These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Grant W. Hawkins, Judge. Cause No. 49G05-1201-FB-5928.
ATTORNEY FOR APPELLANT: VALERIE K. BOOTS, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, CYNTHIA L. PLOUGHE, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. ROBB, J., and BARNES, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Travis Smith appeals his convictions for failure to stop after an accident resulting in serious bodily injury while intoxicated as a class B felony and failure to stop after an accident resulting in damage to property other than a vehicle as a class B misdemeanor and his enhancement for being an habitual offender. Smith raises four issues which we revise and restate as:
I. Whether the admission of hearsay evidence constituted fundamental error;
II. Whether the prosecutor committed prosecutorial misconduct that resulted in fundamental error;
III. Whether the court's admonishments that the jury could discuss the testimony it had heard for the purpose of making sure that each juror heard the same thing constituted fundamental error; and
IV. Whether Smith knowingly, voluntarily, and intelligently waived his right to a jury trial on the habitual offender charge.
We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
On the morning of January 26, 2012, Bradley Amiano had just returned from a run and was taking out his trash on 13th Street in Indianapolis. A 1992 GMC 1500 pickup truck " kind of blew right past" him and was going well over the speed limit. Transcript at 68. Amiano was able to see inside the truck. The driver was wearing a brown jacket similar to " a big construction type jacket, like a Carhartt type brand." Id. Seconds after Smith saw the individuals in the truck, the truck failed to stop for a stop sign and collided with a red Jeep Grand Cherokee that did not have a stop sign and was driven by Raul Godinez with Godinez's one-year-old son as a passenger. The truck " pretty much T-boned" Godinez's vehicle. Id. at 140. The impact was so great that it caused the vehicles to spin out of control and end up on top of a porch. Godinez's son suffered a fractured skull as a result of the crash.
Amiano went inside, grabbed his cell phone, immediately went back outside, and called 911. At that time, the person who was sitting in the driver's seat opened the door, " kind of stumbled out," and started walking or jogging. Id. at 70. Amiano relayed the driver's actions to the 911 operator.
Indianapolis Metropolitan Police Sergeant Jack Simpson responded to the dispatch regarding a hit and run accident with injury and the description of the subject of a " black male in a carthardt [sic] jacket and grey pants" running southbound through the houses from 13th and Euclid. Id. at 85. Sergeant Simpson went north and approximately three blocks from the scene of the collision observed a black male with grey pants and a Carhartt jacket which matched the description given by the police dispatch. Sergeant Simpson told the person, later identified as Smith, to stop and observed that Smith had blood dripping down all over his face. Smith had a phone to his ear, but Sergeant Simpson could not tell if he was really talking on the phone. Sergeant Simpson called for an ambulance and asked Smith if he had been in an accident, to which Smith responded that he was not driving.
Meanwhile, police discovered Tywan Baker, who had broken his femur, and was trapped in the passenger seat of the truck, and Cody Smith (" Cody" ), Smith's brother, in the center seat and " pretty close to where [Baker] was sitting." Id. at 276. Cody was " wedged in there pretty good," and he had to use both of his hands to pull himself from the middle seat to exit out of the driver's side door. Id.
Indianapolis Metropolitan Police Officer Scott Emminger arrived at the scene and observed that Smith had an odor of an alcoholic beverage about his person, he had glassy and bloodshot eyes, his speech was discernibly slurred, and he was " kind of staggering." Id. at 108. When Officer Emminger asked him to produce an identification card or a driver's license, Smith attempted to retrieve his wallet from his pocket but failed. Officer Emminger asked to retrieve the wallet, and Smith allowed him to do so. An ambulance transported Smith to Wishard Hospital where he was treated and his blood was drawn. A forensic scientist later determined that the " Alcohol Concentration Equivalent in [Smith] was .19 gram/100 milliliters of his blood (0.19% w/v)(190 mg/DL)." State's Exhibit 5.
On January 30, 2012, the State charged Smith with Count I, failure to stop after an accident resulting in serious bodily injury while intoxicated as a class B felony; Count II, operating a motor vehicle while intoxicated causing serious bodily injury as a class D felony; Count III, operating a motor vehicle with a BAC of .08 or more causing serious bodily injury as a class D felony; and Count IV, failure to stop after an accident resulting in damage to property other than a vehicle as a class B misdemeanor. The State also alleged that Counts II and III were enhanced to class C felonies based upon Smith's prior convictions. On February 28, 2012, the State filed a notice of intent to file an habitual offender enhancement. On May 30, 2012, the State alleged that Smith was an habitual offender. On June 3, 2013, the State filed an amended information related to the habitual offender allegation.
Meanwhile, in April 2012, Lieutenant Waterman of the Marion County Sheriff's Department intercepted certain correspondence consisting of an envelope addressed to Smith's mother and containing a letter to Cody and a smaller stamped envelope which read on the back " Send this to Cody ASAP!" State's Exhibit 27(C). The letter dated April 17, 2012, and addressed to Cody, stated in part:
Right on, I needed to know what went on to help me to let my lawyer know what your statement is going to be. You know what I need you to tell the lawyer when he does a deposition on you. Story: When the police got to the scene, he ask if you and Ty were hurt. You told him I was hurt and you were trying to help him to move and his body weight dropped on you. The medical people lifted Ty so you could get out. As you were scooting to the door the police officer pulled you aggressively out the truck and threw you on the ground on the wet grass and mud. Some woman yelled, no no, another guy got out the truck, I think he was the driver. So the officer asked you whose truck is this, and you said my brother's. The officer said what's your brother's name and you said, I don't know why he slammed me on the ground and put me in cuffs when I hadn't done anything. The officer said because he thought you were the driver. Then they searched you and found the Grey Goose bottle and the beer, all unopened. The officer said that he could lock you up for the alcohol. The officer didn't give you a breath test because he knew you were not drunk, but he was trying to find a reason to lock anybody up. . . . Cody, you have to fill in the blanks after that. If they ask you in the deposition why you didn't say that you were driver of the truck. The police were being aggressive and mean. They believed what they heard the woman say. It's at that point once they started running my brother's information that all the police officers could focus on. They had my brother's driver's license and they were running his license plates. My only focus was on getting to the hospital to make sure that my brother was okay. I don't tell the police anything, anything because they lie and twist your story around. Also my brother told me not to say anything, but I can't let him sit in jail or go to prison because of lies, when he was looking out for his brother by not saying anything and going to get help. Cody, make it do what it do, and be ready for they tricks they try to pull. . . . If they get in touch with Ty and get a statement he should be on the same thing. He was getting a ride from you. I was in the middle and hit my head on the rear view mirror.
Transcript at 302-304.
On June 3, 2013, a two-day jury trial began. At trial, Amiano identified the person that he saw exiting from the driver's seat as the same person who was driving the truck when the crash occurred and the same person that the police apprehended. Amiano also testified that he did not observe the person that exited the truck climb over anyone to get out. He testified that the passenger in the middle seat was wearing a black jacket and red pants. On recross-examination, Amiano stated that it took him " [m]aybe 30 seconds" to go in his house, grab his cell phone, and walk out the front door. Id. at 81. Officer Emminger testified that the person in the middle of the truck stated that his brother was driving the truck, but when asked for his brother's name, the person said, " I forgot." Id. at 111.
Before taking a break, the court gave the following admonishment without objection:
Please remember the admonition I told you I'd be giving you. You may discuss the testimony you've heard among yourselves in the juryroom only and for the sole purpose of making sure you heard the same thing. Don't decide whether you believe or don't believe something. Don't decide that something has been proven or not proven. Simply decide whether or not you've heard the same thing. Don't form or express any opinion about this case until you've heard all the evidence, all the arguments and all of the instructions.
Id. at 125-126. At a later point before another break, the court stated without objection:
Please remember the admonition I've given you previously. You can discuss the testimony among yourselves for the purpose of making sure you've heard the same thing. Don't form or express any opinion about what has been proven or not proven, who to believe or not to believe until you've heard all the evidence, all the argument, all the instructions.
Id. at 171-172. Before another recess, the court stated without objection: " You can discuss the testimony among yourselves to make sure you've all heard the same thing." Id. at 196. The court later gave three similar admonishments prior to breaks.
After the prosecutor indicated that the State had no further witnesses, Smith moved for a directed verdict, and the trial court denied the motion. Baker testified that he was 6'2" and weighed 240 pounds and was sitting by the door, that Cody was driving, and Smith was sitting in the middle. Cody testified that he was driving the truck at the time of the accident and that Smith was wearing a sparkly diamond encrusted jacket. On cross-examination, Cody testified that he had indicated in an earlier statement that Smith was wearing a brown coat. Smith testified that he was in the middle seat, Cody was driving, and that Baker was on the passenger side. Smith also testified that his head hit the rearview mirror and that he received injuries to his head as a result of the accident. Smith stated that he was between 6'1" and 6'2" and weighed between 220 and 230 pounds and that he was able to crawl over Cody who he estimated to be 5'10" and between 170 and 180 pounds.
During rebuttal, Indianapolis Metropolitan Police Officer Tracy Ryan testified that Cody was sitting in the center seat, was " wedged in there pretty good," and " had to use both of his hands to pull himself from the middle seat to get out of the driver's side door." Id. at 276. Officer Ryan also testified that she recalled that Cody was wearing a red jacket but did not recall what color pants he was wearing. Indianapolis Metropolitan Police Detective Eric Snow testified as a rebuttal witness that he investigates hit and run accidents and is a reconstructionist or examines accidents to determine how they occur. Detective Snow took photographs of the scene and the vehicles and had the chance to fully observe the damage to the vehicles. The following exchange occurred during direct examination of Detective Snow:
Q. And officer were the injuries that Travis Smith described consistent with your examination of ...