ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lesa Lux Johnson Jeffrey A. Modisett
Attorney at Law Attorney General of Indiana
Deputy Attorney General
STATE OF INDIANA,
Shepard, Chief Justice.
Appellant Thomas Montgomery was charged with one count of murder, Ind. Code Ann. § 35-42-1-1 (West 1998), and one count of carrying a handgun without a license, Ind. Code Ann. § 35-47-2-1
. The jury found Montgomery guilty of both counts, and
the trial judge sentenced him to a term of sixty years for murder
and to a term of one year for carrying a handgun without a license,
to be served concurrently. Montgomery appeals his conviction and
sentence. We affirm.
Officer Elam asked Jackson who shot him, but Jackson stated that he had to go home. The officer encouraged Jackson to relax and remain lying down, and again asked Jackson who shot him. Jackson repeated that he wanted to go home. He got up on his knees, but immediately collapsed. Jackson's fiancé, Sandura Stephens, arrived and helped the officer calm Jackson down. She and Officer Elam helped Jackson sit up against a fence. The officer again asked Jackson who shot him, and Jackson said: "Buster shot me." About a minute had passed from the time of Officer
Elam's arrival to the time of Jackson's statement.
Jackson was taken to a hospital, where he died shortly after
arrival. He had been shot four times, with bullets entering his
chin, arm, thigh, and chest. The gunshot to the chest proved
fatal. The bullet that entered Jackson's thigh appears to have
entered his body from above while he was in a seated position.
Thomas Montgomery, who is also known as "Buster," and Victor Jackson had been long-time friends. Stephens testified, however, that on the weekend before his death, Jackson told her that he had had an argument with Montgomery over disparaging remarks Montgomery had made about her. Amos Mitchell testified that he saw Jackson and Montgomery arguing that weekend, that Jackson threatened to shoot Montgomery if Montgomery continued to insult Stephens, that Jackson pulled a gun on Montgomery, and that Mitchell intervened to stop Jackson from shooting Montgomery . Stephens asked Jackson not to make a big deal of what had been said, and at her request, Jackson did not take his pistol with him when he left Stephens' apartment on the evening he was shot.
After leaving Stephens' apartment, Jackson went to a nearby vacant lot to socialize with friends. Mitchell testified that he had been in the group with Jackson, but left when he saw Montgomery approaching and headed toward a liquor store down the block. He heard gunshots shortly thereafter and saw Montgomery going past him
and Jackson running in the opposite direction.
Wilfred Martin came
out of the liquor store after hearing gunshots and saw a man he
identified at trial as Montgomery running toward him, carrying a
handgun. After the man had run past him, Martin walked down the
block and found Jackson lying on the sidewalk.
After Montgomery was arrested, he told the investigating
officer that he had been in the group with Jackson but had left to
go the liquor store before the shooting. As he was walking back to
the group, he heard shots being fired, everyone scattered, and he
learned later that Jackson had died. Montgomery presented two
witnesses who testified that he was near the liquor store talking
with someone else when the shots were fired, at which point
everyone around started running.
(a) testimony by Officer Elam and Stephens about
Jackson's identification of his assailant, and
Stephens' testimony about statements Jackson made
concerning an argument he had had with Montgomery; and
(2) whether the trial court properly imposed an enhanced
sentence for murder.
The Indiana Rules of Evidence define hearsay as "a statement,
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted." Ind.Evidence Rule 801(c). Hearsay is generally not
admissible in evidence. Evid.R. 802.
However, errors in the
admission of evidence, including hearsay, are to be disregarded as
harmless unless they affect the substantial rights of a party. See
McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).
whether an evidentiary ruling has affected an appellant's
substantial rights, we assess the probable impact of the evidence
on the jury. See id.
Admission of hearsay is not grounds for
reversal where it is merely cumulative of other evidence admitted.
id. at 331-32.
impending death, Evid.R. 804(b)(2).
An excited utterance is defined as follows: "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." Evid.R. 803(2). In a case involving a shooting
victim's identification of his assailant, this Court has explained:
For a hearsay statement to be admitted as an excited utterance, three elements must be shown: 1) a startling event occurs; 2) a statement is made by a declarant while under the stress of excitement caused by the event; and 3) the statement relates to the event. Application of these criteria is not mechanical. Rather, under Rule 803(2), like its predecessor common-law doctrine, the heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. . . .
. . . .
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. . . .
. . . [T]he time between the startling event and the
hearsay statement is one factor to be considered in
determining admissibility as an excited utterance. While a
declaration is generally less likely to be admitted if it is
made long after the startling event, the amount of time that
has passed is not dispositive. . . . Again, the central issue
is whether the declarant was still under the stress of
excitement caused by the startling event when the statement
was made. . . .
. . . Being shot is a traumatic event, both physically
and psychologically. Its startling effect, depending on the
severity of the injury, can continue for hours or longer. . .
. . . .
. . . We have addressed in several decisions whether a shooting victim's identification of the assailant was properly admitted as an excited utterance under common law. In nearly
every instance, we held the statement to be admissible. . . .
[However], trial courts should not abdicate rational analysis
in cases where a shooting victim has fingered a possible
perpetrator. Fairness to the defendant requires an assessment
of whether the declarant's statement was the product of
Yamobi v. State, 672 N.E.2d 1344, 1346-47 (Ind. 1996) (citations
In this case, Officer Elam and Stephens arrived within minutes
after Jackson had been shot four times. Jackson was lying face
down on the sidewalk and bleeding. While Jackson did not answer
the officer's first two inquiries as to the identity of his
assailant, Jackson's expressed concern was to reach the safety of
his home. After Jackson collapsed while attempting to get up, he
answered the officer's third inquiry without hesitation. The
officer did not suggest who the assailant might be, and although
there were other people in the vicinity, there is no evidence that
anyone else suggested that Jackson identify Montgomery in the short
time it took for Officer Elam to arrive at the scene.
We conclude that the trial court did not err in admitting into
evidence under the excited utterance exception
the testimony of
Officer Elam and of Stephens that Jackson had identified Montgomery
as his assailant. Because the identification was properly admitted
on this basis, we need not consider whether any other hearsay
exception would also apply.
Present sense impression is defined as: "A statement
describing or explaining a material event, condition or
transaction, made while the declarant was perceiving the event,
condition or transaction, or immediately thereafter." Evid.R.
803(1). Jackson did not make the statement at issue while
perceiving the event, and nothing in the evidence indicates that he
was reporting the argument to Stephens immediately after it
occurred. Nevertheless, even if the trial court erred in admitting
Stephens' testimony on this point, it was merely cumulative of
Mitchell's more detailed eyewitness account of the argument. We
conclude that the admission of this evidence was at most harmless
See McClain, 675 N.E.2d at 331-32.
It is within the discretion of the trial court to determine
whether a presumptive sentence will be increased or decreased
because of aggravating or mitigating circumstances. See id.
a trial court enhances a presumptive sentence, however, it must
state its reasons for doing so. See Morgan v. State, 675 N.E.2d
1067, 1073 (Ind. 1996). The court's statement must identify all
significant aggravating and mitigating factors, state why each is
considered to be aggravating or mitigating, and weigh the
aggravating factors against the mitigating factors. See
N.E.2d at 272.
"These requirements serve the dual purpose of
guarding against arbitrary sentences and providing an adequate
basis for appellate review."
Morgan, 675 N.E.2d
In this case, the trial court found the following aggravating factors and enhanced the presumptive sentence by five years: (1) Montgomery's criminal history, (2) the manner in which the murder
was committed, and (3) a lesser sentence would depreciate the
seriousness of the crime
Montgomery first claims the sentencing statement is
insufficient to support an enhanced sentence because it is a
mechanical recitation of statutory
When sentencing Montgomery, the trial court stated that it had
considered the following:
the aggravating factors that Mr. Montgomery has a history of criminal activity, specifically the older robbery that [defense counsel] referenced which did involve peripheral violence . . . and the jury finding relative to the factors as alleged that the decedent, Victor Jackson, was shot four time apparently from a superior position while he was sitting down.
a mere recitation of statutory factors is insufficient
to support an enhanced sentence, see Erby v. State, 511 N.E.2d
302, 303-04 (Ind. 1987),
the trial court in this case identified
a particular prior serious crime and the specific manner in which
Montgomery murdered his victim as aggravating circumstances. We
therefore conclude that the sentencing statement was sufficiently
Montgomery next argues that the trial court erred in not
considering that his last serious criminal offense was in 1977,
and that since that time until his conviction in this case, he
had been convicted of only two alcohol-related offenses. He
argues that the lack of any recent violent crimes should "offset"
the aggravating factors and weigh in favor of the presumptive
sentence. Montgomery appears to be arguing that the trial court
should have considered
as a mitigating factor
the fact that
nearly twenty years had passed since his last serious offense.
Ind. Code Ann.
(c)(6) (West 1998).
A trial court must set forth on the record a description of
significant mitigating circumstances if the trial court reduces
the presumptive sentence or uses mitigating circumstances to
offset aggravating circumstances. See Widener v. State, 659
N.E.2d 529, 533 (Ind. 1995)
. However, while a trial court may
not ignore facts in the record that would mitigate an offense, a
finding of mitigating circumstances is within the trial court's
discretion. See id. at 533-34.
A trial court is "not required
to include within the record a statement that it considered all
proffered mitigating circumstances, only those it consider[s]
significant." Id. at 534. Moreover, a trial court is not
required to give the same weight to proffered mitigating
circumstances as the defendant does. See id. at 533-34.
In this case, the sentencing statement indicates that the trial court considered Montgomery's criminal record and the
nature and circumstances of the crime to be aggravating factors.
These may properly be considered as aggravating factors. See
Ind. Code Ann.
§ 35-38-1-7.1(a)(2), (a)(3)(A), and (b)(2)(West
The trial court apparently did not find Montgomery's lack
of recent criminal violence to be sufficiently mitigating to
offset these aggravating factors. Under the circumstances, the
trial court was not required to state on the record the reasons
why it found this factor to be insufficiently mitigating to
outweigh the aggravating circumstances. See Widener, 659 N.E.2d
While Montgomery does not specifically challenge the third aggravating factor identified by the trial court, we note that a finding that a lesser sentence would depreciate the seriousness of the crime has application only when considering imposition of a sentence of shorter duration than the presumptive sentence, not when enhancing a sentence. See Penick v. State, 659 N.E.2d 484, 488 (Ind. 1995). However, "[d]espite a trial court's use of an improper aggravating circumstance to enhance a sentence, this Court will affirm if the other aggravating circumstances are adequate to support the sentence imposed." Scheckel v. State, 620 N.E.2d 681, 684 (Ind. 1993). A single, proper aggravating factor may be sufficient to support an enhanced sentence. See Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995). In the present case, the trial court stated two valid aggravating factors. They are sufficient to support imposition of an enhanced sentence.
We therefore find no error in the trial court's imposition of an enhanced sentence.
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