EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, October 1, 2012

With No Face, The State Has No Case: Court Of Appeals Of Indiana Applies Forfeiture By Wrongdoing Based On Violation Of No Contact Order

Following up on Friday's post about the Court of Appeals of Utah finding the doctrine of forfeiture by wrongdoing triggered by a husband calling his wife 276 times in violation of a no contact order, I give you the recent opinion of the Court of Appeals of Indian in Patton v. State, 972 N.E.2d 418 (Ind.App. 2012).

In Patton, Derek Patton was charged with Criminal Confinement, Aggravated Battery, Battery Resulting in Serious Bodily Injury, and, Strangulation, based upon acts that he allegedly committed against his girlfriend, April Burris. After these crimes, Burris was transported to the hospital, where she informed Officer John Rogers

that she wanted to pursue charges against Patton. Officer Rogers prepared a battery affidavit in accordance with the information that he received from Burris and reviewed it with her. Burris indicated that she understood the contents of the affidavit and signed it.


Between the date of his arrest on July 29 to posting bail in early September, Patton called Burris over 400 times from the jail in violation of a no contact order. During the first call on July 31, Patton suggested to Burris that she did not really know what happened and asked her what she had told the police. Patton told Burris that he hoped she would say that she did not know or remember what happened. Burris told Patton that her face was "broken," that she could not eat, and that she had bruises all over her body....Burris stated that she thought she was going to die, and Patton admitted that he "fu*ked up good," but urged Burris to bail him out and get a local phone number....

In a telephone call on August 3, Patton told Burris that she was his "backbone" and that he needed her to "take care of this," that with "no face" the State had "no case," and that the State had no other witnesses against him....In a call on September 4, Patton told Burris, not to "start running [her] fuc*ing mouth," that he "dared her" to say "something slick," and that she would "wish" she had never said that he talked down to her....Later that same evening, Burris left a voicemail to Patton that he was talking her down "that night" and told her that he would laugh if she "got her ass beat" and that he obviously hits women....Patton replied that he knew what she was trying to do and she could "go to hell."


At trial, Burris completely recanted her claims that Patton had caused her injuries. Burris claimed that she could not remember what she had told the police officers that night, but later testified that she had lied to the officer that night when she told him that Patton had beaten her and caused her injuries. Burris also testified that a man named "David" had beat her.

Upon the State's motion the trial judge then allowed the prosecution to introduce into evidence Burris' statements to the police officer and the battery affidavit under the doctrine of forfeiture by wrongdoing.

After he was convicted, Patton appealed, claiming, inter alia, that Burris was not "unavailable," meaning that the doctrine of forfeiture by wrongdoing could not apply. The Court of Appeals of Indiana disagreed, finding that,

at trial, Burris recanted and was very selective about what she recalled stating to various individuals. Burris testified in a very confusing manner that she did not remember telling Officer Rogers that Patton beat her, but she did remember telling the officer that Patton assaulted her because she was angry with him for not letting her take a shower and go to bed....Burris claimed that she could not remember the details of the beating and then later denied that Patton beat her at all, claiming that it was an unknown third party....

In our view, Burris's partial recollection and her denial of the specifics of the attack serves as the "insufficient recollection" required [to render a withness "unavailable]....In other words, Burris's partial and selective recollection of the events and her version of the events that changed constantly prevented her from testifying "fully and accurately." Thus, the admission of the battery affidavit was necessary not only to establish Burris's recollection at the time of the beating, but also to alleviate any confusion that Burris intentionally created at trial about what she said that night to the police officer

So, the court found that the doctrine of forfeiture by wrongdoing applied. But then, the court

agree[d] with Patton's contention that the [battery] affidavit itself should not have been admitted into evidence. Rather, it should have been read verbatim into the record. Rule 803(5) states that "[i]f admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." 

And while the court ultimately found harmless error, I'm confused by this conclusion. The court found that the doctrine of forfeiture by wrongdoing applied, meaning that Patton forfeited his hearsay objection to the admission of hearsay by Burris such as the affidavit. So, why would the State need to rely on the recorded recollection exception to the rule against hearsay and be limited by its language?



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