*1 725 Linley E. Pearson, Atty. Gen. and Amy Sam HENDRICKS, Appellant Good, Schaeffer Deputy Atty. Gen., India- (Defendant Below), napolis, appellee. for
v.
DICKSON,
Justice.
STATE
Indiana,
of
Appellee
(Plaintiff Below).
Hendricks was convicted of class D felo
ny battery. The
No.
Court of Appeals af
54S01-9011-CR-730.
firmed. Hendricks v.
(1990),
State
Ind.
Supreme Court of Indiana.
App.,
cussed the Court of Appeals, we reach the same result. Judgment affirmed. The defendant contends that the trial court erred in admitting testimony of the investigating police officer detailing the out-of-court statements of the phy victim's sician and defendant's wife that were made to the officer in the course of his investiga tion. Reviewing the admissibility of the out-of-court assertions under Patterson v. (1975), State 55, 263 Ind. 324 482, N.E.2d the Court of Appeals found no error in the admission of the statements because the declarants' in-court testimony was consist ent with their out-of-court statements. The Court of Appeals opined that declarant "[a] must either acknowledge making prior the statement, ... or testify consistently with the out-of-court statement and then be sub ject to cross examination." 554 N.E.2d at (citations 1144 omitted). grant We trans fer to clarify this statement, which is con trary to our decision in Lambert v. State (1989), Ind., 534 N.E.2d 235. In the first of our two Lambert deci- sions, we allowed a exception Patterson to the hearsay rule because the out-of-court declarant also testified at trial "regarding specific the evidentiary matters which were the subject prior of her out-of-court asser- tions." Lambert v. (1987), State Ind., 516 16, N.E.2d 21. On rehearing, however, we found that such analysis and application of the Patterson rule was incomplete and we unequivocally stated: A party wishing to use hearsay evidence under the Patterson exeeption rule must elicit the necessary foundational testimo- Foster, Monica Indianapolis, ny from the witness regarding the out-of- for appel- * lant. court statement and its content. *2 726 PETITION ON CRIMINAL the comparison of A 237. N.E.2d at 534 TRANSFER FOR testimony to the in-court the of
content asser in the out-of-court contained details Justice, dissenting. GIVAN, excep Patterson the under tion admitted to conclude: led us tion majority the from dissent respectfully I testimony did not the victim's Because the Patter limitation of to their opinion as content and the existence acknowledge on opinion its majority cites The rule. son assertions, out-of-court purported her of v. State case of Lambert rehearing in the relating the testimony officer's police the 235, (Givan and Ind., N.E.2d (1989), 534 not was declarations out-of-court victim's Pivarnik, JJ., dissenting). excep- the Patterson under admissible in that in the dissent out pointed As was hearsay rule. to the tion at testifies case, the declarant fact that the testimony consistent in-court Mere Id. the Patterson invoke to is sufficient trial statements, despite out-of-court with the the emphasized in this is I rule. believe examina- availability of cross resulting the holds when it in this case opinion majority's sup- to foundation tion, adequate not an is but violated rule was the Patterson that ex- the Patterson admissibility under port reversi- not constitute did that the violation ception. ble error. exception is the Patterson When admission allow applied to sought to be in its correct court was the trial I think evidence, the hearsay as substantive of rule. Patterson of the application acknowl- must also declarant out-of-court the statement. having made edge PIVARNIK, J., concurs. 236. N.E.2d at 534 the out-of-court of case both In this expressly testified, neither but declarants the out-of-court having made
acknowledged thus It was to them. attributed statements state their out-of-court admit error to necessary to However, not it is ments. that find we because the conviction reverse cir under the harmless errors were such BAKER, Appellant, Robert provided content The factual cumstances. hearsay was erroneously admitted by the v. by provided that as substantially the same Indiana, Appellee. of STATE declarants. testimony the of the in-court is not hearsay evidence of admission The 82S00-8810-CR-895. No. merely it is when reversal grounds for evidence. admitted of other cumulative Indiana. of Supreme Court 1259. Ind., N.E.2d (1987), 508 v. King State 19, 1990. Nov. only addresses foregoing discussion The opin- of the II in Part the issue considered other In all Appeals. of the Court ion of Ap- of the Court of the decision respects, to pursuant summarily affirmed peals is 11(B)(8). Rule Appellate Ind. af- court is trial of the judgment
The
firmed. DeBRULER, J.,
SHEPARD, C.J., and
concur. separate J., GIVAN, with dissents PIVARNIK, J., concurs. in which
opinion