Jennifer Nelson for www.theindianalawyer.com

The Indiana Supreme Court reinstated a man’s conviction of being a serious violent felon in possession of a firearm after finding that a detective’s inadmissible hearsay amounts to a harmless error.

The Indiana Court of Appeals reversed Shawn Blount’s conviction based on Detective Terry Smith’s testimony that a witness, Blount’s girlfriend, had identified Blount as the person who shot a gun outside of an Indianapolis hotel. Blount and her son, who also identified Blount as the shooter by using his nickname “Big D,” did not testify at trial. Smith, who was at the hotel conducting surveillance, saw the shooting and identified Blount as the shooter.

The trial court allowed the testimony only in “general terms” rather than the girlfriend’s direct statements.

“Our concern is the danger of prejudice where reliance on the course-of-investigation exclusion is misplaced,” Justice Mark Massa wrote in Shawn Blount v. State of Indiana, 49S02-1405-CR-338. “There is a risk the jury will rely upon the out-of-court assertion as substantive evidence of guilt — rather than for the limited purpose of explaining police investigation — and the defendant will have no chance to challenge that evidence through cross-examination.”

The justices believed the risk of unfair prejudice substantially outweighed any probative value. Smith could have accomplished his goal of explaining how the search narrowed by saying they got Blount’s name through investigation, Massa continued.

But instead of reversing Blount’s conviction as the Court of Appeals did, the justices found his conviction is sufficiently supported by independent evidence of guilt such that the out-of-court statements did not contribute to the jury’s verdict.

Blount also claimed there was a variance between the charging information and the state’s closing argument.

“The charging information here adequately notified Blount he was charged with possessing a firearm on or about November 1, 2012, and the evidence at trial was sufficient to prove just that. Although much of the evidence showed Blount shot a firearm on November 1, the State was only required to prove what it had charged: Blount possessed a firearm on or about November 1. Blount’s own admission — made to police before trial and then again at trial — that he possessed a firearm is simply additional evidence he was guilty as charged. Ultimately, the State’s use of a direct quote from the charging information —‘on or about’ — during closing argument cannot and does not constitute a variance where time is not an element of the offense. Because we find no variance between the pleading and the proof, we find no error,” Massa wrote.