ATTORNEY FOR APPELLANT

Patricia Caress MccMath

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Chris Worden         

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

ROBERT SIMMONS,             		)

   						)

	Appellant (Defendant Below), 	)	 

						)	

	      v.					)	Supreme Court

 						)	Cause No. 49S00-9806-CR-366

STATE OF INDIANA,	    		)	

						)

	Appellee (Plaintiff Below).	)

	APPEAL FROM THE MARION SUPERIOR COURT

	The Honorable Mark Renner, Magistrate

	Cause No. 49G04-9705-CF-65358

	ON DIRECT APPEAL

July 16, 1999

BOEHM, Justice.

	Robert Simmons was convicted of the murder of Ronald Brown and was sentenced

to fifty-five years imprisonment.  In this direct appeal, Simmons contends the trial court erred by admitting irrelevant and prejudicial evidence, and also by admitting hearsay evidence of a child’s statement in violation of the Confrontation Clauses of the Sixth Amendment and

under the Indiana Constitution, Article I, Section 13.  We affirm the trial court.

	Factual and Procedural Background

	Simmons frequently visited his friend Melissa Fuqua to use the telephone in her

home.  On May 5, 1997, in the course of one of these visits, Simmons encountered Brown

and another man entering the house as he was leaving.  According to Simmons, the two had

threatened him with guns earlier that year.  Shortly thereafter, Brown left the house for his

car.  As Brown and Simmons passed on the porch, Brown allegedly called Simmons a “punk

bitch.”  Brown then entered his car, and Simmons produced a .38 caliber handgun and fired

five shots at Brown.  Simmons later testified that he thought Brown was retrieving a gun

from his car.  Brown died as a result of gunshots to the head.

	Fuqua’s cousin and a friend were standing on Fuqua’s porch when the shots were

fired, and both testified that they saw Simmons shoot Brown.  Fuqua was in the house when

the shots were fired, but ran to the porch where Rashida, her eight-year-old daughter, was

screaming “He killed him.”  As Fuqua tried to calm Rashida, the child repeated that Simmons

had killed Brown.  At trial, Fuqua related these events, including what the child had said. 

Rashida did not testify. 

	When the police arrived at the scene of the crime they found an empty holster lying

on Simmons’ car seat.  Police photographs of the holster and the holster itself were admitted

into evidence over objection.  The jury was instructed on the issue of self-defense, but convicted Simmons of murder. 

	I. Evidence of the Holster

	Simmons first contends that the trial court erred by admitting the holster and pictures

of the interior of Simmons’ car showing the holster on the seat, both of which he contends

were irrelevant and prejudicial.  Given that Simmons admitted shooting Brown, but claimed

self-defense, both the relevance and the prejudice of this evidence approach zero.  Simmons

cites Tynes v. State, 650 N.E.2d 685 (Ind. 1995) for the proposition that evidence of other weapons not used in the crime, but present at the scene of the crime, is inadmissible.  In

Tynes, evidence of other weapons not used in the crime was found to be error but harmless because there were other references to the weapons in testimony.  Id. at 687.  Here, the presence of a holster associated with the weapon used in the crime is even less consequential. 

Its relevance is marginal, but its prejudice is nonexistent.  The trial court’s balancing of these

factors presents no reversible error.

	II. Hearsay and the Confrontation Clause Issues

	A. Excited Utterance           

	Simmons also contends that the trial court erred when it overruled a hearsay objection

to Fuqua’s report of Rashida’s statement that “Rob [Simmons] killed R.B. [Brown].”  The

trial court admitted the testimony as an excited utterance under Indiana Evidence Rule

803(2).  Hearsay is admissible under this rule when the statement relates “to a startling event

or condition made while the declarant was under the stress of excitement caused by the event

or condition.”  The issue is “whether the declarant was still under the stress of excitement caused by the startling event when the statement was made.”  Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).  Here, Fuqua testified that she went outside when she heard

gunshots, and her daughter Rashida was screaming, “[h]e killed him.”  Fuqua brought

Rashida in the house, where the child told her mother that Simmons killed Brown.  Rashida’s

statements were made within a minute of the shooting.  Simmons contends that Rashida was

not acting while under stress because Fuqua said she “had to calm Rashida down.”  It was

well within the trial court’s discretion to conclude that Rashida, eight years old, was still

incapable of thoughtful reflection one minute after witnessing five gun shots and a death.

	B. Confrontation Clause Claim

	Simmons next contends that even if the declarant’s statement falls within the hearsay

exception, the statement is still barred by the Confrontation Clauses of the Sixth Amendment

to the United States Constitution and Article I, Section 13 of the Indiana Constitution

because the declarant, Rashida, could have been subjected to cross-examination, and that

unavailability of the declarant is a constitutional requirement for the admission of hearsay.1  He contends that in almost all of our previous holdings regarding the excited utterance

exception to the hearsay rule, the declarant was a murder victim and thus unavailable to

testify.  See Taylor v. State, 697 N.E.2d 51 (Ind. 1998); Montgomery v. State, 694 N.E.2d 1137 (Ind. 1998); Yamobi, 672 N.E.2d at 1345.  In this case, however, the declarant was alive and in the jurisdiction at the time of the trial.

	Simmons, however, did not object on Confrontation Clause grounds during the trial;

he objected only that Rashida’s statement occurred after a “calming down” period that

followed the shooting.  A defendant may not raise one ground for objection at trial and argue

a different ground on appeal.  Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998) (citing Marshall v. State, 621 N.E.2d 308, 316 (Ind. 1993)).  Moreover, the crux of Rashida’s statement -- that Simmons shot Brown -- was uncontested.  Two other witnesses saw

Simmons shoot Brown.  Simmons also made clear, both at trial and in his appellate brief, that

the issue in this case was intent, not mistaken identity, and that the shooting was in self-

defense.  The hearsay statements concerned only the identity of the perpetrator of the crime,

not his motive, so cross-examination would accomplish nothing. Accordingly, the

Confrontation Clause claim is neither preserved nor prejudicial.

Conclusion

	The judgment of the trial court is affirmed.

	SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.