[Copyrighted Material Omitted]
Appeal from the Marion Superior Court, No. 49G20-1211-FB-76812. The Honorable Steven R. Eichholtz, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1304-CR-365.
ATTORNEYS FOR APPELLANT: Michael R. Fisher, Ruth A. Johnson, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Stephen R. Creason, Michael G. Worden, Deputy Attorneys General, Indianapolis, Indiana.
Massa, Justice. Rush, C.J., and Dickson, Rucker, and David, JJ., concur.
Shawn Blount appeals his conviction for being a serious violent felon in possession of a firearm, arguing (1) the trial court erred by admitting a detective's testimony that a witness identified Blount as the suspect, and (2) he was prejudiced by a material variance between the allegations against him and the proof used to convict him. We are asked to decide whether the detective's testimony was inadmissible hearsay; finding it was, we hold the trial court abused its discretion by admitting it. Nevertheless, because we conclude the error was harmless and find no variance between the charging information and the evidence presented at trial, we affirm Blount's conviction.
Facts and Procedural History
Detective Terry Smith was conducting surveillance in the parking lot of the Best Inn, a motel on the south side of Indianapolis when he saw two black men leave a motel room. One of the men, who wore a black hoodie with white writing and dark pants, proceeded down a sidewalk that wrapped around the building; the other, who wore a grey sweatshirt, stopped and waited for a woman before following the same path.
A few seconds later, Detective Smith heard yelling and saw the man in the grey and the woman quickly walk away from the building while looking behind them. He then watched the man in the black hoodie step out from behind the building with his arm pointing downward at a forty-five degree angle. From a distance of about twenty-five to thirty-five yards, through a chain link fence and some brush, Detective Smith saw a muzzle flash and heard gunfire. Although he could not see the gun, he had a clear view of the man from the chest up and saw no one else nearby.
Detective Nicholas Andrews was also conducting surveillance in the area; he too heard the shot and immediately called Detective Smith, who told Detective Andrews he had seen the shooter. After learning witnesses had called 911 to report the gunman went to Room 150, the two detectives went to the motel front desk and obtained the key to that room. As the detectives approached Room 150, Rickee Brock, who Detective Smith knew from previous police work in the area, exited and ran upstairs. Inside the room, the detectives found no people, but they did notice a large pair of men's sneakers.
The detectives proceeded upstairs, where a witness told them Brock ran into Room 240. When no one answered the door, the detectives forced it open and found Brock, her four- or five-year-old son, and two other women inside the room. In response to questioning, Brock and her son each gave the detectives the shooter's nickname: " Big D." They did not tell the detectives his real name or location.
When Detective Smith returned to the place where he had seen the weapon fired downward, he found a hole in the ground and recovered a spent bullet. Meanwhile, Detective Andrews investigated the nickname " Big D" and matched it to the defendant, Shawn Blount. Detective Andrews then used a picture of Blount, along with the pictures of five other men with similar appearances, to create a photo array. Back at the office, approximately two and a half hours after the incident, he presented the photo array to Detective Smith, who positively identified Blount as the shooter. Based upon Detective Smith's identification, the officers obtained a warrant for Blount's arrest, and he was apprehended about a month later.
The State charged Blount with a Class B felony, alleging: " on or about November 1, 2012," Blount was a serious violent felon who knowingly possessed a firearm in violation of Indiana Code section 35-47-4-5 (2008). App. at 29. In a police interview and again at trial, Blount conceded he was at the motel on November 1 and ran into Room 150 when the gun was fired. He also admitted to handling the gun in the past, stating he regularly " put the gun up" and may even have done so the week of November 1. Tr. at 194. But Blount insisted he was not the shooter; rather, the shooter was another man who looked like him and had a similar nickname, " Bigs." Blount said " Bigs" shot the ground by Blount's feet because he was upset with Blount over money. Detective Andrews testified he conducted follow-up investigation on " Bigs" using Blount's description of a location, a house, and a car. But after going to the location personally, meeting with the district's narcotics officers, and searching the nickname and gang databases, Detective Andrews was unable to find any evidence that " Bigs" ever existed.
Neither Rickee Brock nor her son testified, but the State asked Detective Smith about the information he obtained from them. Defense counsel objected to that question as calling for hearsay testimony. The State argued the statements were not being offered for their truth but rather as course-of-investigation evidence to explain how the officers identified Blount. The trial court, over defense counsel's continued objection, allowed the testimony but only in " general terms" rather than " her direct statements." Tr. at 76. Detective Smith then testified as follows:
Q And I'm sorry officer, just in case the jury didn't hear you. Did she provide you with a nickname of somebody that she believed fired the weapon?
A Yes, she did.
Q Okay, and did the--the four or five year old as well say ...