Cain v. State

300 N.E.2d 89, 261 Ind. 41, 1973 Ind. LEXIS 414

Opinions

Arterburn, C.J.

Footnotes

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The sole issue presented on this appeal of a second degree murder conviction is one of the admissibility of hearsay evidence. Our statute, IC 1971, 35-1-54-1 [Burns Ind. Ann. Stat. § 10-3404 (1956 Repl.)], defines the crime of second degree murder as follows: “Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree.”

At his trial before a jury, the defendant called as a witness his girlfriend to testify to remarks the defendant had made to her in conversation prior and subsequent to the killing. Appellant argues that his remarks to his girlfriend show he had no malicious intent to kill.

The state objected to such conversations on the ground that they were hearsay and self-serving declarations. The following questions were asked of the witness and conferences were had with the Court off the record:

“Q. Now you tell the jury what Johnny Cain said to you and what you said to him with regards to this fight?

Mr. McCain offers to prove, given outside the hearing of the jury: The defendant will offer to prove that if this witness were permitted to testify and answer the question asked that she would testify that Johnny Cain stated to her that he had been involved in a fight with a man named Simmie Lee Thomas and that Simmie Lee Thomas had hit him in the face and particularly above the eye.

“Q. You tell the jury what you said to him and what he said to you with regards to Simmie Lee Thomas.

Mr. McCain offers to prove, given outside the hearing of the jury: The witness if permitted to testify would state that the conversation between Johnny Cain and her was to the effect that Johnny Cain said to her first that he was afraid of Simmie L. Thomas; second, that he was not able to handle Thomas physically; third, that he definitely thought that Thomas was out to get him; and fourth, that Johnny Cain told the witness that Thomas had already shot two people.”

The Court sustained the objection. It is from this ruling that the Appellant appeals.

The remarks constituted hearsay. That is, they were part of testimony of a witness as to extra-judicial declarations of another person offered for the purpose of proving the facts asserted by that other person. 12 I. L. E. Evidence § 101, p. 533. Therefore, if the declarations are to be admitted, they must be admitted under one of the well-recognized exceptions to the hearsay rule. Appellant appears to suggest that the statements should be admitted as part of the “res gestae.” Such a contention is clearly erroneous since the conversations were by no stretch of the imagination close enough temporally or logically to the killing to be part of the “res gestae.” 6 WIGMORE ON EVIDENCE § 1746, p. 133-135 (3d ed. 1940).

The statements are also “self-serving” (i.e. tending toward establishing the position of a party-declarant) and are deemed to be too inherently unreliable to be admitted. The application of this principle in criminal cases is well-established in this state and many others. The principle applies to statements made both prior to and subsequent to the act for which the statements are offered as evidence about the intent to do said act. Thus, in an Indiana prosecution for larceny, an offer by the defendant to prove statements negativing an intent to steal made after the larceny occurred was rejected. In affirming, this Court said:

“. . . the excluded statements were no part of the res gestae, but were in the nature of self-serving declarations, which were open to the suspicion of being part of a hastily formed plan of defense.” Spittorff v. State (1886), 108 Ind. 171, 174, 8 N. E. 911, 913; accord. Durst v. State (1920), 190 Ind. 133, 128 N. E. 920.

The reasons for this rule have frequently been stated. It is said that:

“To admit such declarations in evidence in his behalf, would be to allow a party to make evidence for himself, and, if believed, to disprove the imputation of malice, clearly apparent from the circumstances. This would be against all principle, and productive of great evil.” Newcomb v. State (1859), 37 Miss. 383, 399.

It has been recognized that what is involved is a weighing of the elements which make up a fair trial.

“The rule is not founded on the idea that they [extra judicial declarations] would never contribute to the ascertainment of truth, for very often they might be entirely satisfactory, but there is so much danger, if they were received, that they would most commonly consist of falsehoods fabricated for the occasion, and so would mislead oftener than they would enlighten, that it was found indispensable as a part of the law of evidence to reject them altogether, except under a few peculiar circumstances.” State v. Hildreth (1849), North Carolina 9 Ired. 440, 446, quoted in State v. Outerbridge (1879), 82 N. C. 617.

Perhaps the primary cause for judicial hostility to such declarations is the fear of the consequences which admissibility would bring forth. “Such declarations on the part of defendant are self-serving, if admitted in the evidence on his behalf, there would be great inducement on his part to fabricate a defense.” Price v. State (1933), 167 Miss. 255, 260, 148 So. 348, 349.

We base our decision not only on the weight of authority, but on the soundness of the principle as applied to the circumstances before us. Wigmore, a vocal foe of this “self-serving” rule, believed that the fundamental purpose of the Hearsay Rule was to prevent a party from being harassed by evidence not subject to cross-examination, 5 WIGMORE ON EVIDENCE § 1362, p. 3-7 (3d ed. 1940). In the instant case, the defendant could have testified to his intent and would thus have been subject to cross-examination, but instead he exercised his constitutional right and declined to testify. By discussing his alleged lack of intention with his girlfriend after the commission of the offense, the defendant created a situation in which he could attempt to have his girlfriend testify indirectly as to his intent, thus not being subject to cross-examination. In other words, defendant wishes us to admit evidence made immune from cross-examination by his own trial strategy. State v. Beach (1896), 147 Ind. 74, 43 N. E. 949; Baltimore and Ohio Southwestern Railway Company v. Reed (1902), 158 Ind. 25, 62 N. E. 488. Thus, we are not forcing upon defendant a choice between constitutional rights when we point out that defendant is attempting to use for himself the constitutional privilege against self-incrimination as a technique for avoiding the equally hallowed constitutional principle of cross-examination. The testimony was both self-serving and hearsay.

Finally, we point out that in reviewing a judgment on appeal it is the duty of the Supreme Court to sustain the action of the trial court if it can be done on any legal ground on the record. This is true even though the reason given by the trial court might be erroneous, if the ruling can be sustained on another ground. This principle also applies to objections made by an objecting party where the court overrules the same and such overruling can be sustained on any other valid ground to support the trial court ruling. It is only when this court on appeal seeks to reverse the trial court that the objection must be sufficiently specific to inform the trial court plainly of its alleged error. Notter v. Beasley (1960), 240 Ind. 631, 166 N. E. 2d 643, 93 A. L. R. 2d 905; General Motors Corp v. Review Board, (1970), 146 Ind. App. 278, 255 N. E. 2d 107; 2 I. L. E. Appeals § 472, p. 355.

For these reasons, the ruling of the trial court and its judgment, are hereby affirmed.

Givan and Hunter, JJ., concur, DeBruler, J., concurs in the result with a separate opinion in which Prentice, J., joins.

This case was distributed to the writer of this opinion on June 27, 1973.