ATTORNEYS FOR APPELLANT
Bruce A. Brightwell
Bart M. Betteau
New Albany, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
SUPREME COURT OF INDIANA
CHARLES J. DESJARDINS, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 31S01-0111-CR-560
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 31A01-0002-CR-60
Appellee (Plaintiff Below). )
APPEAL FROM THE HARRISON SUPERIOR COURT
The Honorable Roger Davis, Judge
Cause No. 31D01-9801-CF-13
ON PETITION FOR TRANSFER
December 6, 2001
Charles DesJardins was convicted of two counts of Child Molesting as Class A
Felonies, and one count of Child Exploitation as a Class D Felony.
At trial, the State introduced about four minutes of videotape that showed DesJardins
committing the offenses. One of DesJardins contentions on appeal is that the
trial court erred by denying his request under Indiana Evidence Rule 106 to
introduce the remaining four hours of videotape. We grant transfer to address
the applicability of Evidence Rule 106 to the use of videotaped evidence and
other modes of conveying information.
Scope of Indiana Evidence Rule 106
In the course of its opinion, the Court of Appeals considered DesJardins contention
that the trial court erred by admitting portions of the videotapes but refusing
to permit DesJardins to show the entire four hours of tape to the
jury. DesJardins v. State, 751 N.E.2d 323, 325-27 (Ind. Ct. App. 2001).
In the trial court, DesJardins contended that the entire tape was required
to be admitted under the doctrine of completeness as it is currently embodied
in Indiana Rule of Evidence 106. That rule provides:
When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require at that time the introduction of any
other part or any other writing or recorded statement which in fairness ought
to be considered contemporaneously with it.
The Court of Appeals held that a videotape is not a writing or
recording within the meaning of Rule 106 because a videotape is not included
in the list of Writings and recordings set forth in Rule 1001(1).
By contrast, Rule 1001(2) defines Photographs to include still photographs, x-ray films, videotapes,
and motion pictures. Evid. R. 1001(2). As a result, the Court
of Appeals reasoned that by definition, Rule 106 does not apply to the
admission of videotapes. 751 N.E.2d at 326.
We grant transfer to make clear that all modes of conveying information, including
videotapes, constitute writings or recordings for purposes of Rule 106, even if they
are defined by Rule 1001 as photographs. As Rule 1001 explicitly states,
its definitions are for purposes of this Article of the Indiana Rules of
Evidence. [T]his Article is Article X, which deals with Contents of Writings,
Recordings and Photographs, and contains a number of provisions that treat writings and
recordings differently from photographs. But the purpose of Article X is to
address issues raised by the various means of reproduction of the several media,
such as what a duplicate or original means in the context of technology
that includes photographs, videotapes, etc. The definitions are by their terms limited
to that Article of the Rules of Evidence.
On the other hand, Rule 106 is located in Article I, deals with
substantive fairness, and embodies a doctrine recognized at common law long before Thomas
Edison, Edwin Land or Bill Gates was heard from. Rule 106 provides,
in straightforward terms, that if a party introduces a part of a writing
or recorded statement
and fairness requires that additional portions of it be introduced,
then an adverse party may require that the additional parts be admitted.
See, e.g., Evans v. State, 643 N.E.2d 877, 881-82 (Ind. 1994). Thus,
the doctrine is wholly independent of the peculiarities of the technology by which
any particular medium transmits information, and applies to any mode of conveying information,
including those identified for purposes of Article X as photographs. To the
extent other jurisdictions have considered the point, they have reached the same conclusion
under counterparts to Rule 106. See, e.g., United States v. Spearman, 186
F.3d 743, 755 (6th Cir. 1999) (under Federal Rule of Evidence 106, defendant
had opportunity to present videotape in its entirety after government played only portions
of video); State v. Austin, 585 N.W.2d 241, 244 (Iowa 1998) (State permitted
to introduce entire videotape when portions of information contained therein referred to by
defense); State v. Baca, 902 P.2d 65, 72 (N.M. 1995) (trial court should
have admitted video tape under rule of completeness).
Although we agree with DesJardins that the doctrine of completeness embodied in Rule
106 is applicable to the videotapes in question, we agree with the Court
of Appeals in its alternative holding that DesJardins fails to demonstrate the relevance
of the absent portions about which he complains. For that reason, we
agree with the result reached by the Court of Appeals that the remaining
portions of the videotapes were properly excluded.
Cf. Evans, 643 N.E.2d at
881 (Evidence introduced under rule of completeness is subject to the general rules
of admissibility, . . . and any portions found immaterial, irrelevant, or prejudicial
must be redacted.).
We conclude that any mode of conveying information, including videotapes, falls within the
scope of Indiana Rule of Evidence 106 and the doctrine of completeness, but
on the facts presented here the trial court did not commit reversible error
in denying DesJardins request to play the videotapes in their entirety. On
all other issues, the Court of Appeals is summarily affirmed. Ind. Appellate
Rule 58(A)(2). The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
That list includes letters, words, sounds, or numbers, or their equivalent, set
down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording,
or other form of data compilation. Ind. Evidence Rule 1001(1).
Footnote: It is also worth noting that the language writing or recorded statement,
as used in Rule 106, is not the same as the specifically defined
term writings and recordings used in Rule 1001(1).