MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Mar 15 2017, 6:14 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Byer, Jr. Curtis T. Hill, Jr. Byer & Byer Attorney General of Indiana Anderson, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maurice E. Hilliard, March 15, 2017
Appellant-Defendant, Court of Appeals Case No. 48A05-1609-CR-2087 v. Appeal from the Madison Circuit Court. The Honorable David A. Happe, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 48C04-1509-F5-1457
Friedlander, Senior Judge
[1] Maurice E. Hilliard appeals the revocation of his probation and placement on
home detention. We affirm.
[2] The State charged Hilliard with two counts of intimidation with a deadly
weapon, both Level 5 felonies. The parties executed a plea agreement.
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 1 of 6 Pursuant to the agreement, Hilliard agreed to plead guilty to two counts of
intimidation, both Class A misdemeanors, and the parties would be free to
argue the sentence to the trial court. The court sentenced Hilliard to one year
on each conviction, to be served consecutively. The court further suspended
Hilliard’s sentence and ordered him to serve his suspended sentence on home
detention through the Madison County Community Corrections Program.
[3] On February 8, 2016, the State filed a notice of violation, alleging Hilliard
violated the terms of the home detention program. On July 26, 2016, the State
amended its notice to allege that Hilliard committed two violations. In
paragraph 3A, the State restated its allegation that Hilliard violated the terms of
the home detention program. In paragraph 3B, the State alleged Hilliard
committed a new offense, battery with a deadly weapon, on April 30, 2016.
[4] The trial court held an evidentiary hearing, after which the court concluded
Hilliard violated the terms of probation “as alleged in paragraph 3B.” Tr. p. 28. 1 The court made no findings as to the violations alleged in paragraph 3A. The
court ordered Hilliard to serve his previously-suspended two-year sentence in
the Madison County Detention Center. This appeal followed.
1 In its order, the trial court reversed its findings, stating “The Court now finds defendant has violated the conditions of his probation as alleged under 3A. No violation found under 3B.” Appellant’s App. p. 51. We consider the trial court’s statement during the evidentiary hearing to be the accurate description of the court’s ruling.
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 2 of 6 [5] Hilliard raises one issue, which we restate as: whether the trial court erred in
admitting evidence during the revocation hearing. Hilliard argues the trial
court’s determination that he violated the terms of probation is based solely on
inadmissible hearsay. The State responds that the trial court properly
considered the hearsay evidence in determining Hilliard committed a new
offense.
[6] The admission of evidence is within the trial court’s discretion and its decisions
are reviewed only for an abuse of that discretion. Holmes v. State, 923 N.E.2d
479 (Ind. Ct. App. 2010). An abuse of discretion occurs if a decision is clearly
against the logic and effect of the facts and circumstances before the court or if
the court has misinterpreted the law. Id.
[7] When considering the admissibility of evidence in a probation revocation
proceeding, it is useful to remember a defendant is not entitled to serve a
sentence on probation or in a community corrections program. Monroe v. State,
899 N.E.2d 688 (Ind. Ct. App. 2009). Placement in such a program is a
conditional liberty and is a favor, not a right. Id. (quotation omitted). As a
result, the due process right applicable in probation revocation hearings allows
for procedures that are more flexible than in a criminal prosecution. Reyes v.
State, 868 N.E.2d 438 (Ind. 2007). Such flexibility allows courts to enforce
lawful orders, address an offender’s personal circumstances, and protect public
safety, sometimes within limited time periods. Id. Within this framework,
courts may admit evidence during probation revocation hearings that would not
be permitted in a formal criminal trial. Id.
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 3 of 6 [8] The Indiana Rules of Evidence, which govern hearsay, do not apply in
proceedings relating to sentencing or probation. Ind. Evid. R. 101(d)(2). Even
so, principles of due process require some limits on the admissibility of hearsay
in probation revocation hearings. Reyes, 868 N.E.2d 438. The Indiana
Supreme Court has determined that when a court holding a probation
revocation hearing receives hearsay evidence, it must assess the evidence’s
reliability and may admit it as evidence only if it has “substantial guarantees of
trustworthiness.” Id. at 441. Ideally, the trial court will explain on the record
why the hearsay is reliable and substantial enough to supply good cause for not
producing a witness. Id. at 442 (quotation omitted).
[9] In the current case, the State’s sole witness at the probation revocation hearing
was Detective Clifford Cole of the Anderson Police Department. He testified
about his discussions with various witnesses as he investigated a stabbing that
Hilliard allegedly committed on April 30, 2016, during his term of probation.
The alleged victim, Dylon Bricker, was present at the hearing but the prosecutor
was reluctant to call him, stating “I don’t need to put [Bricker] unwarrantedly
through a hearing.” Tr. p. 14. Hilliard objected to Detective Cole describing
what others told him during the investigation. The trial court stated, “I’ve
found in other cases, and I would find in this case, the statements made to a law
enforcement officer, being subject to penalties for false reporting, that’s by itself,
indicia of reliability, which is sufficient.” Tr. p. 15.
[10] As a result, Detective Cole testified about his discussions with witnesses during
his investigation. He spoke with Bricker and prepared a photo lineup
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 4 of 6 containing Hilliard’s picture. Bricker pointed to Hilliard’s photo, identifying
him as the person who attacked him. The trial court correctly noted Bricker’s
identification of Hilliard, if false, potentially subjected Bricker to criminal
liability for false informing. See Ind. Code § 35-44.1-2-3(d) (2016) (“A person
who . . . gives a false report of the commission of a crime or gives false
information in the official investigation of the commission of a crime, knowing
the report or information to be false . . . commits false informing, a Class B
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Mar 15 2017, 6:14 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Byer, Jr. Curtis T. Hill, Jr. Byer & Byer Attorney General of Indiana Anderson, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maurice E. Hilliard, March 15, 2017
Appellant-Defendant, Court of Appeals Case No. 48A05-1609-CR-2087 v. Appeal from the Madison Circuit Court. The Honorable David A. Happe, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 48C04-1509-F5-1457
Friedlander, Senior Judge
[1] Maurice E. Hilliard appeals the revocation of his probation and placement on
home detention. We affirm.
[2] The State charged Hilliard with two counts of intimidation with a deadly
weapon, both Level 5 felonies. The parties executed a plea agreement.
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 1 of 6 Pursuant to the agreement, Hilliard agreed to plead guilty to two counts of
intimidation, both Class A misdemeanors, and the parties would be free to
argue the sentence to the trial court. The court sentenced Hilliard to one year
on each conviction, to be served consecutively. The court further suspended
Hilliard’s sentence and ordered him to serve his suspended sentence on home
detention through the Madison County Community Corrections Program.
[3] On February 8, 2016, the State filed a notice of violation, alleging Hilliard
violated the terms of the home detention program. On July 26, 2016, the State
amended its notice to allege that Hilliard committed two violations. In
paragraph 3A, the State restated its allegation that Hilliard violated the terms of
the home detention program. In paragraph 3B, the State alleged Hilliard
committed a new offense, battery with a deadly weapon, on April 30, 2016.
[4] The trial court held an evidentiary hearing, after which the court concluded
Hilliard violated the terms of probation “as alleged in paragraph 3B.” Tr. p. 28. 1 The court made no findings as to the violations alleged in paragraph 3A. The
court ordered Hilliard to serve his previously-suspended two-year sentence in
the Madison County Detention Center. This appeal followed.
1 In its order, the trial court reversed its findings, stating “The Court now finds defendant has violated the conditions of his probation as alleged under 3A. No violation found under 3B.” Appellant’s App. p. 51. We consider the trial court’s statement during the evidentiary hearing to be the accurate description of the court’s ruling.
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 2 of 6 [5] Hilliard raises one issue, which we restate as: whether the trial court erred in
admitting evidence during the revocation hearing. Hilliard argues the trial
court’s determination that he violated the terms of probation is based solely on
inadmissible hearsay. The State responds that the trial court properly
considered the hearsay evidence in determining Hilliard committed a new
offense.
[6] The admission of evidence is within the trial court’s discretion and its decisions
are reviewed only for an abuse of that discretion. Holmes v. State, 923 N.E.2d
479 (Ind. Ct. App. 2010). An abuse of discretion occurs if a decision is clearly
against the logic and effect of the facts and circumstances before the court or if
the court has misinterpreted the law. Id.
[7] When considering the admissibility of evidence in a probation revocation
proceeding, it is useful to remember a defendant is not entitled to serve a
sentence on probation or in a community corrections program. Monroe v. State,
899 N.E.2d 688 (Ind. Ct. App. 2009). Placement in such a program is a
conditional liberty and is a favor, not a right. Id. (quotation omitted). As a
result, the due process right applicable in probation revocation hearings allows
for procedures that are more flexible than in a criminal prosecution. Reyes v.
State, 868 N.E.2d 438 (Ind. 2007). Such flexibility allows courts to enforce
lawful orders, address an offender’s personal circumstances, and protect public
safety, sometimes within limited time periods. Id. Within this framework,
courts may admit evidence during probation revocation hearings that would not
be permitted in a formal criminal trial. Id.
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 3 of 6 [8] The Indiana Rules of Evidence, which govern hearsay, do not apply in
proceedings relating to sentencing or probation. Ind. Evid. R. 101(d)(2). Even
so, principles of due process require some limits on the admissibility of hearsay
in probation revocation hearings. Reyes, 868 N.E.2d 438. The Indiana
Supreme Court has determined that when a court holding a probation
revocation hearing receives hearsay evidence, it must assess the evidence’s
reliability and may admit it as evidence only if it has “substantial guarantees of
trustworthiness.” Id. at 441. Ideally, the trial court will explain on the record
why the hearsay is reliable and substantial enough to supply good cause for not
producing a witness. Id. at 442 (quotation omitted).
[9] In the current case, the State’s sole witness at the probation revocation hearing
was Detective Clifford Cole of the Anderson Police Department. He testified
about his discussions with various witnesses as he investigated a stabbing that
Hilliard allegedly committed on April 30, 2016, during his term of probation.
The alleged victim, Dylon Bricker, was present at the hearing but the prosecutor
was reluctant to call him, stating “I don’t need to put [Bricker] unwarrantedly
through a hearing.” Tr. p. 14. Hilliard objected to Detective Cole describing
what others told him during the investigation. The trial court stated, “I’ve
found in other cases, and I would find in this case, the statements made to a law
enforcement officer, being subject to penalties for false reporting, that’s by itself,
indicia of reliability, which is sufficient.” Tr. p. 15.
[10] As a result, Detective Cole testified about his discussions with witnesses during
his investigation. He spoke with Bricker and prepared a photo lineup
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 4 of 6 containing Hilliard’s picture. Bricker pointed to Hilliard’s photo, identifying
him as the person who attacked him. The trial court correctly noted Bricker’s
identification of Hilliard, if false, potentially subjected Bricker to criminal
liability for false informing. See Ind. Code § 35-44.1-2-3(d) (2016) (“A person
who . . . gives a false report of the commission of a crime or gives false
information in the official investigation of the commission of a crime, knowing
the report or information to be false . . . commits false informing, a Class B
misdemeanor.”). The possibility of prosecution for lying provides a substantial
guarantee of trustworthiness.
[11] Similarly, Detective Cole testified that he interviewed Tayler Beemer, who
identified Hilliard in the same photo array as a person he saw leaving the scene
of the stabbing. Finally, Shane Hollowell and Tony Buchan both told Detective
Cole that on April 30, 2016, prior to the stabbing, they had separately
encountered an angry man who challenged them to fight. Both of them
separately identified Hilliard in the photo array as the man who confronted
them. These three witnesses’ statements to Detective Cole were provided in the
course of a criminal investigation, and they were subject to criminal liability for
any falsehoods. As a result, their statements also had a substantial guarantee of
trustworthiness and the trial court did not err in admitting them. See Wilkerson
v. State, 918 N.E.2d 458 (Ind. Ct. App. 2009) (evidence, including hearsay
evidence consisting of witness statements to police officer, sufficient to support
revocation).
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 5 of 6 [12] Detective Cole told the court about his conversation with other officers who
were dispatched to the scene of the stabbing, interviewed Bricker, and described
their interview to the detective. Detective Cole further testified that he spoke
with Bricker’s mother, who told him “she had heard from subjects on the street
that a possible suspect’s name was Maurice Hilliard.” Tr. p. 17. The
statements by the officers and Bricker’s mother to Detective Cole about what
other persons told them appear to be hearsay within hearsay, which may be less
reliable. In any event, even if Detective Cole’s testimony about what the
officers and Bricker’s mother told him should not have been admitted, the
erroneous admission of hearsay is not grounds for reversal where it is merely
cumulative of other evidence. Sutton v. State, 689 N.E.2d 452 (Ind. Ct. App.
1997). This evidence is cumulative of Detective Cole’s testimony about
Bricker, Beemer, Hollowell, and Buchan’s identifications of Hilliard. The trial
court did not abuse its discretion in admitting evidence.
[13] For the reasons stated above, we affirm the judgment of the trial court.
[14] Judgment affirmed.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017 Page 6 of 6