FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                 GREGORY F. ZOELLER
Office of the Public Defender                   Attorney General of Indiana
Crown Point, Indiana
                                                BRIAN REITZ
                                                Deputy Attorney General

                                                                              FILED
                                                Indianapolis, Indiana

                                                                          Jun 18 2012, 9:46 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                   CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




SHEPELL ORR,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 45A03-1107-CR-308
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1001-MR-1




                                       June 18, 2012



                                OPINION - FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issue

       Following a jury trial, Shepell Orr appeals his two convictions of murder, which are

felonies. He raises a single issue, which we restate as whether the trial court committed

reversible error in allowing the State to attempt to impeach a witness with extrinsic evidence

of a prior inconsistent statement. Concluding the trial court did not reversibly err, we affirm.

                                Facts and Procedural History

       On December 30, 2009, as Orr was leaving an apartment building of a friend and

while he was walking past Tyray Tolbert, LaTonya Burnette, Steven Williams, and Joshua

Haywood, a verbal dispute arose between Williams and Orr. Orr retrieved a gun from his

truck and opened fire. Tolbert and Burnette ran, and Williams and Haywood were soon

found dead with eleven total gunshot wounds.

       The State charged Orr with two counts of murder. At the jury trial, Burnette testified

that she did not see a gun or altercation that night and only heard gunshots. Apparently this

conflicted with what Burnette told others on the night of the incident. Following a hearing

outside the presence of the jury, the State called Michelle Jones to testify regarding what

Burnette told Jones on the night of the incident. In addition, one of Orr’s fellow inmates

while Orr awaited trial testified that Orr admitted to him that he committed the murders. The

jury found Orr guilty as charged and, following a hearing, the trial court entered a judgment

of conviction as to both counts of murder and sentenced Orr to two consecutive terms of

fifty-five years, for a total of one hundred and ten years. Orr now appeals his convictions.

Additional facts will be supplied as appropriate.


                                               2
                                    Discussion and Decision

                                     I. Standard of Review

         A trial court has “inherent discretionary power” in determining the admission of

evidence, and we review its decisions for an abuse of discretion. Vasquez v. State, 868

N.E.2d 473, 476 (Ind. 2007) (quotation omitted). When a defendant fails to make a

contemporaneous objection to the admission of evidence at trial, however, any error is

generally waived for purposes of appeal. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.

2000).

         The purpose of requiring a contemporaneous objection is to afford the trial court an

opportunity to make a final ruling on the matter in the context which the evidence is

introduced. Id. This is why, for example, pointing to a motion to suppress, a hearing

thereon, or other similar hearing, does not satisfy this requirement. See id. Similarly, the

rule allows trial court judges to consider the issues in light of any fresh developments – in the

law, facts of the case, or anything related to the trial itself – as may be appropriate, and to

correct any errors in prior rulings on the issues. Brown v. State, 929 N.E.2d 204, 207 (Ind.

2010).

         Nonetheless, Orr makes the following statement in a footnote of his appellate brief:

             [Michelle] Jones[,] [the witness whose testimony Orr now challenges,] was
         the first witness to testify on May 6, 2011. Late the previous afternoon, after
         the jury was excused, the trial court conducted a lengthy hearing on the hearsay
         and impeachment issues that would surface when Jones testified. In that
         hearing, counsel for Orr noted that Burnett [sic] had never been confronted
         with her purported statements to Jones, a foundational requirement for
         impeachment. The trial court summarily rejected that argument . . . .


                                                3
            When Jones testified first thing the following morning before the jury, no
        objection was then lodged by Orr to Jones’ testimony about Burnett’s [sic]
        hearsay statements. Orr contends, however, the hearing conducted at the close
        of business the previous afternoon sufficiently demonstrated Orr’s objection to
        admission of the statements for impeachment purposes and the trial court’s
        clear opportunity to address same. In short, Orr contends that the previous
        day’s hearing contains his “contemporary” objection to the admission of the
        testimony at issue her. [sic]

Brief of Appellant at 5-6 n.2 (citations to transcript omitted).

        At the hearing to which Orr refers, the trial court stated:

        I’m going to keep that [(its decision concerning the issue Orr now raises)] as a
        ruling right now. I will give you until Michelle [Jones] testifies to give me
        case law of some sort that would suggest to me otherwise. The issue is not
        closed. I mean, everything that I’m talking about is open for further discussion
        and that’s how I typically run things. Make the offer of proof and we will go
        forward.

Transcript at 635.

        Orr’s attorney responded: “I would – before we put Michelle [Jones] on, I will make

my offer to prove about that . . . .” Id. But Orr’s attorney did not object or make an offer of

proof the next day, either before or during Jones’s testimony.1, 2

        Upon considering the rationale for the rule requiring an objection be contemporaneous

(and especially in light of the trial court’s explicit reminder that Orr must raise the issue

again), we conclude that Orr’s statements on the matter at an earlier hearing do not constitute

a contemporaneous objection. Where a party fails to object at the time statements are


        1
          At the end of Jones’s direct examination by the State, Orr’s counsel reminded the trial court to give
the jury a limiting instruction, which it did. See id. at 649.
        2
         We note that Orr somewhat confuses the issues by referring to an offer of proof. An offer of proof is
made by the proponent of evidence when the trial court declines to allow certain items or statements into
evidence. Evid. R. 103(a)(2). Whereas an objection is made by a party challenging the admission into

                                                      4
introduced into evidence, any error in allowing statements into evidence must rise to the level

of fundamental error to warrant reversal. Brown, 929 N.E.2d at 207. Fundamental error is

an exception to the general rule requiring contemporaneous objection that is “extremely

narrow, and applies only when the error constitutes a blatant violation of basic principles, the

harm or potential for harm is substantial, and the resulting error denies the defendant

fundamental due process.” Id. This exception applies only to “egregious circumstances,”

and must either “make a fair trial impossible” or constitute “clearly blatant violations of basic

and elementary principles of due process.” Id. (citations omitted). Anything less than

fundamental error is, in this case, harmless error and not grounds for reversal. See Munford

v. State, 923 N.E.2d 11, 17 (Ind. Ct. App. 2010).

               II. Extrinsic Evidence of Prior Inconsistent Statement of Witness

        Orr argues on appeal that the State failed to satisfy a prerequisite for introducing

extrinsic evidence of a prior inconsistent statement of Burnette. The specific extrinsic

evidence Orr challenges is testimony by Michelle Jones. As noted above, this issue was

anticipated and discussed at a hearing on the record and outside the presence of the jury after

Burnette’s testimony and prior to Jones’s testimony. At the close of this hearing, the trial

court decided that Jones would be allowed to testify regarding what Burnette told Jones on

the night of the incident. Essentially, Orr now complains that while Burnette testified she

was not confronted with the statements she apparently made to Jones and given an

opportunity to explain or deny the same.


evidence of certain items or statements. Evid R. 103(a)(1). An offer of proof is irrelevant to this appeal.

                                                      5
       The relevant rule, Indiana Evidence Rule 613(b), provides:

       Extrinsic evidence of a prior inconsistent statement by a witness is not
       admissible unless the witness is afforded an opportunity to explain or deny the
       same and the opposite party is afforded an opportunity to interrogate the
       witness thereon, or the interests of justice otherwise require. This provision
       does not apply to statements of a party-opponent as defined in Rule 801(d)(2).

       It is notable that Burnette was not confronted at or before trial with the statements she

made to Jones, but Rule 613(b) does not require Burnette actually explain or deny the prior

inconsistent statement. Rather, the rule requires Burnette to have been “afforded an

opportunity” to do so, or that the “interests of justice otherwise require.” Id. The

significance of these two portions of the rule warrant further discussion.

       First, Evidence Rule 613(b) generally requires Burnette to have been afforded an

opportunity to explain or deny the prior inconsistent statements of which the admission into

evidence is at issue, but the rule does not specify the timing of that opportunity. Our research

has not revealed an Indiana appellate opinion on the timing aspect of this rule, but federal

courts have discussed this issue in great detail. Because of the similarity between the Indiana

Rules of Evidence and the Federal Rules of Evidence, a federal court’s interpretation of the

Federal Rules of Evidence “may be of some utility.” Palacios v. State, 926 N.E.2d 1026,

1032 n.3 (Ind. Ct. App. 2010) (citation omitted).

       In addressing this issue, federal courts have consistently held that the “opportunity to

explain or deny the prior inconsistent statement” requirement may be satisfied if the witness

is “permitted – at some point” to do so. U.S. v. Young, 86 F.3d 944, 949 (9th Cir. 1996). As

relevant here, a party who is able to recall a witness to explain or deny prior statements


                                               6
cannot later object on the basis of Rule 613(b). Id.; see U.S. v. Della Rose, 403 F.3d 891,

903 (7th Cir. 2005) (“But the rule [(Federal Rule of Evidence 613(b))] itself says only that

the witness must have the opportunity to explain or deny his prior statement; it does not say

that he must be given that opportunity before extrinsic evidence of the statement is admitted.

Thus, the fact that Britz had not been asked about his statement to DeFrancesco on cross-

examination did not necessarily preclude the defense from eliciting testimony from

DeFrancesco about the statement; the government could have brought Britz back to the stand

in its rebuttal case and asked him about the statement at that time.”) (emphasis in original)

(citation omitted). The Eleventh Circuit Court of Appeals stated:

       Traditionally, prior inconsistent statements of a witness could not be proved by
       extrinsic evidence unless and until the witness was first confronted with the
       impeaching statement. Rule 613(b) modifies this approach, however, by
       merely requiring that the witness be provided an opportunity to explain the
       statement at some point in the proceedings. There need be no particular
       sequence or timing, so long as the witness has that opportunity to explain the
       statement. . . .
       . . . Rule 613(b) does not supplant the traditional method of confronting a
       witness with his inconsistent statement prior to its introduction into evidence
       as the preferred method of proceeding. In fact, where the proponent of the
       testimony fails to do so, and the witness subsequently becomes unavailable, the
       proponent runs the risk that the court will properly exercise its discretion to not
       allow the admission of the prior statement. For this reason, most courts
       consider the touchstone of admissibility under Rule 613(b) to be the continued
       availability of the witness for recall to explain the inconsistent statements.


Wammock v. Celotex Corp., 793 F.2d 1518, 1521-22 (11th Cir. 1986) (emphasis in original)

(citations omitted).




                                               7
       Indiana appellate courts have not opined on this issue directly.3 But the federal

approach makes sense and is consistent with Indiana appellate opinions regarding a similar

issue. For instance, in Clark v. State, 808 N.E.2d 1183 (Ind. 2004), our supreme court held

that a criminal defendant’s right to an opportunity to cross-examine and confront a witness

face-to-face was not violated because the defendant could have recalled that witness to

confront and question him regarding a statement introduced into evidence after the witness

testified. Id. at 1190. In Fowler v. State, 829 N.E.2d 459, 465 (Ind. 2005), cert. denied, 547

U.S. 1193 (2006), also addressing the confrontation clause, the supreme court concluded that

even though the witness left the stand without the defendant’s cross-examination, the

defendant’s failure to explain why he could not have recalled the witness left his appellate

challenge wanting.

       Therefore, we conclude that under Indiana Evidence Rule 613(b), a witness’s requisite

“opportunity to explain or deny” a prior inconsistent statement may be satisfied at any point

in the proceedings, with two caveats. The first caveat is that, as stated in Wammock, the

traditional method of confronting a witness with the statement before extrinsic evidence is

introduced into evidence remains the preferred method. The second caveat, as explained

more fully below, is that the trial court has wide discretion in this matter. Indeed, as the rule

states, the trial court should rule as “the interests of justice” require.

       Further, as relevant here, the record reflects that Orr’s trial attorney was aware of and,

at least for a time, considered recalling Burnette as a witness:


       3
           We note that the Indiana Practice Series suggests that the federal approach would be appropriate in

                                                      8
        THE COURT: Is Burnette excused?
        [Orr’s trial attorney]: We have to wait until after Michelle Jones testifies.
        [State]: Frankly, Judge, I was – from my perspective, I’m not going to call her
        again, so it’s up –
        [Orr’s trial attorney]: But I may have to depending on what Michelle Jones is
        going to try to say LaTonya Burnette said certain things. [sic]

Tr. at 612. Our holding here is not a departure from the current law or practice in Indiana

state courts. We merely clarify the proper – and preferred – procedure under Rule 613(b).4

        We now discuss a second, significant portion of Indiana Evidence Rule 613(b), the

clause which qualifies the general inadmissibility of extrinsic evidence of a prior inconsistent

statement unless “the interests of justice otherwise require.” The Regional Advisory

Committee Commentary states:

        Indiana Rule 613 adopts in major part the text and grammatical style of
        [Federal Rules of Evidence] 613, and its precursor in the [Uniform Rules of

Indiana. See 13 Ind. Prac. Evidence § 613.201 (3d ed. 2011) (citing Della Rose).
        4
            Orr relies on Hilton v. State, 648 N.E.2d 361 (Ind. 1995), disapproved of on other grounds by State
v. Wilson, 836 N.E.2d 407, 409-10 (Ind. 2005). Hilton states that Rule 613(b) requires a witness be given an
opportunity to answer a “question [which] adequately calls the [prior inconsistent] statement to the witness’s
attention and enables him to form a sufficient recollection.” (citation omitted). Hilton does not discuss the
sequence of such questioning. Nor does Hilton explicitly state whose burden it is to ensure that an opportunity
is taken advantage of.
          Hilton approaches the issue from an angle different than that of Orr. In Hilton, the trial court refused
to allow the defendant to introduce extrinsic evidence to impeach the State’s witness; in Orr’s case, the trial
court allowed the State to introduce extrinsic evidence to impeach its own witness. In Hilton, the defendant
did not cross-examine a State’s witness in such a way as to call attention to that witness’s prior inconsistent
statement, and the trial court declined to allow the defendant to introduce extrinsic evidence of that witness’s
prior inconsistent statement. That decision was within the trial court’s discretion. Hilton does not discuss the
facts surrounding that decision and the supreme court opinion upholding that decision does not bind us here.
Admittedly, Orr would have had no reason to cross-examine Burnette in such a way as to call Burnette’s
attention to her prior inconsistent statement because Burnette’s testimony supported Orr’s theory of the case.
The trial court exercised its discretion in allowing the State to introduce extrinsic evidence (in the form of
Jones’s testimony) of Burnette’s prior inconsistent statement, and then Orr had both an opportunity to cross-
examine Jones (to mitigate the effect of her testimony) and to recall Burnette as a witness (to rebut Jones’s
testimony attacking Burnette’s credibility). Orr’s decision to not recall Burnette might have been a matter of
trial strategy, and a reasonable one at that. In any event, the trial court appears to have properly exercised its
discretion in Orr’s case, just as it apparently properly exercised its discretion in a different way in Hilton.
Hilton is not helpful to Orr’s cause on appeal.

                                                        9
        Evidence] 613. As adopted, Rule 613 represents a substantial change in
        Indiana law as reflected in the common law. Rule 613 moves away from the
        formalistic, and sometimes mechanical, approach to the impeachment process,
        and provides greater flexibility to the practitioner and the trial court in utilizing
        and regulating the use of prior statements during witness testimony.

13A Ind. Prac., Indiana Evid. App. B R 613 (3d ed. 2011).

        Trial courts have discretion to admit extrinsic evidence of the prior statement even if

the impeachee had no opportunity to explain or deny or if the adverse party had no

opportunity to question the statement. 13 Ind. Prac., Indiana Evidence § 613.202 (3d ed.

2011). Trial courts also have discretion to require an impeachee’s opportunity to explain

precede admission of extrinsic evidence of the prior statement. Evid. R. 613(b); see Evid. R.

611(a); see also Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 332 at

519-20 (2nd ed. 1994) (“Occasionally, . . . courts still insist on laying the foundation first,

and it seems probable that they have authority to do so under FRE 611.”) (quoted in Della

Rose, 403 F.3d at 903). In determining whether to require a specific sequence, trial courts

should consider: the trial court’s inclination to allow the impeachee to be recalled as a

witness to explain, the witness’s availability to be recalled, the likelihood of unfair prejudice

from repetition of evidence admissible only for impeachment, 13 Ind. Prac., Indiana

Evidence § 613.202, and other factors, for example, the importance of the credibility of the

impeachee to the resolution of the case.5

        Here, the trial court allowed Jones to testify before Burnette was confronted with an


        5
          This last factor, the importance of the credibility of the impeachee to resolution of the case, might
become relevant in appellate consideration of whether a trial court’s abuse of discretion warrants reversal or
constitutes harmless error because sufficient, independent evidence of guilt was presented.

                                                     10
opportunity to explain or deny her statement to Jones. Orr concedes that “the evidence

complained of here . . . generally tracks other evidence heard by the jury – the testimony of

Tyray Tolbert, who was Burnett’s [sic] companion that evening and who placed Orr at the

scene, with a gun, making homicidal threats.” Br. of Appellant at 7. He argues that Tolbert’s

credibility at trial was questionable though, and that when Jones impeached Burnette’s

credibility, Tolbert’s was also bolstered, to Orr’s detriment. But this scenario, which is

unfortunate for Orr, would have been the case even if the State laid the foundation for

Jones’s testimony, as Orr seeks and Jones testified, in his view, properly. This scenario that

Orr describes is not a direct result of the trial court’s discretionary decisions, and therefore,

we cannot conclude that it exercised its discretion in a manner that warrants reversal.6

        For these reasons, we conclude Orr has failed to demonstrate the trial court committed

an error which made a fair trial impossible or constitutes clearly blatant violations of basic

and elementary principles of due process.

                                                 Conclusion

        The trial court did not commit fundamental error in allowing Jones to testify regarding

a prior inconsistent statement by Burnette. Therefore, we affirm.

        Affirmed.

BAILEY, J., and MATHIAS, J., concur.




        6
          Orr also seems to argue that the trial court’s limiting instruction to the jury was inadequate. He did
not object to the adequacy at trial, and as a result, he has waived this error for our review. See Stahl v. State,
616 N.E.2d 9, 13 (Ind. 1993).

                                                       11
