Ascherman v. State

575 N.E.2d 277, 1991 WL 137609
CourtIndiana Court of Appeals
DecidedJuly 24, 1991
DocketNo. 43A03-9010-CR-00442
StatusPublished
Cited by3 cases

This text of 575 N.E.2d 277 (Ascherman v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ascherman v. State, 575 N.E.2d 277, 1991 WL 137609 (Ind. Ct. App. 1991).

Opinion

STATON, Judge.

James Ascherman appeals his convictions for two counts of Dealing in a Schedule I Controlled Substance, a Class B felony 1; two counts of Possession of a Schedule I Controlled Substance, a Class D felony 2; Dealing in Marijuana, a Class D felony 3; and Possession of Marijuana, a Class D felony 4. He presents four issues for our review:

I. Whether audio tape recordings of drug transactions and accompanying transcripts were erroneously admitted into evidence?
II. Whether State's Exhibit 10 was erroneously admitted into evidence?
III. Whether the trial court erroneously permitted the jury to possess State's Exhibit 10 during deliberations?
IV. Whether evidence of prior criminal charges was erroneously admitted into evidence during the habitual offender portion of Ascherman's trial?

We affirm.

Evidence adduced at Ascherman's trial disclosed that on June 14, 1989, Ascherman possessed over thirty grams of marijuana which he delivered to a Kosciusko County Sheriff's Department informant. On August 29, 1989 and on August 80, 1989, Ascherman possessed and delivered methy-lenedioxymethamphetamine ("MDMA" or "ecstasy"').

[279]*279I.

Admission of Tapes and Transcripts

William Julian, the confidential informant in this case, recorded his contacts with Ascherman via an audio tape recorder. Julian was also outfitted with a radio transmitter which permitted Detective Sergeant Sam Whitaker of the Kosciusko County Sheriff's Department to contemporaneously monitor each recorded conversation. Detective Whitaker's secretary transcribed the series of tapes obtained from Julian; the transcripts were then reviewed and revised by Detective Whitaker.

At trial, Julian and Detective Whitaker each testified that the tapes accurately represented conversations between Ascher-man, William Julian, Patricia Julian and Tammy Sams. The State then offered into evidence three tapes and accompanying transcripts.

A hearing on Ascherman's motion to suppress was held outside the presence of the jury. Defense counsel argued that the tapes were unclear and that some portions were inaudible. He suggested that an instruction be given to the jury "that the transcript isn't gospel." Record, p. 444. The trial court complied with this request, admonishing the jury:

"Ladies and Gentlemen, as I indicated to you, the tapes are in general fairly clear. There are problem areas, areas which you may have trouble hearing, which you may have trouble deciphering precisely. The point I want to make to you is that it is your duty to make an independent judgment as to what you hear from the tapes as to whether the transcript-the tapes authenticate or bear with the transcripts. There is a possibility that the police may have not transcribed the tapes correctly, didn't hear clearly or something and the point I wanted to make is that you make an independent judgment from what you hear on the tapes as to the accuracy of the transcripts or actually what was said and by whom at those conversations that are being taped. Is that essentially the point-"

Record, pp. 506-7.

On appeal, Ascherman requests that we review the challenged tapes and determine whether they were sufficiently audible for submission to the jury. He argues that the tapes failed to meet the foundational requirements of Lamar v. State (1972), 258 Ind. 504, 282 N.E.2d 795.

In Fassoth v. State (1988), Ind., 525 N.E.2d 318, appellant Fassoth argued that tape recordings derived through the use of a recording device concealed in an informant's clothing failed to comply with the standard enunciated in Lamar. The Fas-soth court stated:

"Appellants' case is distinguishable from Lomar. The tape played at appellants' trial did contain sounds of static and interference. However, the portion played to the jury was sufficiently audible to understand that they were in the midst of a drug sale. Further, the standard of quality expected of a recording in an interrogation room cannot be used to judge a recording of a person wearing a 'bug.' ... Also, the content of the tape-recorded conversation was merely cumulative of William Fassoth's [appellant's brother's] testimony about the drug transaction."

Id. at 324.

Pursuant to Ascherman's request, we have reviewed the tapes submitted at his trial. The tapes contained numerous background noises including music, children playing, television programs, and mechanical sounds. However, the conversations accompanying the drug transactions at issue were audible. Additionally, the tape-recorded conversations were cumulative of Julian's testimony that Ascherman possessed and sold drugs on three occasions. We conclude that, under the standard delineated in Fassoth, supra, the tapes were properly admitted into evidence.

Ascherman also argues that the transcripts should not have been admitted into evidence, as he did not stipulate to their accuracy. He refers us to Bryan v. State (1983), Ind., 450 N.E.2d 53. The Bryon court acknowledged that a trial court judge may, in the exercise of sound discretion, furnish jurors with a copy of [280]*280transcripts to assist them in listening to tapes, but noted that transcripts will ordinarily be admitted where both sides agree to their use. However, the court concluded that appellant Bryan was not entitled to reversal of his conviction as he had failed to identify any specific statement in the transcript not identical with the recorded conversation. Id. at 60.

The State urges that Ascherman has waived any allegation of error with respect to the transcripts' admission, because of his acquiescence in admission and request for a limiting instruction prior to making his objection that the transcripts were unnecessary. Notwithstanding waiver, Asch-erman has not demonstrated reversible error. Here, as in Bryon, Ascherman refers to no specific discrepancy between the transcripts and the recorded conversations.

IL.

Admission of State's Exhibit 10

Ascherman alleges that a police statement made by State's witness Tammy Sams (Ascherman's former girlfriend) was erroneously admitted into evidence. Immediately following Sams' in-court testimony, Detective Whitaker testified and was extensively cross examined by Ascherman concerning statements Whitaker had taken from Sams on December 14 and 15, 1989.

The State moved to admit Sams' December 14 statement into evidence, whereupon Ascherman objected that Sams' statements had been used for a "limited purpose," i.e., to demonstrate coercion and to impeach Sams' trial testimony. He argued that he would be unduly prejudiced by references to uncharged transactions.

When the trial court indicated that Asch-erman had invoked "the rule of completeness," defense counsel responded: "If that be the case, your Honor, we want both statements in. The first interview he did with her on the 14th and the one he did on the 15th, the saw should cut both ways." Record, pp. 560-61.

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