MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                  Jul 07 2020, 8:45 am

court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Taylor-Price                                 Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Dewell Simpson,                                  July 7, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2151
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff,                                      Judge
                                                         The Honorable Anne Flannelly,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1905-F5-18105



Robb, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020                           Page 1 of 11
                                Case Summary and Issue
[1]   Following a jury trial, Gregory Simpson was found guilty of battery by means

      of a deadly weapon, a Level 5 felony, and was subsequently found to be an

      habitual offender. Simpson appeals, raising one issue for our review which we

      restate as whether the trial court abused its discretion in excluding certain

      evidence. Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   On May 8, 2019, Simpson and his cousin, Jessie Stewart, attended a family

      barbeque. Everyone was “laughing and joking, having fun, [and] drinking.”

      Transcript, Volume 2 at 90. After a few hours, Simpson got in his truck to leave

      and Stewart asked where he was going. Simpson responded, “[C]ome and ride

      with me cuz[,]” id. at 93, and Stewart got in the truck. Before they left, Simpson

      asked a woman standing nearby if she wanted a sandwich he had in his truck,

      but she declined. The woman’s last name was also Stewart, but she was not

      related to Jessie. Stewart was not sure if Simpson “was just making

      conversation with her to get her attention or what[,]” id. at 94, but at some

      point, he joked with Simpson, saying “she laughed at you about that . . .

      sandwich that you offered her,” id. at 95.


[3]   The two men then drove to a nearby restaurant to meet a man who had asked

      Simpson to check the brakes on his car. When Simpson finished inspecting the

      vehicle, Simpson and Stewart left. While they were driving, Simpson said,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020   Page 2 of 11
      “don’t mess with the sandwich” and Stewart responded jokingly, “Well, if

      nobody wants it. The female already told you she didn’t want it[.]” Id. at 96.

      Simpson mumbled to himself, “I can’t stand you, I’ll kill you. I’ll kill all you

      Stewarts.” Id. at 95. Stewart asked, “[W]hy do you want to do something like

      that?” and Simpson hit Stewart in the face with his fist. Id. at 97. Stewart hit

      Simpson back a couple of times and asked Simpson to pull over and let him

      out. Simpson did not pull over; instead, he sped up, grabbed a sharp object with

      a blade,1 and repeatedly swung it at Stewart. When Simpson slowed down for a

      red light, Stewart escaped from the vehicle and called 911. Stewart had cuts on

      his hand, wrist, and face. Emergency personnel responded and took Stewart to

      the hospital where he identified Simpson as his assailant.


[4]   The State charged Simpson with battery by means of a deadly weapon, a Level

      5 felony, and later added an habitual offender enhancement alleging Simpson

      had three prior unrelated felony convictions. On July 29, 2019, while Simpson

      was in jail awaiting his jury trial that was set to begin on August 1, he placed a

      phone call during which he explained his version of events. Simpson said that

      Stewart went through his glove compartment, stole his change, and initiated the

      fight between the two, forcing Simpson to use the sharp object to hit Stewart.

      See id. at 141-42. The day before Simpson’s jury trial, Simpson and the State

      signed a stipulation to the “following facts”:




      1
       Stewart referred to the sharp object as a machete, but Simpson identified it as a lawnmower blade. See id. at
      97, 150.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020                      Page 3 of 11
        1. Deputy John D. Nelson is a keeper of records for the inmate
           call records of the Marion County Sheriff’s Office.


        2. Telephone calls made by all inmates in the custody of the
           Marion County Sheriff’s Department are digitally recorded.


        3. All such calls are recorded except those which are specifically
           designated as “attorney phone calls” and which are therefore
           protected by the attorney-client privilege.


        4. All inmates are notified that the calls are recorded and/or
           monitored by way of the Inmate Handbook and by an
           automated message played at the beginning of each call.


        5. These calls are held in a database, access to which is limited
           to authorized individuals only.


        6. These calls are maintained in digital form and cannot be
           altered in any way; the unique software necessary to listen to
           these calls does not allow tampering or alteration in any way.


        7. Deputy John D. Nelson has a duty to maintain these calls to
           ensure they are secure and accurate.


        8. The recordings of all calls are created as the calls are made,
           and it is the regular practice of the Marion County Sheriff’s
           Office to do so.


        9. Gregory Simpson was in the Marion County Jail on July 29,
           2019.


        10. On July 29, 2019, Gregory Simpson called telephone number
           317-4xx-xxx8.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020   Page 4 of 11
              11. John D. Nelson listened to the call and verified the call from
                 Gregory Simpson to 317-4xx-xxx8 on July 30, 2019 and it is a
                 secure and accurate copy.


              12. State’s Exhibit 12 is a true and accurate copy of the jail phone
                 call from Gregory Simpson on July 29, 2019.


              13. This stipulation is binding upon the parties and is irrevocable upon
                 execution, and all items of evidence referenced herein are admissible
                 into evidence in this cause.


      Appellant’s Amended Appendix, Volume II at 197-98 (emphasis added).


[5]   Simpson’s counsel did not intend to call Simpson as a witness at trial, nor did

      he anticipate calling any other witnesses. Instead, after the State rested,

      Simpson’s counsel moved to admit into evidence the audio recording of

      Simpson’s jail call pursuant to the stipulation. The State objected on the basis

      that it “would be inadmissible hearsay for [Simpson] to be able to play his own

      jail call as a statement.” Tr., Vol. 2 at 138. Although the State “inten[ded] to

      play the jail call if [Simpson] had testified [and] consider[ed] playing it in [its]

      case in chief,” it decided against it. Id. The State further explained that it

      believed the parties were stipulating to the recording’s authenticity – that “for

      purposes of an objection that the call was not authentic, that we would not need

      to call the keeper of the record. That we were stipulating to the fact that the call

      was, in fact, made.” Id.


[6]   Simpson’s understanding, however, was that because “we redacted out [what]

      we agreed [was] inadmissible,” the stipulation was to the “admissibility and not

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020       Page 5 of 11
      mere authenticity[.]” Id. at 139. The stipulation did not mention a redacted

      version of the jail call. The redacted version of the jail call was played for the

      trial court outside the presence of the jury. The trial court ruled the redacted

      audio recording was inadmissible, explaining that “the defense cannot put into

      evidence, in lieu of the defendant’s testimony, inadmissible hearsay through

      any type of stipulation here.” Id. at 144.


[7]   The trial court asked how Simpson would like to proceed, and he asked and

      was allowed to make a record about the exclusion. Simpson argued the State’s

      position was “prejudicial to Mr. Simpson’s right to a defense under the United

      State’s [sic] Constitution” because “we prepared our case in reliance upon this

      stipulation and reliance upon that jail call coming in.” Id. at 145. The State

      responded that the stipulation was executed “last evening – I believe it was

      around 5:30[,]” and that exclusion was not prejudicial to Simpson in any way.

      Id. at 146. Simpson agreed with the State’s timeline, but again argued that but

      for the stipulation, “we would have spent more time preparing Mr. Simpson’s

      direct testimony.” Id. at 147. The trial court then asked defense counsel if he

      would like to speak with Simpson about whether or not he was going to testify.

      Defense counsel briefly conferred with Simpson and requested thirty minutes to

      prepare Simpson to testify, which the trial court granted.


[8]   After the thirty-minute recess, Simpson testified to the same version of events

      that he had related in the jail call. At the conclusion of the evidence, the jury

      found Simpson guilty of battery by means of a deadly weapon, a Level 5 felony,

      and subsequently found him to be an habitual offender. The trial court

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020   Page 6 of 11
       sentenced Simpson to twelve years to be served in the Indiana Department of

       Correction, with five years suspended. This appeal followed.



                                  Discussion and Decision
                                      I. Standard of Review
[9]    Our standard of review in this area is well settled. When reviewing the

       admission or exclusion of evidence, we review for an abuse of discretion.

       Troutner v. State, 951 N.E.2d 603, 611 (Ind. Ct. App. 2011), trans. denied. An

       abuse of discretion occurs when a trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before it. Iqbal v. State, 805

       N.E.2d 401, 406 (Ind. Ct. App. 2004). Generally, errors in the exclusion of

       evidence are harmless unless they affect a party’s substantial rights, and to

       determine that, we assess what the probable impact of that evidence would have

       been on the trier of fact. Redding v. State, 844 N.E.2d 1067, 1069 (Ind. Ct. App.

       2006).


                                   II. Exclusion of Evidence
[10]   Simpson argues the trial court abused its discretion by excluding evidence of his

       jail call after the State stipulated that it would be admissible. He asserts that he

       was prejudiced by the exclusion of the jail call because the State gained “an

       unfair tactical advantage” and his “defense was based upon the admissibility of

       the in-custody call.” Brief of Appellant at 8-9. The State argues the trial court

       properly excluded the evidence because the redacted version of the call was not


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020   Page 7 of 11
       part of the stipulation, the stipulation did not “bind the trial court[,]” and

       “independent considerations of justice” supported the trial court’s exclusion of

       the evidence. Brief of Appellee at 10.


[11]   As relevant to the issue before us, Simpson directs us to paragraph 13 of the

       stipulation, which stated: “This stipulation is binding upon the parties and is

       irrevocable upon execution, and all items of evidence referenced herein are

       admissible into evidence in this cause.” Appellant’s Amended App., Vol. II at 198

       (emphasis added). Simpson maintains that the State was bound by the

       agreement it drafted because the language was unambiguous and therefore, the

       jail call should have not been excluded from evidence. Br. of Appellant at 10-

       11.


[12]   A stipulation is defined as “an agreement between counsel with respect to

       business before a court.” State v. Lewis, 883 N.E.2d 847, 852 (Ind. Ct. App.

       2008) (citation and internal quotation omitted). Such stipulations are contracts

       between the State and the defendant and therefore, contract law principles

       control their use and interpretation, including the well-settled doctrine that any

       ambiguity is to be construed against the one who prepared it. Willey v. State, 712

       N.E.2d 434, 440 (Ind. 1999).


[13]   Although the parties disagree as to whether or not they stipulated to the audio

       recording’s admissibility despite the language of the stipulation, our courts have

       consistently held that parties may not stipulate to a question of law – this

       determination is for the trial court to make, not the parties. See Pond v. McNellis,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020   Page 8 of 11
       845 N.E.2d 1043, 1055 (Ind. Ct. App. 2006) (stating that “questions of law are

       beyond the power of agreement by the attorneys or parties, [and] any agreement

       purporting to stipulate to a question of law is a nullity”) (internal quotation

       omitted), trans. denied; cf. Willey, 712 N.E.2d at 439 (noting that

       notwithstanding a stipulation between the State, the defendant, and defense

       counsel providing for the defendant to submit to a polygraph test and the

       subsequent admission at trial of the results, “the admissibility of the test results

       is at the trial court’s discretion”). As such, the State and Simpson were free to

       stipulate to the facts surrounding the jail call, but to the extent they attempted to

       stipulate to a question of law – in this case, the admissibility of evidence – the

       stipulation was ineffective. Therefore, the admissibility of the jail call Simpson

       offered into evidence was at the discretion of the trial court notwithstanding the

       stipulation.


[14]   The trial court did not abuse its discretion in determining the jail call was

       inadmissible hearsay. “Hearsay” is a statement, other than one made by the

       declarant while testifying at the trial or hearing, offered into evidence to prove

       the truth of the matter asserted. See Ind. Evid. R. 801(c). Hearsay is not

       admissible unless it fits within one of the delineated exceptions to the hearsay

       rule. Cole v. State, 970 N.E.2d 779, 782 (Ind. Ct. App. 2012); see also Evid. R.

       802, 803 and 804. The jail call is classic hearsay, as it was offered into evidence

       to prove the truth of the facts Simpson related during the call. And after the trial

       court ruled that the jail call would be excluded as inadmissible hearsay,

       Simpson did not offer any exception under which the jail call should have been


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020   Page 9 of 11
       admitted and we can find none.2 Therefore, the trial court did not abuse its

       discretion in excluding the evidence.


[15]   Assuming arguendo that the trial court did abuse its discretion, we do not agree

       with Simpson that his defense was unfairly prejudiced by the State objecting to

       and the trial court excluding the evidence. Despite the jail call being made only

       three days before trial and the stipulation being entered on the eve of trial,

       Simpson contends that he relied on the stipulation in preparing his defense and

       would have prepared differently had he known the jail call would not be

       admitted into evidence. Simpson’s argument is unpersuasive because given the

       timeline of when the jail call was made and when the stipulation was entered,

       his reliance on the jail call could not have been as detrimental as he suggests.

       Further, Simpson’s argument that he was forced to prepare to testify in thirty

       minutes is incorrect. The trial court asked defense counsel how much time he

       needed to prepare for Simpson’s direct examination, and it was defense counsel

       who requested thirty minutes, not the State or the trial court.


[16]   Simpson further argues the State gained a “tactical advantage” over him

       because the State had already presented its case-in-chief and he had already

       conducted his cross-examination of the State’s witnesses. Br. of Appellant at 12.




       2
         Indiana Evidence Rule 801(d) lists two exclusions from the hearsay rule: a statement is not hearsay if,
       among other things, the “declarant testifies and is subject to cross-examination about a prior statement[,]”
       Evid. R. 801(d)(1), or if it is “offered against an opposing party” and “was made by the party[,]” Evid. R.
       801(d)(2)(A). Here, the jail call was not a prior statement because Simpson intended to use it in lieu of
       testifying and it was not an opposing party’s statement because Simpson was offering it for himself.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020                      Page 10 of 11
       But Simpson has not demonstrated how he would have cross-examined the

       State’s witnesses differently or how that would have produced a different result

       if he had known he would be testifying. Finally, the fact that the “jury heard

       additional evidence” beyond what was in the jail call is the nature of the

       adversary system. Id. at 12 (Simpson arguing that the jury heard evidence of

       “the State’s reference to a letter Simpson wrote asking for the case to be

       dismissed”). Simpson does not get to determine the evidence the jury hears by

       “testifying” through a jail call that was not subject to cross-examination.


[17]   Simply put, after the trial court made its ruling, Simpson testified to his version

       of events, which was almost identical to the version of events he related in the

       jail call. Because Simpson’s testimony mirrored that of the jail call, the

       exclusion of the jail call had no probable effect on the jury and therefore, we

       conclude there was not a substantial likelihood that the exclusion of Simpson’s

       jail call affected the verdict. See Redding, 844 N.E.2d at 1069.



                                               Conclusion
[18]   The trial court did not abuse its discretion in excluding evidence of Simpson’s

       jail call. Accordingly, we affirm Simpson’s conviction.


[19]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2151 | July 7, 2020   Page 11 of 11
