Buddy J. Livesay v. State of Indiana (mem. dec.), 85A02-1610-CR-2462

In July 2016 Buddy J. Livesay was tried by jury for Level 5 criminal confinement and Level 6 domestic battery (enhanced for a child witness) arising from incidents where he allegedly struck his girlfriend Gladys and confined her and her six‑year‑old son in his truck and later at the home.
A bystander called 911 about the truck incident; the caller later found a paystub with Livesay’s information and police stopped his truck and arrested him. Photographs of Gladys’ facial injuries were introduced at trial.
Rebecca (Livesay’s mother) testified for the defense with facts that conflicted with Gladys’ testimony and with statements attributed to Rebecca on the 911 recordings the State had previously produced to the defense.
The State called dispatcher Darcy Corn as an unlisted rebuttal witness to lay foundation for admission of the 911 recordings; Corn’s name had not been on the State’s pretrial witness list. The recordings were played and admitted without objection.
During the State’s rebuttal closing, Gladys shouted an emotional comment from the gallery; the defense moved for mistrial. The court admonished the jury to disregard the outburst, removed Gladys, and denied the mistrial motion.
Livesay was convicted and sentenced; he appealed arguing (1) the trial court abused its discretion by allowing the unlisted rebuttal witness (and thereby admitting the 911 recordings) and (2) the court abused its discretion by denying a mistrial after Gladys’ outburst.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of unlisted rebuttal witness & foundation for 911 recordings	State: Rebuttal witness properly allowed to lay foundation; recordings were previously disclosed and admissible	Livesay: Witness was not disclosed on pretrial list; testimony challenged Rebecca’s credibility and should have been excluded, preventing foundation for recordings	Court: No abuse of discretion; rebuttal exception applies, recordings were previously provided, testimony largely cumulative and foundational, admitted without objection
Denial of mistrial after victim’s gallery outburst during rebuttal closing	State: Admonition and removal cured any potential prejudice; jury instruction suffices	Livesay: Outburst was prejudicial and required a mistrial	Court: Denial of mistrial not an abuse; admonishment and removal were adequate to cure prejudice; defendant not placed in "grave peril"

Bradley v. State, 54 N.E.3d 996 (Ind. 2016) (standard of review for evidentiary rulings and trial court discretion)
Mauricio v. State, 476 N.E.2d 88 (Ind. 1985) (rebuttal witness exception to pretrial discovery witness‑list rule)
Liddell v. State, 948 N.E.2d 367 (Ind. Ct. App. 2011) (trial court discretion on allowing testimony from undisclosed witnesses)
Isom v. State, 31 N.E.3d 469 (Ind. 2015) (standards for granting mistrial and deference to trial court)
Lucio v. State, 907 N.E.2d 1008 (Ind. 2009) (admonition presumed to cure error unless defendant placed in grave peril)
Inman v. State, 4 N.E.3d 190 (Ind. 2014) (defendant entitled to a fair, not perfect, trial)