the police arrived at the scene of the crime they found an empty holster lying
on Simmons' car seat. Police photographs of the holster and the holster itself were admitted
into evidence over objection. The jury was instructed on the issue of self-defense, but
convicted Simmons of murder. I. Evidence of the Holster
Simmons first contends that the trial court erred by admitting the holster and pictures
of the interior of Simmons' car showing the holster on the seat, both of which he contends
were irrelevant and prejudicial. Given that Simmons admitted shooting Brown, but claimed
self-defense, both the relevance and the prejudice of this evidence approach zero. Simmons
cites Tynes v. State, 650 N.E.2d 685 (Ind. 1995) for the proposition that evidence of other
weapons not used in the crime, but present at the scene of the crime, is inadmissible. In
Tynes, evidence of other weapons not used in the crime was found to be error but harmless
because there were other references to the weapons in testimony. Id. at 687. Here, the
presence of a holster associated with the weapon used in the crime is even less consequential.
Its relevance is marginal, but its prejudice is nonexistent. The trial court's balancing of these
factors presents no reversible error.
II. Hearsay and Confrontation Clause Issues
A. Excited Utterance
Simmons also contends that the trial court erred when it overruled a hearsay objection
to Fuqua's report of Rashida's statement that Rob [Simmons] killed R.B. [Brown]. The
trial court admitted the testimony as an excited utterance under Indiana Evidence Rule
803(2). Hearsay is admissible under this rule when the statement relates to a startling event
or condition made while the declarant was under the stress of excitement caused by the event
or condition. The issue is whether the declarant was still under the stress of excitement
caused by the startling event when the statement was made. Yamobi v. State, 672 N.E.2d
1344, 1346 (Ind. 1996). Here, Fuqua testified that she went outside when she heard
gunshots, and her daughter Rashida was screaming, [h]e killed him. Fuqua brought
Rashida in the house, where the child told her mother that Simmons killed Brown. Rashida's
statements were made within a minute of the shooting. Simmons contends that Rashida was
not acting while under stress because Fuqua said she had to calm Rashida down. It was
well within the trial court's discretion to conclude that Rashida, eight years old, was still
incapable of thoughtful reflection one minute after witnessing five gun shots and a death.
B. Confrontation Clause Claim
Simmons next contends that even if the declarant's statement falls within the hearsay
exception, the statement is still barred by the Confrontation Clauses of the Sixth Amendment
to the United States Constitution and Article I, Section 13 of the Indiana Constitution
because the declarant, Rashida, could have been subjected to cross-examination, and that
unavailability of the declarant is a constitutional requirement for the admission of hearsay.See footnote
He contends that in almost all of our previous holdings regarding the excited utterance
exception to the hearsay rule, the declarant was a murder victim and thus unavailable to
testify. See Taylor v. State, 697 N.E.2d 51 (Ind. 1998); Montgomery v. State, 694 N.E.2d
1137 (Ind. 1998); Yamobi, 672 N.E.2d at 1345. In this case, however, the declarant was
alive and in the jurisdiction at the time of the trial. Conclusion
Simmons, however, did not object on Confrontation Clause grounds during the trial;
he objected only that Rashida's statement occurred after a calming down period that
followed the shooting. A defendant may not raise one ground for objection at trial and argue
a different ground on appeal. Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998) (citing
Marshall v. State, 621 N.E.2d 308, 316 (Ind. 1993)). Moreover, the crux of Rashida's
statement -- that Simmons shot Brown -- was uncontested. Two other witnesses saw
Simmons shoot Brown. Simmons also made clear, both at trial and in his appellate brief, that
the issue in this case was intent, not mistaken identity, and that the shooting was in self-
defense. The hearsay statements concerned only the identity of the perpetrator of the crime,
not his motive, so cross-examination would accomplish nothing. Accordingly, the
Confrontation Clause claim is neither preserved nor prejudicial.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
1 Simmons cites Price v. State, 591 N.E.2d 1027 (Ind. 1992) which applied both the federal and state
Confrontation Clauses, but explained the rule only by reference to federal cases. Price described Ohio v.
Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) and Idaho v. Wright, 497 U.S. 805, 110 S.
Ct. 3139, 111 L. Ed. 2d 638 (1990) as requiring either the unavailability of the declarant or a determination
that the utility of confrontation is remote in order for hearsay to be admitted consistent with the Confrontation
Clause. See Price, 591 N.E.2d at 1030. However, in White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L.
Ed. 2d 848 (1992), the Supreme Court expressly allowed excited utterances without a showing of
unavailability, and made clear that the unavailability requirement discussed in Roberts applied only to
statements admitted under the exception to the hearsay rule for statements in a prior proceeding. Id. at 355-
56. The formulation in Price is perhaps the functional equivalent of a requirement of either (1) unavailability
and the indicia of reliability formulated in Roberts, or (2) simply extreme reliability as found in White, but it
does not explicitly deal with White's clarification of Roberts and Wright. Although Price referred to the
Indiana Constitution, it cited no Indiana constitutional precedent and developed no independent analysis apart
from federal precedent.
Converted from WP6.1 by the Access Indiana Information Network