Sean A. Kubiak v. State of Indiana (mem. dec.)
71A04-1609-CR-2187
| Ind. Ct. App. | Aug 29, 2017Background
- On December 20, 2015, Officer Robert Anton pursued a white van that ran a traffic signal; the van struck a median, lost passenger-side wheels, spun, then fled and later stopped.
- Officer Anton observed two occupants; the passenger (Angela) appeared "afraid" and shortly thereafter identified Sean Kubiak as the driver.
- Anton later saw a man he recognized as the driver flee the van and later matched the driver to Kubiak’s photo and found prescription bottles bearing Kubiak’s name in the van.
- Kubiak was charged with operating a vehicle while privileges forfeited for life (Level 5 felony) and resisting law enforcement (Level 6 felony); the State also moved to revoke Kubiak’s probation in a separate cause.
- At trial the court admitted Angela’s out-of-court identification as an excited utterance and allowed Officer Anton to testify he had previously observed Kubiak driving the same van; Kubiak stipulated his privileges were suspended for life.
- A jury convicted Kubiak on both counts in F6-48 and the trial court revoked probation in FC-231; Kubiak appealed arguing (1) erroneous admission of Angela’s statement, (2) improper admission of prior-observation testimony under Evid. R. 404(b), and (3) insufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kubiak) | Held |
|---|---|---|---|
| 1. Admissibility of Angela’s out-of-court ID (excited utterance) | Angela’s identification was spontaneous, made under stress of the crash, and thus falls under Evid. R. 803(2) | The statement was hearsay, unreliable, and not a true excited utterance; admission prejudiced defendant | Court affirmed admission: statement was excited utterance and trial court did not abuse discretion |
| 2. Admission of officer’s testimony that he previously saw Kubiak driving the van | Prior observation bolsters identity and was limited to showing the same vehicle/driver, not a prior bad act | Testimony was improper prior-bad-act evidence under Evid. R. 404(b) and prejudicial | Court held testimony was not 404(b) evidence and was properly admitted to support identity |
| 3. Sufficiency of the evidence to convict and revoke probation | Combined identification evidence (Anton’s observations, prior observation, Angela’s excited utterance, Kubiak’s photo match, prescription bottles, stipulation re: suspension) sufficed for a reasonable jury | Identification evidence was unreliable; camera did not show driver; testimony should be discounted | Court affirmed: viewing evidence most favorably to verdict, a reasonable jury could find guilt beyond a reasonable doubt |
Key Cases Cited
- McManus v. State, 814 N.E.2d 253 (Ind. 2004) (trial court’s evidentiary rulings reviewed for abuse of discretion)
- Fowler v. State, 829 N.E.2d 459 (Ind. 2005) (elements and admissibility of excited utterance; 15-minute delay found permissible)
- Small v. State, 736 N.E.2d 742 (Ind. 2000) (failure to object on Confrontation Clause grounds waives that claim on appeal)
- Guilmette v. State, 14 N.E.3d 38 (Ind. 2014) (standard for abuse of discretion review)
- Leonard v. State, 73 N.E.3d 155 (Ind. 2017) (standard for sufficiency review)
- Giles v. California, 554 U.S. 353 (2008) (discussed in context of hearsay rules and confrontation issues)