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| This puppy has nothing to do with the case |
By Andrew Delaney
This is an old case, decided in 2016. The facts are even older.
Flashback to New Year’s Eve 2013 at Mr. Kelley’s apartment. During the early evening, Mr. Kelley and his girlfriend had been drinking. Later in the evening, his girlfriend called 911 and told the dispatcher she needed an ambulance because Mr. Kelley had beaten her.
Two police officers showed up and the girlfriend told one officer that Mr. Kelley assaulted her. Mr. Kelley told another officer that she had fallen a lot and he’d tried to get her to go home. The officers arrested Mr. Kelley and rescue personnel took the girlfriend to the emergency room.
After everyone had left, the officers continued investigating. There was a lot of blood in the apartment. The officers didn’t think Mr. Kelley’s “she fell” story added up. The State charged Mr. Kelley with domestic assault.
Mr. Kelley had a jury trial. The State used the 911 recording, the responding officers’ testimony, the girlfriend’s testimony, and photographs of the girlfriend and the apartment. Though the girlfriend testified for the State, she told the jury that Mr. Kelley didn’t cause her injuries. She said she tripped and fell and hit her head. She also said she blacks out when she drinks. And she blacked out that night, though in the days that followed, snippets—like her memory of tripping over her shoes into the bathroom—return.
At the close of the State’s case, Mr. Kelley moved for acquittal based on the ground that the State couldn’t establish that he caused complainant’s injury. The trial court denied the motion based, at least in part, on the 911 recording.
Mr. Kelley testified. He said he didn’t hit his girlfriend. He said she got drunk and verbally aggressive, so he left her alone. Then he found her in the bathroom bleeding, so he called 911. She grabbed the phone from him. So he went down to the vestibule to meet the police.
The jurors didn’t buy Mr. Kelley’s testimony and convicted him of domestic assault.
Mr. Kelley filed a post-trial motion for acquittal or a new trial. He again raised the state-couldn’t-prove-he-was-the-cause-of-the-injury issue. He also argued that the State didn’t establish a proper foundation to admit the 911 recording as an excited utterance. The trial court denied both motions, pointing again to the substantive evidence in the 911 recording and noting Mr. Kelley didn’t object at trial to the 911 recording as an excited utterance.
And with that, Mr. Kelley appeals to SCOV with four arguments. One, the trial court abused discretion when it admitted the 911 recording. Two, because the second officer’s testimony failed to impeach the complainant, it was hearsay and unfairly prejudicial. Three, the evidence was insufficient to establish that he caused the complainant’s injuries. And, four, the State made an improper closing argument.
SCOV starts with the 911 recording. Mr. Kelley’s first argument is that the trial court screwed up when it allowed one of the officers to identify the complainant’s voice. SCOV makes quick work of this point, noting that the trial court didn’t abuse its discretion and that the officer needn’t be intimately familiar with the caller’s voice to identify the voice.
Mr. Kelley’s second argument is that the State filed to establish an excited-utterance foundation. With no objection on these grounds at trial, we’re in plain-error territory and we all know how that goes. Here, SCOV reasons that that there was sufficient evidence that the complainant was in an excited condition—distraught and crying—and that the trial court didn’t commit an error, let alone an obvious error, when it admitted the 911 recording as an excited utterance.
SCOV also rejects Mr. Kelley’s Confrontation Clause argument. Mr. Kelley contends that because his girlfriend testified that she didn’t remember the night that she was “unavailable” for cross examination. SCOV disagrees and notes that an inability to remember doesn’t make one “unavailable” for cross examination. Because the opportunity to cross-examine her was available, no plain error occurred.
At trial, the second officer testified that the complainant told him that Mr. Kelley had hit the complainant with a closed fist—in contradiction of her trial testimony when she said she couldn’t remember. The State argues this was impeachment evidence and not hearsay, and Mr. Kelley argues that it was hearsay and inadmissible. SCOV sides with the State, concluding that the testimony was of non-hearsay statements offered for impeachment and even though the trial court didn’t necessarily follow the proper procedure for admitting those statements, the statements’ admission didn’t rise to the level of plain error.
If a witness has made inconsistent statements, then, under the rules of evidence, he or she gets an opportunity to deny or explain before the statements (or extrinsic evidence) get brought in. The trial court is also supposed to make a determination that the witness is adverse before we go down that rabbit hole. Neither of these requirements were fully met here.
Nonetheless, SCOV reasons that Mr. Kelley didn’t make the right objections at trial, and even if the statements were inadmissible hearsay, they were cumulative to the 911 recording. No plain error here.
SCOV next considers Mr. Kelley’s argument that the trial court abused its discretion when it denied his motion for a judgment of acquittal. Here, Mr. Kelley contends no evidence exists that he struck complainant above the eye or that he acted recklessly. He also claims there’s no causal connection between his alleged acts and his girlfriend’s injuries. The State gives the equivalent of a shrug and says, “Look, there was enough here for the jury to infer that Mr. Kelley hurt her.”
Again, SCOV sides with the State. In the 911 recording, the complainant said that Mr. Kelley hit her. In connection with the officers’ testimony and photos, there was enough to sustain a reasonable inference and a conviction.
Mr. Kelley’s attack on the State’s closing argument doesn’t get far. The State basically argued that complainant’s story was inconsistent and that it was strange that she couldn’t remember what she had said when everything happened. The argument, by my read, took a “convenient amnesia” tone. Mr. Kelley argues this is mischaracterization and improperly characterized impeachment evidence as substantive evidence. Once again, with no objection at trial, we’re in plain-error land.
SCOV concludes there’s no plain error, if error at all, here. SCOV reasons that the prosecutor confined her closing arguments to “to the evidence of the case and inferences properly drawn from it.” Once again, there’s no plain error to be had here.
This one gets affirmed.
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