Floyd D. Stewart v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 30, 2013
• Docket: 65A05-1212-CR-656
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jul 30 2013, 7:42 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DONALD E. BAIER GREGORY F. ZOELLER Baier & Baier Attorney General of Indiana Mount Vernon, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

FLOYD D. STEWART, ) ) Appellant-Defendant, ) ) vs. ) No. 65A05-1212-CR-656 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE POSEY SUPERIOR COURT The Honorable S. Brent Almon, Judge Cause No. 65D01-1109-FA-511

July 30, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge Following a jury trial in Posey Superior Court, Floyd D. Stewart (“Stewart”) was

convicted of two counts of Class A felony dealing in cocaine and sentenced to concurrent

terms of twenty-three years, with twenty-one years executed and two years suspended.

Stewart appeals and claims that the trial court abused its discretion when it admitted into

evidence audio recordings of Stewart’s conversations with a police informant and the

transcripts made from these recordings.

We affirm.

Facts and Procedural History

In the spring of 2011, an individual contacted Kenneth Rose (“Rose”), an

investigator with the Posey County Prosecutor’s Office and head of the Posey County

Drug Task Force, and told Rose that he would be willing to act as confidential informant

(“CI”) and purchase illicit drugs in exchange for money. This CI gave Rose the names of

several people in Posey County from whom he believed he could purchase drugs.

Among these people was Stewart, who the CI stated sold cocaine. The CI had personally

known Stewart and some of his family for approximately ten years. The CI later met

with FBI Special Agent William Gray (“Agent Gray”), the coordinator of the Southwest

Indiana Violent Crime Task Force, who was working with local law enforcement.

On May 27, 2011, the CI telephoned Stewart in the presence of Agent Gray as

Gray recorded the conversation. In this conversation, Stewart told the CI that his supplier,

Anthony Gadson (“Gadson”), had not yet given him a price but that he was preparing to

bring a half ounce each of “soft” and “hard,” which the CI explained referred to

powdered and crack cocaine, respectively. Tr. p. 61. Following this conversation, on

2 June 3, 2011, the CI conducted a controlled buy from Gadson and Stewart. Prior to the

actual purchase, the CI telephoned Stewart four times, and these calls were recorded by

the police. During the final call, Stewart told the CI that Gadson would meet them

nearby. Agent Gray and Evansville Police Officer Michael Kennedy (“Officer

Kennedy”) then searched the CI and his vehicle, gave him $800 in buy money, and

equipped him with a recording device. While under surveillance by the police, the CI

drove to Stewart’s home, picked him up, and drove to a nearby car wash. There, the CI

gave Stewart the $800, and he eventually drove Stewart back to his home to meet with

Gadson. Stewart left the CI’s car and entered Gadson’s vehicle. Gadson then drove

Stewart around the block. Upon returning, Stewart then entered the CI’s vehicle and

gave him 5.8 grams of cocaine.

The CI telephoned Stewart again on June 9, 2011, to set up another controlled buy,

and this conversation was recorded. The CI then conducted another controlled buy from

Stewart. During this buy, Stewart got into the CI’s car, and the two went to a nearby gas

station, where Gadson was parked in his vehicle. Stewart took $800 from the CI,

received 4.9 grams of cocaine from Gadson, and gave it to the CI. Again, Stewart’s

conversation with the CI was recorded by means of a device the CI was wearing.

As a result of these incidents, on September 28, 2011, the State charged Stewart

with two counts of Class A felony dealing in cocaine in an amount in excess of 3 grams.

A jury trial was held on October 31 and November 1, 2012. At the trial, over Stewart’s

objections, the State introduced into evidence the recordings of the telephone

conversations between the CI and Stewart and the recordings of their conversations

3 during the controlled buys. Transcripts of these conversations were also admitted into

evidence. The jury found Stewart guilty as charged. On November 27, 2012, the trial

court sentenced Stewart to concurrent sentences of twenty-three years, with twenty-one

years executed and two years suspended to probation. Stewart now appeals.

Standard of Review

Stewart claims that the trial court erred in the admission of evidence. In reviewing

this claim, we are mindful that questions regarding the admission of evidence are left to

the sound discretion of the trial court, and on appeal, we review the trial court’s decision

only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App.

2009). The trial court abuses its discretion only if its decision is clearly against the logic

and effect of the facts and circumstances before it, or if the court has misinterpreted the

law. Id.

Discussion and Decision

Stewart claims that the trial court erred in the admission of the recordings made of

the CI’s telephone conversations with Stewart on May 27, June 3, and June 9, 2011, and

the recordings of Stewart’s conversations with the CI made from the recording device the

CI wore during the controlled buys on June 3 and June 9, 2011. He also complains that

the transcripts made from these recordings should not have been admitted into evidence.

A. Admission of the Recordings

We first address Stewart’s arguments regarding the admission of the recordings.

On appeal, Stewart claims that the quality of the recordings is so poor that the jury had to

speculate as to their content. The admission of a sound recording should be preceded by

4 a foundation disclosing that the recording is, inter alia, authentic and correct and of such

clarity as to be intelligible and enlightening to the jury. Hall v. State, 897 N.E.2d 979,

981 (Ind. Ct. App. 2008) (citing Lamar v. State, 258 Ind. 504, 512-13, 282 N.E.2d 795,

800 (Ind. 1972)).

Stewart objected at trial based upon this first requirement—that the recording be

authentic. On appeal, he seems to have abandoned this argument, and with good reason.

The CI repeatedly testified that he had listened to each recording and that the recordings

accurately captured his conversations with Stewart. See Tr. pp. 57-58, 62, 68, 75, 80.

Stewart’s suggestion that the CI was inherently unreliable is simply an attack on the CI’s

credibility, and we do not reassess witness credibility on appeal. See Jackson v. State,

890 N.E.2d 11, 15 (Ind. Ct. App. 2008) (noting that court on appeal will not reweigh

evidence in reviewing claim of evidentiary error).

Stewart now claims only that the recordings were of insufficient quality to be

intelligible and enlightening to the jury. We disagree. We have listened to the recordings

and find them to be quite intelligible, considering the conditions of their recording. There

are parts that are hard to understand or outright unintelligible, but not due to the quality

of the recordings themselves as much as to the fact that the speakers were talking over

one another, mumbling, or drowned out by other noises such as traffic and the radio.

Suffice it to say that the recordings are of sufficient quality that they could be intelligible

and enlightening to the jury, without the jury having to resort to speculation. Thus, the

trial court did not abuse its considerable discretion in admitting these recordings into

evidence. See Sharp v. State, 534 N.E.2d 708, 712 (Ind. 1989) (holding that admission of

5 recorded conversation was not an abuse of discretion where, although occasional static

interrupted recorded conversation and television noise was audible, the recording was

sufficiently clear that the jury was not forced to speculate as to the content of the

recordings); Fassoth v. State, 525 N.E.2d 318, 324 (Ind. 1988) (concluding that

admission of tape recording was proper even though it contained sounds of static and

interference because the portion played to the jury was sufficiently audible to reveal that

the parties were in the midst of a drug sale).1

B. Admission of the Transcripts

Stewart also complains that the trial court improperly admitted the transcripts

made from the recordings into evidence. A trial court has the discretion to allow the use

of a transcript, as an aid for the jury to understand the recorded statement. Tobar v. State,

740 N.E.2d 106, 107 (Ind. 2000) (citing Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)).

In such cases, the trial court should instruct the jury that the transcript should not be

given independent weight and that jurors are to rely on what they hear rather than on

what they read when there is a difference. Id. Transcripts should not ordinarily be

admitted into evidence unless both sides stipulate to their accuracy and agree to their use

as evidence, as the best evidence of the statement or conversation is the recording itself.

Id.

1 Also, as noted in Fassoth, “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.’” Id. Where a hidden recording device is worn underneath clothing, and the informant is moving in and out of a vehicle, some “interference and static on the tape [are] inevitable.”

6 Here, it appears that although the trial court admitted the transcripts into evidence,

Stewart never stipulated as to the accuracy of the transcripts. Therefore the admission of

the transcripts was improper. See id. Still, reversal is not necessarily required, as

Stewart has referred us to no specific discrepancy between the transcripts and the

recordings and, therefore, no prejudice. See Bryan v. State, 450 N.E.2d 53, 60 (Ind.

1983) (holding that defendant failed to demonstrate prejudice in providing jury with

transcript of recording where he could not identify where the transcript and the recording

differed); Ascherman v. State, 575 N.E.2d 277, 280 (Ind. Ct. App. 1991) (holding that

defendant had not established reversible error where, despite erroneous admission of

transcripts, defendant referred to no specific discrepancy between the recorded

conversations and the transcripts thereof); see also Sharp v. State, 534 N.E.2d 708, 712-

13 (Ind. 1989) (holding that providing the jury with transcripts of recording was harmless,

cumulative evidence where defendant had not shown how single discrepancy between the

recording and the transcript prejudiced him).

Additionally, we cannot ignore that the trial court here instructed the jury as

follows:

Audio recordings have been admitted as evidence in this case. Transcripts of those recordings were also admitted and provided to you as the audio recordings were played. The transcripts should not be considered as substantive evidence and were provided as an aid to you in listening to the audio recordings. If there were any differences between the audio recordings or [sic] transcripts or any differences in meaning that may arise from factors such as voice inflection or inaccuracies in the transcripts, you should rely on what you heard rather than what you may have read in the transcript. You should give evidentiary value, if any, to the audio recordings only.

7 Tr. p. 213 (emphasis added).2

In Tobar, our supreme court held that the trial court erroneously admitted the

transcript of defendant’s statement to the police but concluded that the error was harmless,

specifically noting that the trial court admonished the jury that the transcript was

provided only as an aid and that the recording was the evidence to consider if there were

any discrepancy between the recording and the transcript. 740 N.E.2d at 108. Similarly,

in Bryan, in holding that the defendant had failed to establish prejudice in the admission

of the transcripts, our supreme court noted that the trial court in that case gave such an

instruction or admonishment to the jury. 450 N.E.2d at 60; see also Sharp, 534 N.E.2d at

712-13 (Ind. 1989) (noting that, upon defendant’s objection to providing the jury with

transcripts, trial court admonished the jury that their determination should be based upon

what they heard on the recordings and not what they read in the transcripts and that it was

their job to determine whether there were variances between the tapes and the transcripts).

Likewise, in the case before us, the jury was properly instructed concerning the admitted

transcripts. With that instruction, and considering Tobar, Bryan and Sharp, the trial

court’s error was harmless.

Conclusion

The trial court did not abuse its discretion when it admitted the audio recordings of

the CI’s telephone calls and interactions with Stewart into evidence, and, in light of the

2 To the extent that Stewart now claims that this instruction was improper or inadequate, this claim is waived. He failed to object to the trial court’s instruction, and he fails to set forth a separate, cognizable argument with regard to instructional error.

8 trial court’s jury instruction concerning the transcripts of those audio recordings, the error

committed in admitting those transcripts was harmless error.

Affirmed.

BAKER, J., and MAY, J., concur.