Davis v. Garrett

887 N.E.2d 942, 2008 WL 1902733
CourtIndiana Court of Appeals
DecidedFebruary 15, 2008
Docket49A02-0704-CV-304
StatusPublished
Cited by16 cases

This text of 887 N.E.2d 942 (Davis v. Garrett) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Garrett, 887 N.E.2d 942, 2008 WL 1902733 (Ind. Ct. App. 2008).

Opinions

OPINION

BAKER, Chief Judge.

Appellant-plaintiff Anthony Davis appeals the judgment entered in favor of appellee-defendant Gregory Garrett on his claim against Garrett for injuries that he sustained in a motor vehicle/pedestrian accident. Specifically, Davis argues that the trial court abused its discretion in admitting a portion of a police report into evidence and that the trial court erred in rejecting two of his proffered jury instructions. Davis also contends that he was deprived of a fair trial because of an alleged ex parte communication that occurred between Garrett’s counsel and the trial judge. Finally, Davis claims that some of the comments that the trial judge made were unfairly prejudicial to him. Concluding that the police report was properly admitted into evidence and finding no other error, we affirm the judgment of the trial court.

FACTS

On September 17, 2000, Davis was walking on the south side of 38th Street in Indianapolis after exiting a Metro Bus. Garrett was attempting to negotiate a left turn onto 38th Street near Audubon Street. As Davis proceeded to cross 38th Street, Garrett struck Davis with his vehicle. Davis was injured and treated by Dr. Craig Johnston.

As a result of the incident, Davis filed a complaint against Garrett seeking damages for his injuries. At some point, Garrett filed a motion to exclude portions of Dr. Johnston’s videotaped deposition, which had been taken on February 28, 2007. Davis’s counsel was provided with a copy of that motion.

On March 12, 2007 — the day before the commencement of the jury trial — Garrett filed a motion requesting a ruling on his objections to Dr. Johnston’s deposition testimony. In response, the trial court ruled on the objections and excluded various portions of Dr. Johnston’s testimony from the jury.

At a jury trial that commenced on March 13, 2007, Paul Helms testified about his observations at the time of the accident. In particular, Helms testified that Davis was walking diagonally across 38th Street just prior to the impact. However, contrary to the police report, Helms did not testify on direct examination that he had told the police officer that Davis walked into Garrett’s vehicle and fell down. As a result, Garrett’s counsel impeached Helms on cross-examination by introducing this prior statement that he made to the police officer at the scene. Tr. p. 157. Specifically, Garrett’s counsel offered the last page of the police report into evidence that contained the statement. Over Davis’s hearsay objection, the trial court admitted the police report into evidence and allowed it to be published to the jury.

During Davis’s closing argument, the trial judge commented that Davis’s counsel was misstating the evidence regarding Garrett’s obligation to stop his vehicle. The trial court then permitted Davis’s counsel to explain further, and the trial court ultimately instructed the jury to disregard Davis’s counsel’s characterization of the evidence.

Thereafter, the parties submitted proposed instructions. The trial court denied [946]*946Davis’s proposed instruction six, which provided that

At the time of the occurrence being considered in this case, Indiana Code § 9-21-8-23 provided as follows:
A person may not start a vehicle that is stopped, standing, or parked until the movement can be made with reasonable safety.
If you find from a preponderance of the evidence that any party violated this statute on the occasion in question and the violation was without excuse or justification, such conduct would constitute negligence to be assessed against that party.

Appellant’s App. p. 55. The trial court also denied Davis’s proffered instruction number nine, which stated:

At the time of the occurrence being considered in this case, Indiana Code § 9-21-8-32 provided as follows:
A person who drives a vehicle shall stop at an intersection where a stop sign is erected and shall proceed onto the highway cautiously.
If you find from a preponderance of the evidence that any party violated this statute on the occasion in question and the violation was without excuse or justification, such conduct would constitute negligence to be assessed against that party.

Id. at 58. The jury found in Garrett’s favor, and Davis now appeals.

DISCUSSION AND DECISION I. Police Report

Davis first contends that the trial court improperly admitted the police report into evidence. Specifically, Davis maintains that the report was not properly authenticated and that it constituted hearsay. Moreover, Davis contends that the police report did not fall under any of the exceptions to the hearsay rule.

In resolving this issue, we initially observe that a trial court has broad discretion in ruling on the admissibility of evidence, and we will reverse only when the trial court has abused its discretion. Jones v. State, 800 N.E.2d 624, 626-27 (Ind.Ct.App.2003). An abuse of discretion will only be found if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. at 627.

Although Davis contends on appeal that the police report should have been excluded because it was not properly authenticated, we note that Davis objected to the admission of the report at trial only on the grounds that the report constituted hearsay. As a result, Davis has waived this argument. See Small v. State, 736 N.E.2d 742, 747 (Ind.2000) (recognizing that a defendant may not raise one ground for objection at trial and argue a different ground on appeal).

In addressing Davis’s claim that the police report should have been excluded on the grounds of hearsay, we note that hearsay has been defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). The exclusion of hearsay is meant to prevent the introduction of unreliable evidence that cannot be tested through cross examination. Truax v. State, 856 N.E.2d 116, 124 (Ind.Ct.App.2006). Finally, we note that hearsay statements are generally not admissible unless the statements fall within one of the several exceptions found in Indiana Evidence Rules 803 and 804.

In this case, Garrett contends that the police report was properly admit[947]*947ted into evidence under the “present sense impression” exception to the hearsay rule. More specifically, Indiana Evidence Rule 803(1) excludes “statement[s] describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter.” (Emphasis added). For a statement to be admitted under the present sense impression exception, the statement must describe or explain the event or condition “during or immediately after its occurrence, and the statement must be based on the declarant’s perception of the event.” Truax v. State, 856 N.E.2d 116, 126 (Ind. Ct.App.2006).

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Davis v. Garrett
887 N.E.2d 942 (Indiana Court of Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
887 N.E.2d 942, 2008 WL 1902733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-garrett-indctapp-2008.