Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
July 5, 2001
Lomaxs neighbor, Samella King, recalled that just before the gunshot, she heard three
voices two of which she recognized as those of Defendant and Mark
Burris. King testified that a few days after the murder, Defendant said
to her, I know you know Im the one that either shot or
killed the guy on the side of your house. (R. at 262.)
Charlene Whitlock, a friend of Defendants, contacted police authorities concerning the murder.
Whitlock agreed to work as a confidential informant in exchange for leniency of
her pending theft charges. On February 12, 1997, police officers equipped Whitlock
with a wire and placed a tape recorder under the seat of her
car. Shortly thereafter, Whitlock and her husband, Floyd Whitlock (Eddie), picked up
Defendant. They pooled their money together and Defendant bought a rock of
crack. During the taped conversation, they smoked a small amount of crack
and got high. Defendant confessed that he had shot Hughes in the
chest with a shotgun. He also admitted that after he blasted Hughes,
he beat the shit out him. (R. at 334, 338.) The
taped conversation in the car was monitored by Detective Marcus Kennedy and intelligence
officers. At what would be Defendants second trial, the tape was played
for the jury over Defendants objection.
The State charged Defendant with Murder
(Count I), Felony Murder
(Count II), and
(Count III). A jury acquitted Defendant on the charges of felony
murder and ro
bbery, but was unable to reach a verdict on the murder
charge. After a second trial, a different jury convicted Defendant of murder.
The trial court then sentenced Defendant to 60 years in prison.
We will recite additional facts as necessary.
During the trial but outside the presence of the jury, the State sought
to introduce the taped conversation in which Defendant admitted to killing Joseph Hughes.
Defendant objected to its admission only on the basis that the recording
was of poor quality and would confuse the jury. The court listened
to the audiotape to determine its clarity and found it sufficiently intelligible.
The court summarized its findings as follows:
[T]he beginning portion of the tape is unintelligible, except for its clear to me from the portions I can get, that its really about the set up of the wire and . . . matters that [were not] directly pertinent to [the day of the murder]. . . . The portion which is pertinent to this case is of sufficient quality to be heard and understood by the trier of fact. I dont think the rest of the tape is such that would lead the jury to speculate as to what is being said. . . . The Court finds that thats not unintelligible.
(R. at 287.)
The trial court made no findings as to the voluntariness of Defendants confession.
The court allowed the entire audiotape to be played before the jury
over Defendants standing objection.
Defendant argues that the trial court erred in finding that the tape was
intelligible and thus, it should have been excluded. To properly admit a
tape recording made in a non-custodial setting, the following foundational requirements must be
established: (1) the recording must be authentic and correct; (2) the testimony elicited
must have been freely and voluntarily made; (3) the recording must not contain
matter otherwise not admissible into evidence; and (4) the recording must be of
such clarity as to be intelligible and enlightening to the jury. See
Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000); McCollum v. State, 582
N.E.2d 804, 811 (Ind. 1991), rehg denied; cf. Freeman v. State, 541 N.E.2d
533, 538 (Ind. 1989). It is within the trial courts discretion to
determine whether such recordings meet these criteria. See Lehman, 730 N.E.2d at
Our independent review of the audiotape leads us to conclude that the trial
court did not abuse its discretion in allowing the tape into evidence.
As we stated recently, The standard of quality expected of a recording in
an interrogation room cannot be used to judge a recording of a person
wearing a wire transmitter. See Kidd v. State, 738 N.E.2d 1039, 1042
(Ind. 2000) (citing Fassoth v. State, 525 N.E.2d 318, 324 (Ind. 1988)), rehg
denied. This principle applies here. At the beginning of the tape, there
is background noise, the voices are mumbled, and there is the sounding of
a car door slamming. Thus, we agree with the trial courts finding
that the beginning of the tape is unintelligible. But the trial court
gave Defendant the option to leave out this portion of the tape.
In response, Defendant nevertheless said, the entire tape should be played. After listening
to the remaining tape, it is sufficiently clear that Defendant was confessing to
committing murder. We find no error.
Defendant makes an additional argument on appeal supporting his claim that the tape
should have been excluded. He argues that his recorded statements were made
involuntarily because he was under the influence of crack cocaine during the conversation.
Defendant further maintains that the informant had gotten permission and talked with
police about using drugs, thus the officers knew that the informant intended to
smoke cocaine with him during the taped conversation.
Appellants Br. at
5 (citing R. at 319.) As such, Defendants a
rgues, his recorded murder
confession was a product of improper influence of crack cocaine induced by police
officers and should have therefore been excluded.
As the State points out, Defendant has failed to preserve this issue for
review. When cross-examining Detective Marcus Kennedy, Defendant did allude to the fact
that confessions given under the influence of drugs or alcohol have been found
to be inadmissible. However, Defendant made no objection to the effect that
his consumption of cocaine rendered his statements involuntary or that the police used
improper tactics to obtain a confession. Rather, his only objection at trial
was that the tape was unintelligible. A defendant cannot argue one ground
when objecting to the admissibility of a confession at trial and then argue
another ground on appeal. See Carroll v. State, 438 N.E.2d 745, 748
(Ind. 1982). Defendant has waived this argument for appellate review.
In any event, if there was error in admitting the taped confession, it
was harmless beyond a reasonable doubt because there was overwhelming independent evidence that
Defendant was the perpetrator who killed Hughes. A wrongful introduction of an
involuntary confession is subject to a constitutional harmless error analysis. See Arizona
v. Fulminante, 499 U.S. 279, 296, 306-12 (1991). Under the harmless error
analysis, this Court must determine whether the State has met its burden of
demonstrating that the admission of the confession ... did not contribute to [the
defendants] conviction. Id. The content of the taped conversation
was merely cumulative of Whitlocks trial testimony regarding Defendants admission to committing the
murder. According to Whitlocks testimony, she and Defendant talked shortly after the
murder occurred. During this non-recorded conversation, Defendant admitted to killing Hughes and
to discarding the murder weapon. Whitlock testified further that Defendant also expressed
fear that Samella King saw him outside her apartment and that she would
be able to identify him. This first conversation between Whitlock and Defendant
was not taped and Defendant made no objection to this trial testimony.
In addition, Whitlocks trial testimony also corroborated the testimony of Samella King and
Victoria Lomax concerning the circumstances surrounding the murder. King testified that just
before the gunshot, she heard three voices two of which she recognized
as those of Defendant and Mark Burris. King also testified that a
few days after the murder, Defendant admitted to her, I know you know
Im the one that either shot or killed the guy on the side
of your house. (R. at 262.) Further, Lomax testified that she
saw Burris hand over a sawed-off shotgun to Defendant just minutes before she
heard a gunshot. According to Lomaxs testimony, she went back inside her
home, and shortly thereafter, she heard a man pleading for his life and
then heard a gunshot. (R. at 198.)
The State presented other evidence that Defendant committed the killing aside from the
taped confession. As such, we conclude that the State demonstrated that the
admission of the taped confession did not contribute to Defendants conviction. See
Fassoth v. State, 525 N.E.2d at 324 (finding no reversible error where the
content of a taped recorded conversation was merely cumulative of the informants trial
testimony); Roller v. State, 602 N.E.2d 165, 171 (Ind. Ct. App. 1992) (holding
that the trial courts admission of an unintelligible audio-tape was harmless error where
other evidence corroborated the informants testimony), transfer denied.
In reviewing a claim of prosecutorial misconduct, we determine (1) whether the prosecutor
engaged in misconduct, and if so, (2) whether that misconduct, under all of
the circumstances, placed the defendant in a position of grave peril to which
he or she should not have been subjected. See Wisehart v. State,
693 N.E.2d 23, 57 (Ind. 1998), cert. denied, 526 U.S. 1040 (1999); Wright
v. State, 690 N.E.2d 1098, 1110 (Ind. 1997), rehg denied. The
gravity of peril is measured by the probable persuasive effect of the misconduct
on the jurys decision, not on the degree of impropriety of the conduct.
Wisehart, 693 N.E.2d at 57 (quoting Kent v. State, 675 N.E.2d 332,
335 (Ind. 1996) (citing in turn Bradley v. State, 649 N.E.2d 100, 107-8
(Ind. 1995), rehg denied.)). The denial of a mistrial lies within the
sound discretion of the trial court, and will be reversed only upon a
finding of an abuse of discretion. See Canaan v. State, 541 N.E.2d
894, 908 (Ind. 1989), cert. denied, 498 U.S. 882, 185 (1990).
In this case, during the prosecuting attorneys closing argument, the following colloquy ensued:
Prosecutor: . . . [A]s you look at the transcript, the Defendant talks
about a lot of other things that gives you an idea of what
kind of person the Defendant is, up through the first eight pages.
Defendant: Your Honor, I object. Move to strike, and I ask the court to admonish the prosecutor for making references in his closing argument to what kind of person the Defendant is. Thats highly inappropriate. Hes asking this jury to convict him based on character, instead of based on the evidence. I strenuously object to that.
Court: Okay, Ill grant the objection. Well strike characterization, or the reference to
the Defendants nature. . . .
Prosecutor: What else are we to draw from the conclusion, thats when I told
her Id break her motherfucking jaw. This is the kind of person
were talking about. . . .
Defendant: Your Honor, I object to him saying This is the kind of person
that were talking about. That . . . I want to approach
the bench, if I may.
(R. at 484-85) (emphases added) (quotations in original).
Outside the jurys presence, the court and counsel from both sides engaged in
a discussion during which Defendant moved for a mistrial on grounds that the
prosecutor repeatedly referred to his character despite his sustained objection. The court
denied Defendants request for a mistrial. The court found that the prosecutors
remark was an inconsequential remark and that it was fair to comment on
[Defendants] demeanor in the tape. (R. at 487.) Defendant declined the
courts offer to admonish the jury.
Defendant argues on appeal that it was improper for the prosecutor to comment
on his character because he neither testified nor submitted any character evidence.
Defendant claims that the prosecutors remarks clearly indicated to the jury that [he]
was violent and a batterer and thus was more likely to have committed
murder because he was bad person. Appellants Br. at 12.
It is misconduct for a prosecutor to request the jury to convict a
defendant for any reason other than his guilt. Wisehart, 693 N.E.2d at
59 (quoting Maldonano v. State, 265 Ind. 492, 500, 355 N.E.2d 843, 849
(1976)). However, as we found in Part I, supra, any error in
this regard was harmless because there was overwhelming independent evidence of Defendants guilt.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.