Anthony J. Thornton v. State of Indiana, 25 N.E.3d 800

Background

On July 27, 2013, K.W. was taken from a gas station by three men (Thornton, Dillard, Nelson), taken to an apartment in Hammond, IN, and sexually assaulted; she escaped at a stoplight, reported the rape, and later identified the three from photo arrays.
Thornton gave a voluntary statement to police saying he remained with his children in the main room while Dillard and Nelson were with the woman in the bathroom; he and Nelson later drove the woman but she exited at a CVS.
Dillard spoke with Detective Matanovich but did not testify at Thornton’s trial. The detective testified that Dillard’s account had both “somewhat” consistent elements and “major differences” from Thornton’s; when asked if they matched as to Thornton’s actions the detective said “no.”
Thornton was charged with rape, criminal deviate conduct, criminal confinement (class B), and battery with a deadly weapon. Jury convicted only on class B criminal confinement; other counts were unresolved.
Thornton objected at trial when the detective testified about Dillard’s statements on Confrontation Clause/hearsay grounds; the trial court overruled and Thornton was convicted and sentenced to 12 years (to run consecutive to another sentence).
The Court of Appeals reversed Thornton’s criminal confinement conviction and remanded, finding the detective’s testimony improperly admitted testimonial out-of-court statements (Confrontation Clause violation) and not harmless; the court also addressed prosecutorial misconduct issues for guidance on retrial.

Issues

Issue	State's Argument	Thornton's Argument	Held
Whether Detective Matanovich’s testimony about Dillard’s out-of-court statements violated the Confrontation Clause	The testimony was not hearsay because the detective did not recite the substance of Dillard’s statements; only gave non-fact opinion that statements were/weren’t consistent	Testimony was a summary/innuendo of Dillard’s testimonial statements, impermissibly substituting detective’s interpretation and denying cross-examination	Testimony was testimonial hearsay (primary purpose to gather evidence) and admission violated the Sixth Amendment and Indiana Constitution; error required reversal and remand
Whether Thornton waived the Confrontation/hearsay objection by not objecting earlier or continuing to object	Trial-level failure to object waived the issue on appeal	Thornton preserved the issue by timely objecting once the detective testified inconsistently and the objection was overruled	No waiver; objection preserved for appeal
Whether the Confrontation error was harmless beyond a reasonable doubt	The State argued any error was harmless given overall evidence	Thornton argued the innuendo evidence likely affected the jury and he couldn’t cross-examine Dillard to rebut	Not harmless: jury had acquitted/was deadlocked on other counts; cannot say beyond a reasonable doubt that error was harmless
Whether prosecutor’s closing and rebuttal arguments constituted misconduct that would harm retrial fairness	Prosecutor defended evidence gaps and appealed to victim sympathy/encouraging victims to come forward	Thornton argued prosecutor improperly blamed speedy-trial invocation for testing gaps and appealed to jury sympathy for victim	Court found the comments improper/prosecutorial misconduct; cautioned prosecutor for retrial and flagged potential fundamental error if repeated

Key Cases Cited

Lindsey v. State, 916 N.E.2d 230 (Ind. Ct. App. 2009) (standard of review for evidentiary rulings)
King v. State, 985 N.E.2d 755 (Ind. Ct. App. 2013) (Confrontation Clause: determine testimonial character by primary purpose)
Tessely v. State, 432 N.E.2d 1374 (Ind. 1982) (summaries of out-of-court conversations constitute hearsay)
Amoco Oil Co. v. Comm’r of Labor, 726 N.E.2d 869 (Ind. Ct. App. 2000) (interview summaries are hearsay)
Cornell v. Rev. Bd., 383 N.E.2d 1102 (Ind. Ct. App. 1979) (administrative summary as hearsay)
Koenig v. State, 933 N.E.2d 1271 (Ind. 2010) (harmless-error standard for constitutional error)
Ryan v. State, 9 N.E.3d 663 (Ind. 2014) (two-step prosecutorial misconduct review)
Cooper v. State, 854 N.E.2d 831 (Ind. 2006) (measure for prosecutorial misconduct and permissible jury argument)
Whitlock v. State, 576 N.E.2d 640 (Ind. Ct. App. 1991) (comments interpreted as referencing defendant’s constitutional rights can be reversible error)
Woolston v. State, 453 N.E.2d 965 (Ind. 1983) (prosecutor may not invoke victim sympathy as basis for conviction)
Hand v. State, 863 N.E.2d 386 (Ind. Ct. App. 2007) (prosecutor may not urge conviction to encourage other victims to come forward)
Crawford v. State, 669 N.E.2d 141 (Ind. 1996) (speedy-trial right is fundamental)