                                                                     FILED
                                                                Jan 31 2017, 7:59 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John (Jack) F. Crawford                                    Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           George P. Sherman
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Brittain,                                          January 31, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1511-CR-1784
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Grant Hawkins,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           49G05-1304-MR-27966



Brown, Judge.




Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017              Page 1 of 18
[1]   Kenneth Brittain appeals his convictions for murder and attempted murder as a

      class A felony. Brittain raises three issues which we revise and restate as:


            I.     Whether the court’s admission of deposition testimony violated
                   Brittain’s right of confrontation;

           II.     Whether the court abused its discretion in admitting deposition
                   testimony into evidence; and

          III.     Whether the court erred by denying Brittain’s motion for a mistrial.

      We affirm.


                                       Facts and Procedural History

[2]   On April 26, 2013 at approximately 10:31 p.m., Indianapolis Metropolitan

      Police Department (“IMPD”) Officer Joel Anderson responded to a call of

      shots fired in Indianapolis, Indiana, and upon arriving observed a pickup truck,

      which was still smoking, driven through the wall of an apartment building.

      Inside the truck, Officer Anderson observed a male, later identified as Timothy

      Denny, who had been fatally shot twice in the back of the head, behind the

      steering wheel. He also observed a female victim lying outside the building on

      the ground who was alive, bleeding from the face and neck area, and crying,

      and she identified herself as Victoria Richie. IMPD Officer David Carney, who

      had also arrived at the scene, spoke with Richie, who said she had been shot,

      and when asked her who did it she said “it was Bart.” Transcript at 144, 149.

      Richie gave a description of “Bart” as an African-American male with burn

      marks on his face. Id. at 149. Richie was transported to Wishard Hospital.




      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 2 of 18
[3]   IMPD Detective Greg Hagan had just “logged on,” meaning he “got on [his]

      radio and marked on duty” when he heard a dispatch about a shooting, and

      “[s]hortly thereafter” he was asked to check on one of the victims at Wishard

      Hospital. Id. at 172-173. He proceeded to “the shock room wing” at the

      hospital where he met Officer Aaron Schlesinger, who had followed the

      ambulance from the scene of the shooting. Id. at 173. After receiving an initial

      rundown from Officer Schlesinger, Detective Hagan went into the shock room

      and met Richie. Detective Hagan attempted to interview her at the hospital,

      but she had a difficult time speaking because she had been shot through the

      mouth. To accommodate her injury, Detective Hagan asked Richie to write

      down her answers to his questions on a piece of paper. Detective Hagan asked

      Richie who had shot her and she wrote down “Ken Bart.” 1 Id. at 183; see also

      State’s Exhibit 11.


[4]   Police recovered a cell phone later identified as belonging to Brittain from the

      back seat of the pickup truck. They also examined Richie’s cell phone. Police

      obtained cell tower records, text message records, and Facebook instant

      message records from the two phones, and they were able to extract the

      messages and show a pattern of activity between the phones throughout the day

      on April 26, 2013, ending at about 10:15 p.m.




      1
       In a statement to police Brittain stated his nickname was “Bart,” and that sometimes people referred to him
      as “Ken Bart.” State’s Exhibit 135.

      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017                     Page 3 of 18
[5]   On April 28, 2013, IMPD Detective Chuck Benner spoke with a confidential

      informant with whom he had been associated for at least ten years, and,

      following the conversation, he drove to a vehicle and recovered a handgun

      which was located on the front seat and had a magazine next to it. The

      handgun was identified as a Walther .22 caliber semi-automatic. Police later

      matched the gun with shell casings recovered from the pickup truck.


[6]   On April 30, 2013, the State charged Brittain with Count I, murder; and Count

      II, attempted murder as a class A felony. On January 23, 2014, Brittain’s

      defense counsel deposed Richie. Richie later died. 2 On July 29, 2015, the State

      filed a list of witnesses which included Richie by her deposition as a potential

      witness. At a pretrial conference held on July 31, 2015, the court addressed a

      motion to exclude Richie’s deposition filed by Brittain. Brittain agreed that

      Richie was “unavailable” for purposes of Ind. Evidence Rule 804, but he

      argued that its admission would violate his confrontation rights under the Sixth

      Amendment and Article 1, Section 13 of the Indiana Constitution. After

      hearing argument, the court denied his request to exclude the deposition.

      Brittain then asserted that the deposition lacked “indicia of reliability” because

      Richie “never signed or reviewed the deposition.” Transcript at 9. The State




      2
        The record is unclear as to when and under what circumstances Richie’s death occurred. The court first
      alludes to Richie’s death in an entry in the chronological case summary dated July 29, 2015, where it states:
      “Parties went over statement on what to keep in or take out to get ready for trial on Monday Victim’s
      Deposition is an issue. Defendant [sic] passed away, Hearing set 7/31/15 in the PM on more issues before
      trial.” Appellant’s Appendix at 20. A victim impact letter included in Brittain’s presentence investigation
      report indicates that Richie struggled to deal with Denny’s death and that, following a continuance in
      Brittain’s prosecution in January 2015, she committed suicide.

      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017                       Page 4 of 18
      responded that the deposition lasted nearly two hours and resulted in 110 pages

      and argued that “the fact that she was there, she was sworn to an oath to tell the

      truth and was, had every opportunity . . . to examine her,” and that accordingly

      the deposition was reliable. Id. at 10. The court again denied Brittain’s motion

      to exclude.


[7]   On September 28, 2015, the court commenced a jury trial. At trial, the State

      introduced the deposition of Richie. Brittain objected to the admission of the

      deposition, stating:

              I believe it’s a violation under the sixth amendment to the U.S.
              Constitution and Article I, Section 13 of the Indiana Constitution
              in regards to the right of Mr. Brittain to confront and cross
              examine witnesses and have a face-to-face confrontation with the
              witness and I would incorporate my previous argument and case
              law from the hearing on July 31st of this year.


      Id. at 159-160. The court overruled Brittain’s objection and allowed the State to

      read a redacted version of the deposition to the jury.


[8]   In her deposition, Richie stated that she had first met up with the person she

      knew as Ken Bart on Facebook when she posted on the website that she was

      interested in purchasing drugs in 2013. She testified that, on April 26, 2013, the

      day of the shooting, she owed Brittain $200 for cocaine and had devised a plan

      to sell or give Brittain Xanax to pay off the debt and come away with some

      additional money. She stated that she and Brittain had texted and sent

      messages using Facebook during that day and that earlier in the day Denny

      called off the meeting because he had a “bad feeling” about the place. State’s
      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 5 of 18
       Exhibit 137(a) at 63. However, Denny and Richie later decided that they

       “needed the money” and rescheduled the meeting. Id. at 76.


[9]    Richie testified that they picked up Brittain on the evening of April 26, 2013,

       that Denny was in the driver’s seat, she was in the front passenger’s seat, and

       Brittain was in the back seat, and that Brittain counted the Xanax pills and

       placed them in a bag. She stated that, afterward, she turned around and

       observed a gun pointed at her face, that Denny turned, that Brittain shot Denny

       twice in the back of the head, and that he then shot her in the face.


[10]   During the trial, Brittain objected when the State offered, as State’s Exhibit 11,

       the handwritten answers of Richie that she provided to Detective Hagan in the

       shock room of the hospital on the grounds that it was inadmissible hearsay

       testimony. The court overruled Brittain’s objection, relying upon Ind. Evidence

       Rule 801(d)(1)(C) 3, and admitted the exhibit. The following morning, the court

       returned to the subject, stating that it “went through the manual” and noted

       that the notes could only be admitted under Rule 801(d)(1)(C) “if the witness is

       present and available for cross examination.” Transcript at 263. The

       prosecutor responded that the deposition satisfied that requirement, but the

       court disagreed. The court noted that, nevertheless, it believed the notes were

       “surplusage.” Id. It stated that it could not “unring the bell,” but it instructed

       the State to “think a little bit more before you use that exception when the



       3
        Ind. Evidence Rule 801(d)(1)(C) provides that a statement is not hearsay if it “is an identification of a
       person shortly after perceiving the person.”

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017                         Page 6 of 18
       witness himself or herself is not present.” Id. at 265. Brittain moved for a

       mistrial, which the court denied.


[11]   The jury found Brittain guilty as charged. On October 16, 2015, the court

       sentenced Brittain to fifty-five years on Count I, and thirty years, with twenty-

       five years executed and five years suspended, on Count II, to be served

       consecutively.


                                                     Discussion

                                                           I.


[12]   The first issue is whether the court’s admission of Richie’s deposition testimony

       violated Brittain’s right of confrontation. Generally, we review the trial court’s

       ruling on the admission of evidence for an abuse of discretion. Noojin v. State,

       730 N.E.2d 672, 676 (Ind. 2000). However, here because the issue is one of

       constitutional law, we review Brittain’s claim de novo. See Jones v. State, 982

       N.E.2d 417, 421-422 (Ind. Ct. App. 2013) (constitutional challenges are

       reviewed de novo), trans. denied.


[13]   The Sixth Amendment to the United States Constitution, made applicable to

       the States via the Fourteenth Amendment, provides: “In all criminal

       prosecutions, the accused shall enjoy the right . . . to be confronted with the

       witnesses against him.” U.S. CONST. amend. VI. “A witness’s testimony

       against a defendant is thus inadmissible unless the witness appears at trial or, if

       the witness is unavailable, the defendant had a prior opportunity for cross-

       examination.” Lehman v. State, 926 N.E.2d 35, 39 (Ind. Ct. App. 2010) (citing

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 7 of 18
       Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004)), reh’g denied, trans.

       denied; see also Davis v. Washington, 547 U.S. 813, 821-822, 126 S. Ct. 2266

       (2006).


[14]   Brittain argues that “[e]very trial lawyer and trial judge knows that there is a

       difference between a ‘discovery’ deposition and a ‘trial’ deposition” in that

       “[t]he motives are entirely different.” Appellant’s Brief at 18. He contends that

       a “discovery deposition” is “not intended to be ‘confrontational’ because the

       deposing party wishes to encourage the witness to volunteer as much

       information as he or she can.” Id. Brittain acknowledges that the Indiana

       Supreme Court in Howard v. State, 853 N.E.2d 461 (Ind. 2006), rejected this

       difference as creating a confrontation issue, but he asserts that the deposition at

       issue in that case was “very much like a ‘trial’ deposition,” which distinguishes

       it from this case. Id. at 19. Brittain argues that


               Our Supreme Court’s rulings on this issue have put defense
               counsel in a terrible dilemma with regards to investigation and
               discovery in a criminal defense: 1) do a discovery deposition
               without knowing, of course, what the deponent is going to say
               and probe for information that would be helpful in developing a
               defense; or 2) ignore the defendant’s right for a discovery
               deposition and hope that for some reason the witness is
               unavailable at trial.


       Id. at 20. Brittain further asserts that reading Richie’s deposition into evidence

       violated the Confrontation Clause of the Indiana Constitution.




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 8 of 18
[15]   As Brittain acknowledges, the Indiana Supreme Court squarely addressed this

       issue in Howard. In that case, the Court observed that the Sixth Amendment, as

       interpreted by Crawford, “demands ‘unavailability and a prior opportunity for

       cross-examination,’” but that Crawford “provides no guidance concerning what

       ‘opportunity’ is sufficient to satisfy the demands of the Sixth Amendment.” 853

       N.E.2d at 468. The defendant in Howard made argument “[d]istinguishing

       between a ‘discovery’ deposition and a ‘trial’ deposition,” and he insisted “that

       he had no ‘adequate opportunity’ to cross-examine the child witness in this

       case.” Id.


[16]   The Court began its analysis by acknowledging the differences between so-

       called discovery and trial depositions, in which “[d]uring testimonial

       depositions, more attention is paid ‘to the form of questions . . . [and] to cross-

       examination . . . . It is not uncommon for key witnesses to be deposed twice by

       the same party, once for discovery purposes and again for testimonial

       purposes.’” Id. at 469 (quoting Henry H. Perritt, Jr., Trade Secrets: A Practitioners

       Guide, P.L.I. § 10:10.1 (2005)). In response, the Court observed that although

       the defendant asserted that the deposition was conducted purely for discovery

       purposes, it “lasted approximately two hours and resulted in ninety-two

       typewritten pages.” Id. The Court concluded based thereon that the defendant

       had not been denied his right of confrontation. Id. The Court continued with a

       second observation, which it characterized as “perhaps more important[],” that

       “Crawford speaks only in terms of the ‘opportunity’ for adequate cross-




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 9 of 18
       examination” and that “[w]hether, how, and to what extent the opportunity for

       cross-examination is used is within the control of the defendant.” Id. at 470.


[17]   Similarly, in this case Brittain’s counsel deposed Richie for a period of almost

       two hours, producing a deposition 110 typewritten pages in length. Brittain

       was afforded the opportunity to cross-examine Richie, and accordingly the

       court’s decision to admit a redacted version of the deposition did not violate

       Brittain’s right of confrontation.


[18]   To the extent that Brittain argues admitting Richie’s deposition violated his

       confrontation rights under the Indiana Constitution, 4 we disagree. The Indiana

       Supreme Court has held that the Indiana right to meet witnesses face-to-face “is

       secured where the testimony of a witness at a former hearing or trial on the

       same case is reproduced and admitted, where the defendant either cross-

       examined such witness or was afforded an opportunity to do so, and the witness

       cannot be brought to testify at trial again[.]” Berkman v. State, 976 N.E.2d 68,

       75-76 (Ind. Ct. App. 2012) (quoting Brady v. State, 575 N.E.2d 981, 987 (Ind.

       1991)), trans. denied, cert. denied, 134 S. Ct. 155 (2013). Brittain had the

       opportunity to and did cross-examine Richie, and accordingly we conclude that

       the court’s admission of Richie’s deposition did not violate Brittain’s

       confrontation rights under the Indiana Constitution.




       4
        Article 1, Section 13 of the Indiana Constitution provides, in part: “In all criminal prosecutions, the accused
       shall have the right . . . to meet the witnesses face to face[.]”

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017                       Page 10 of 18
                                                          II.


[19]   The next issue is whether the court abused its discretion in admitting Richie’s

       deposition testimony into evidence. As noted, we review the trial court’s ruling

       on the admission or exclusion of evidence for an abuse of discretion. Roche v.

       State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only where

       the decision is clearly against the logic and effect of the facts and circumstances.

       Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Even if the trial

       court’s decision was an abuse of discretion, we will not reverse if the admission

       constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

       1999), reh’g denied, trans. denied.


[20]   Brittain argues that the “basic, fundamental and rudimentary rules” of Ind.

       Trial Rule 30 were not followed in the introduction of Richie’s deposition,

       which is a rule in place to ensure that statements are recorded accurately.

       Appellant’s Brief at 14. The State argues that Brittain failed to lodge an

       objection based upon the lack of certification by the court reporter and that

       accordingly such issue is waived.


[21]   We begin by addressing whether Brittain has waived this argument. A

       contemporaneous objection at the time the evidence is introduced at trial is

       required to preserve the issue for appeal, whether or not the appellant has filed a

       pretrial motion to suppress. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010),

       reh’g denied; see also Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The

       failure to make a contemporaneous objection to the admission of evidence at


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 11 of 18
       trial results in waiver of the error on appeal.”); Wagner v. State, 474 N.E.2d 476,

       484 (Ind. 1985) (“When a motion to suppress has been overruled and the

       evidence sought to be suppressed is later offered at trial, no error will be

       preserved unless there is an objection at that time.”). The purpose of this rule is

       to allow the trial judge to consider the issue in light of any fresh developments

       and also to correct any errors. Brown, 929 N.E.2d at 207. When a defendant

       fails to object to allegedly inadmissible evidence the first time it is offered, no

       error is preserved. Jenkins v. State, 627 N.E.2d 789, 797 (Ind. 1993), reh’g denied,

       cert. denied, 513 U.S. 812, 115 S. Ct. 64 (1994); see also Moore v. State, 669 N.E.2d

       733, 742 (Ind. 1996) (“Where a defendant fails to object to the introduction of

       evidence, makes only a general objection, or objects only on other grounds, the

       defendant waives the suppression claim.”), reh’g denied.


[22]   At the July 31, 2015 pretrial conference, Brittain moved to exclude the

       deposition of Richie as a violation of his right of confrontation, and the court,

       following argument by the parties, denied his request. He then made an

       alternative motion asserting that the deposition lacked “indicia of reliability”

       because Richie “never signed or reviewed the deposition,” and the State

       responded that the deposition was reliable, noting that it lasted nearly two

       hours and resulted in 110 pages, and further that “she was there, she was sworn

       to an oath to tell the truth and was, had every opportunity . . . to examine her.”

       Transcript at 9-10. Then, when the State introduced the deposition, Brittain

       objected to its admission as follows:




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 12 of 18
               I believe it’s a violation under the sixth amendment to the U.S.
               Constitution and Article I, Section 13 of the Indiana Constitution
               in regards to the right of Mr. Brittain to confront and cross
               examine witnesses and have a face-to-face confrontation with the
               witness and I would incorporate my previous argument and case
               law from the hearing on July 31st of this year.


       Id. at 159-160. The court overruled Brittain’s objection and allowed the State to

       read a redacted version of the deposition to the jury.


[23]   Thus, Brittain’s objection at trial was limited to safeguarding his right of

       confrontation and did not reference any deficiency under the Indiana Trial

       Rules. Because he did not object at trial based upon Ind. Trial Rule 30, we

       conclude that Brittain has waived this issue on appeal. See Washington v. State,

       840 N.E.2d 873, 880 (Ind. Ct. App. 2006) (noting that “a party may not present

       an argument or issue to an appellate court unless the party raised the same

       argument or issue before the trial court” and that accordingly the issue is

       waived (quoting Crafton v. State, 821 N.E.2d 907, 912 (Ind. Ct. App. 2005))),

       trans. denied.


                                                          III.


[24]   The next issue is whether the court erred by denying Brittain’s motion for a

       mistrial regarding handwritten notes made by Richie during her interview with

       Detective Hagan which were admitted into evidence. “The granting of a

       mistrial lies within the sound discretion of the trial court, and we reverse only

       when an abuse of discretion is clearly shown.” Davis v. State, 770 N.E.2d 319,

       325 (Ind. 2002), reh’g denied. “The remedy of mistrial is ‘extreme,’ Warren v.
       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 13 of 18
       State, 757 N.E.2d 995, 998-999 (Ind. 2001), strong medicine that should be

       prescribed only when ‘no other action can be expected to remedy the situation’

       at the trial level, Gambill v. State, 436 N.E.2d 301, 304 (Ind. 1982).” Lucio v.

       State, 907 N.E.2d 1008, 1010-1011 (Ind. 2009). We afford the trial court such

       deference on appeal because the trial court is in the best position to evaluate the

       relevant circumstances of an event and its impact on the jury. Alvies v. State,

       795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans. denied. To prevail on appeal

       from the denial of a motion for a mistrial, the appellant must demonstrate the

       statement or conduct in question was so prejudicial and inflammatory that he

       was placed in a position of grave peril to which he should not have been

       subjected. Id. We determine the gravity of the peril based upon the probable

       persuasive effect of the misconduct on the jury’s decision rather than upon the

       degree of impropriety of the conduct. Id.


[25]   At trial, Brittain objected when the State offered, as State’s Exhibit 11, the

       handwritten answers of Richie that she provided to Detective Hagan on the

       grounds that it was inadmissible hearsay, and the court overruled the objection,

       relying upon Ind. Evidence Rule 801(d)(1)(C). The following morning, the

       court stated that it reviewed the evidence rules and believed that the notes could

       only be admitted under Rule 801(d)(1)(C) “if the witness is present and

       available for cross examination.” Transcript at 263. The prosecutor responded

       that the deposition satisfied that requirement, the court disagreed, but in doing

       so stated that the notes were “surplusage” of the admitted deposition testimony.

       Id. The court observed that it could not “unring the bell,” but it instructed the


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 14 of 18
       State in the future to “think a little bit more before you use that exception when

       the witness himself or herself is not present.” Id. at 265. Brittain moved for a

       mistrial, which the court overruled.


[26]   Brittain argues that the court should have excluded the notes because “Rule 801

       requires that this exception only applies where the declarant testifies at the trial

       and is subject to cross-examination,” that the court ruled the “deposition did

       not amount to testifying at the trial for the purposes of this rule,” but that

       despite this error the court did not give an admonition to the jury to disregard

       the exhibit. Appellant’s Brief at 25. The State asserts that the court was correct

       in deciding that the handwritten notes were cumulative.


[27]   Recognizing that we may affirm a trial court’s decision regarding the admission

       of evidence if it is sustainable on any basis in the record, Barker v. State, 695

       N.E.2d 925, 930 (Ind. 1998), reh’g denied, we find that the evidence was

       properly admitted and that accordingly the court did not err in denying

       Brittain’s motion for a mistrial. Hearsay is a statement, other than one made by

       the declarant while testifying at trial, offered in evidence to prove the truth of

       the matter asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless

       admitted pursuant to a recognized exception. Ind. Evidence Rule 802. An

       excited utterance is such an exception and is defined as “[a] statement relating

       to a startling event or condition made while the declarant was under the stress

       of excitement caused by the event or condition.” Ind. Evidence Rule 803(2).

       Application of this rule is not mechanical and admissibility should generally be

       determined on a case-by-case basis. Palacios v. State, 926 N.E.2d 1026, 1031

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 15 of 18
       (Ind. Ct. App. 2010) (citing Love v. State, 714 N.E.2d 698, 701 (Ind. Ct. App.

       1999), reh’g denied). Thus, the heart of the inquiry is whether the statement is

       inherently reliable because the declarant was incapable of thoughtful reflection.

       Id. (citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996)). The statement

       must be trustworthy under the specific facts of the case at hand. Id. The focus

       is on whether the statement was made while the declarant was under the

       influence of the excitement engendered by the startling event. Id. The amount

       of time that has passed between the event and the statement is not dispositive;

       rather, the issue is whether the declarant was still under the stress of excitement

       caused by the startling event when the statement was made. Mathis v. State, 859

       N.E.2d 1275, 1279 (Ind. Ct. App. 2007).


[28]   Here, IMPD Detective Greg Hagan had just “logged on,” meaning he “got on

       [his] radio and marked on duty” when he heard a dispatch about a shooting,

       and “[s]hortly thereafter” he was asked to check on one of the victims at

       Wishard Hospital. Transcript at 172-173. He proceeded to the hospital’s

       “shock room wing” where he met Officer Aaron Schlesinger, who had followed

       the ambulance from the scene of the shooting. Id. at 173. After receiving an

       initial rundown from Officer Schlesinger, Detective Hagan went into the shock

       room and met Richie. Detective Hagan attempted to interview her but she had

       a difficult time speaking because she had been shot through the mouth. To

       accommodate her injury, Detective Hagan asked Richie to write down her

       answers to his questions on a piece of paper. Detective Hagan asked Richie

       who had shot her and she wrote down “Ken Bart.” Id. at 183; see also State’s


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 16 of 18
       Exhibit 11. Under these circumstances, in which Richie had just been brought

       to the hospital after being shot through the mouth, her vocalization was

       impaired, and she was situated in the shock room, we believe that she was still

       under the stress of excitement caused by the shooting and that she was

       accordingly incapable of thoughtful reflection, and we conclude that State’s

       Exhibit 11 was admissible as an excited utterance. The court did not abuse its

       discretion when it admitted the exhibit, and it did not err in denying Brittain’s

       motion for a mistrial.


[29]   Moreover, we find that even if the court abused its discretion when it admitted

       the handwritten notes, any alleged error is harmless. Errors in the admission or

       exclusion of evidence are to be disregarded as harmless error unless they affect

       the substantial rights of the party. Lewis v. State, 34 N.E.3d 240, 248 (Ind.

       2015). To determine whether an error in the introduction of evidence affected

       the party’s substantial rights, we assess the probable impact of that evidence

       upon the jury. Id. The jury in this case heard testimony that at the scene of the

       shooting Richie told Officer Carney that “it was Bart” who shot her and that

       she described “Bart” as an African-American male with burn marks on his face.

       Transcript at 144, 149. This evidence was admitted without objection. Thus,

       the handwritten notes are largely cumulative of her statement at the scene of the

       shooting. Thus, we conclude that any alleged error is harmless. See Hennings v.

       State, 532 N.E.2d 614, 615 (Ind.1989) (holding that any error in admitting a

       recording of the victim’s highly emotional call made immediately after rape was

       cumulative of the victim’s testimony and therefore harmless); Johnson v. State,


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 17 of 18
       699 N.E.2d 746, 749 (Ind. Ct. App. 1998) (holding that the error in admitting a

       recording was harmless because the recording was cumulative of prior

       testimony).


                                                    Conclusion

[30]   For the foregoing reasons, we affirm Brittain’s convictions.


[31]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1784 | January 31, 2017   Page 18 of 18
