Michael LAMBERT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 1285 S 520.
Supreme Court of Indiana.
Feb. 23, 1989.
534 N.E.2d 235
Appellant now claims that it was improper for the trial court to assess the habitual offender enhancement upon all three convictions, and the court should have chosen one of the three convictions to which the habitual offender enhancement would attach. This of course becomes a moot question in view of this Court‘s previous finding that there was insufficient evidence to find appellant to be an habitual offender.
In assuming this position, appellant states that this Court should have required the trial court first to declare which of the felonies he was enhancing by reason of the habitual offender finding which would then automatically freeze the unenhanced sentences which he had rendered in the other two charges. He argues that when the trial court failed to do this and re-sentenced appellant under the mandate, he erroneously changed the burglary sentence to eight (8) years, the theft sentence to four (4) years, and the attempted burglary sentence to eight (8) years.
Appellant further argues that since this Court‘s prior opinion concluded by stating, “The habitual offender finding is vacated and the cause remanded for a new sentencing hearing. The convictions and sentences imposed for the burglary and attempted burglary are affirmed,” id. at 1218, that this Court obviously was sending the message to the trial court that the only sentence to be revised was the sentence for theft.
In reexamining our prior opinion, we can only conclude that the omission of the theft conviction from the final sentence was an oversight. Inasmuch as the Court had held that there was insufficient evidence to support the habitual offender finding, it was obviously our intention that all of those enhancements were to be vacated and thus all sentences were to be restated.
This Court specifically called the trial court‘s attention to Williams v. State (1986), Ind.App., 494 N.E.2d 1001, cert. denied, 481 U.S. 1054, 107 S.Ct. 2191, 95 L.Ed.2d 846 as a guide in the re-sentencing. Under the authority of Williams, the trial court had the duty to re-sentence appellant under each of the three prior convictions in accordance with the statutes as though appellant stood before him for the first time for such sentencing, disregarding of course the habitual offender finding. This the trial court did. The trial court followed the mandate of this Court and correctly re-sentenced appellant on his convictions.
The trial court is affirmed.
SHEPARD, C.J., and PIVARNIK, J., concur.
DICKSON, J., concurs in result without separate opinion.
DeBRULER, J., dissents without separate opinion.
Deborah Szczepanski, Cohen & Thiros, Merrillville, Stephen J. Senderowitz, Becker & Tenenbaum, Chicago, Ill., for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
DICKSON, Justice.
Defendant Michael Lambert was convicted of criminal deviate conduct and rape, resulting in two concurrent 25-year sentences. In his direct appeal, this Court affirmed the conviction of criminal deviate conduct and reversed the conviction of rape. Lambert v. State (1987), Ind., 516 N.E.2d 16 (Givan, J. and Pivarnik, J. dissenting to reversal of rape conviction).
Among the issues presented by defendant‘s petition for rehearing, we find merit in the contention that his conviction resulted from evidence erroneously admitted under the rule of Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, and its progeny.
At his trial, the defendant presented a strong alibi defense in the form of several apparently disinterested witnesses whose testimony regarding defendant‘s whereabouts would have precluded his involvement in the crime. The jury, however, made a finding of guilt based upon the versions of the prosecuting witness as presented by her own testimony and her prior out-of-court statements as related by other witnesses. In resolving the issue in our original opinion, we concluded:
As the proponent of the hearsay evidence, the State not only called the victim as a witness, but elicited from her the necessary foundational testimony regarding the specific evidentiary matters which were the subject of her prior out-of-court assertions. In addition, the victim underwent cross-examination upon such matters. This was a sufficient foundation to properly justify a Patterson hearsay rule exception.
516 N.E.2d at 21. We are now persuaded that our analysis and application of the Patterson rule was incomplete.
When the Patterson exception is sought to be applied to allow admission of hearsay as substantive evidence, the out-of-court declarant must also acknowledge having made the statement. When the declarant denies having made the statement in question or denies having any memory
Identification of the defendant as the victim‘s attacker substantially rested upon police testimony that the victim declared after the incident: 1) that she had seen the defendant inside a nearby van shortly after her assault; and 2) that upon being taken to the defendant‘s home, the victim said, “that‘s him, and he still has the shirt on that he had on when he raped me.” The officer testified that after the latter statement the defendant‘s driver‘s license was obtained and shown to the victim in the police squad car.
However, at no time did the victim acknowledge having made these statements to the police officer. The victim testified that she was not able to see who was driving the van and denied telling the officer that she saw the person in the van. Furthermore, the victim‘s trial testimony merely established that when she and the police officer went to the house where the van was parked, as the squad car pulled up the officer told the victim to “get low in the car, you know, to lay down on the seat.” The victim testified that when one of the officers brought her the defendant‘s driver‘s license, she had “no doubt” that the person pictured on the driver‘s license was the same person that raped her. However, she testified that she did not personally observe the defendant. Likewise, she did not acknowledge making any statement to the officer that she observed and identified the defendant as her attacker.
Because the victim‘s testimony did not acknowledge the existence and content of her purported out-of-court assertions, the police officer‘s testimony relating the victim‘s out-of-court declarations was not admissible under the Patterson exception to the hearsay rule. Under the circumstances presented by the record in this case, we cannot find these errors harmless. A new trial is therefore appropriate to fairly determine the guilt of the defendant.2
Defendant‘s petition for rehearing is granted. Defendant‘s conviction of criminal deviate conduct is reversed, and this cause is remanded to the trial court for a new trial thereon.
SHEPARD, C.J., and DeBRULER, J., concur.
GIVAN, J., dissenting with opinion in which PIVARNIK, J., concurs.
GIVAN, Justice, dissenting.
I respectfully dissent from the majority opinion on a petition for rehearing. The matters recited in the majority opinion were placed before the jury for its consideration.
I do not agree that the trial court violated the Patterson rule. The very purpose for the witness being available for cross-examination after an out-of-court statement is placed before the jury is to verify such
I would affirm appellant‘s conviction.
PIVARNIK, J., concurs.