Lyle D. Tucker v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2016
• Docket: 60A01-1506-CR-532
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 9:01 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 Patricia Caress McMath Gregory F. Zoeller Indianapolis, Indiana Attorney General

Brian Reitz Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lyle D. Tucker, January 29, 2016 Appellant-Defendant, Court of Appeals Case No. 60A01-1506-CR-532 v. Appeal from the Owen Circuit Court State of Indiana, The Honorable Erik C. Allen Appellee-Plaintiff Trial Court Cause No. 60C01-1406-FA-286

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 1 of 10 Case Summary [1] Lyle Tucker sold methamphetamine on three separate occasions to informants

who were recording the transaction for the Bloomington Police Department.

Tucker appeals the trial court’s decision to admit these recordings at his trial for

dealing in methamphetamine. He argues that the State failed to establish an

adequate foundation for the recordings under the silent witness theory and that

his rights under the Confrontation Clause were violated. Underlying both

arguments is the fact that none of the three informants who recorded Tucker

selling them the methamphetamine appeared at trial. However, there is no

requirement that the informants testify to adequately establish a foundation

under the silent witness theory. Here, the trial court reasonably relied on the

testimony of the detectives to establish a foundation for admitting the video

recordings. Moreover, the Confrontation Clause applies to testimonial hearsay.

The videos at issue in this case are not hearsay. Therefore, we affirm the trial

court’s admission of the videos into evidence.

Facts and Procedural History [2] Between April 24 and June 10, 2014, Bloomington Police Department

Detective Erick Teuton used three different informants to conduct three

controlled buys of methamphetamine from Lyle D. Tucker. The first buy was

executed on April 24 by informant A.B. working in conjunction with

Bloomington Police Department Detective Christopher Scott. The second

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 2 of 10 controlled buy was carried out by informant J.S. on May 27. The final buy, on

June 10, was made by informant J.N.

[3] The procedure followed by Detective Teuton for each of the controlled buys

was substantially similar. He met the informant at a pre-arranged location.

Detective Teuton searched the informant for money or drugs—checking the

informant’s clothing, hair, and mouth. Because informants J.S. and J.N. drove

themselves to Tucker’s home, Detective Teuton also searched their cars. No

contraband was found in the searches for any of the three informants. After the

search, Detective Teuton showed each informant how to hold the recording

device that would be used to capture video evidence of the controlled buy. A.B.

was given a recording device disguised as a cell phone cover. J.S. and J.N.

were each given a recording device disguised as a key fob. All three informants

were instructed not to turn the device off and not to touch any buttons on the

recording device. Once the training was complete, the informants were given

the controlled funds to make the purchase and the recording device. Detective

Teuton turned on the recording devices for informants J.S. and J.N. Detective

Scott turned on the recording device for A.B. while he was driving her to

Tucker’s house.

[4] After each of the controlled buys, the informant met Detective Teuton at a pre-

arranged location. In A.B.’s case, because Detective Scott drove her to

Tucker’s home, the methamphetamine and the recording device were already

turned over to Detective Scott. Detective Scott turned off A.B.’s recording

device and gave both the methamphetamine and the device to Detective Teuton

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 3 of 10 when he and A.B. arrived at the location. J.S. and J.N. returned the

methamphetamine and the still-running recording devices directly to Detective

Teuton. Detective Teuton turned off J.S.’s and J.N.’s recording devices. He

took the drugs and devices back to the Bloomington Police Department where

he logged the methamphetamine into evidence. Detective Teuton downloaded

the video from each recording device and transferred it to a DVD, which he

reviewed to be sure that it was continuous, and that there were no indications

the device had either malfunctioned or been turned off and on again while in

the informant’s possession. Detective Teuton logged the DVD into evidence by

placing his case number, name, and item number on the back of it. An

evidence technician placed the evidence sticker on the DVD as well. Before

trial, Detective Teuton verified that the video on the DVD was the same video

he reviewed when it was initially downloaded.

[5] On June 11, after the last controlled buy, Detective Teuton obtained a search

warrant for Tucker’s home and for the vehicles on his property. A group of

officers went to Tucker’s home, but he was not there. Detective Teuton saw

Tucker arrive in a small, red pickup truck, and then immediately leave in a

silver minivan. Tucker returned between twenty and thirty minutes later in a

large, blue pickup truck. He was arrested when he got out of the blue truck and

officers began searching his house. The officers recovered two glass smoking

pipes, plastic baggies, and a scale from the house.

[6] Officers found the silver minivan a few hundred yards east of Tucker’s property,

unoccupied and pulled halfway off the road. Detective Teuton obtained a

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 4 of 10 search warrant for the minivan and he took the keys to the minivan from

Tucker. Inside the van, under the driver’s seat, officers found a black pouch

containing smaller bags that held methamphetamine. They also found a black

pouch with Tucker’s name on it, papers that belonged to Tucker, and a

checkbook with Tucker’s name on it.

[7] The State initially charged Tucker with five counts: (I) Class B felony dealing in

methamphetamine for the April 24, 2014 sale to A.B.; (II) Class A felony

dealing in methamphetamine for the May 27 sale to J.S.; (III) Class B felony

dealing in methamphetamine for the June 10 sale to J.N.; (IV) Class A

misdemeanor possession of paraphernalia; and (V) Class D felony maintaining

a common nuisance. The State later added two counts: (VI) Class A felony

dealing in methamphetamine based on the methamphetamine found in the

minivan; and (VII) Class D felony possession of marijuana.

[8] Detectives Teuton and Scott testified at trial, describing the procedure used to

obtain video of the controlled buys. However, none of the three informants

testified as none of them could be located and all three were wanted on

unrelated warrants. The three videos were admitted into evidence and shown

to the jury over Tucker’s objection. The jury returned a verdict of guilty on

Counts I through VI. Count VII was dismissed with prejudice on the motion of

the State. Tucker now appeals.

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 5 of 10 Discussion and Decision [9] Tucker argues that the trial court abused its discretion when it admitted the

recordings of the three controlled buys. He claims that the foundation for the

recordings was inadequate under the silent witness theory and that admitting

the recordings without the opportunity to cross-examine the three informants

violated his rights under the Sixth Amendment Confrontation Clause.

[10] We review the trial court’s ruling on the admission of evidence for an abuse of

discretion. Vaughn v. State, 13 N.E.3d 873, 879 (Ind. Ct. App. 2014), trans.

denied. We reverse only where the decision is clearly against the logic and effect

of the facts and circumstances. Id. Even if the trial court’s decision was an

abuse of discretion, we will not reverse if the admission constituted harmless

error. Id.

I. Silent Witness Foundation [11] The silent witness theory permits the admission of photographs as substantive

evidence. Bergner v. State, 397 N.E.2d 1012, 1017 (Ind. Ct. App. 1979). The

theory includes the admission of video recordings, provided there is a strong

showing of authenticity and competency. McHenry v. State, 820 N.E.2d 124,

128 (Ind. 2005). The sufficiency of the foundation is left to the discretion of the

trial court. Bergner, 397 N.E.2d at 1017. In general, there must be a showing

that the videotape has not been altered. Mays v. State, 907 N.E.2d 128, 132

(Ind. Ct. App. 2009), trans. denied. In cases involving automatic cameras, “there

should be evidence as to how and when the camera was loaded, how frequently

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 6 of 10 the camera was activated, when the photographs were taken, and the processing

and chain of custody of the film after its removal from the camera.” Id.

(quoting Kindred v. State, 524 N.E.2d 279, 298 (Ind. 1988)). There is not,

however, a requirement that the informant in the video testify that the video

accurately represents what occurred. Id. at 131.

[12] Here, Detective Teuton testified regarding the nature of the recording devices

used and how the devices were prepared for recording. The informants were

not told how to turn the recording devices on or off; rather, a detective turned

on the device before handing it to the informant and turned off the device when

the informant returned with it. Moreover, Detective Teuton testified that “you

can always tell if the recording has been turned off or if it’s been turned off and

turned back on.” Tr. p. 197. The recordings were continuous; there were no

“black screens” indicating tampering or malfunction of the recording device.

Detective Teuton explained the chain of custody after the videos were recorded.

He took the recording devices to his office, downloaded the videos, transferred

them onto DVDs, and logged the DVDs into evidence. He viewed the video at

the time he made the DVD and reviewed it shortly before trial to verify that it

had not been altered in any way. Detective Teuton’s testimony supports the

trial court’s inference that the video was not altered either while it was recorded

or in the subsequent handling.

[13] Tucker contends that the failure of the three informants to testify precludes

sufficient authentication under the silent witness theory because there was no

one to testify as to how they actually operated the recording devices and

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 7 of 10 “whether they turned them off at any point during the transactions they

recorded.” Appellant’s Br. p. 7. He further argues that the informants did not

testify that Tucker is the man selling them methamphetamine in the videos,

which Tucker claims is an important factor in authenticating the recording. We

find these arguments unpersuasive. The burden of proof for authenticity and

competency is relative certainty. See Kindred, 524 N.E.2d at 298-99 (quoting

Bergner, 397 N.E.2d at 1017). The trial court could reasonably conclude from

Detective Teuton’s testimony that any break in recording would have been

apparent in the video. As to the identity of the person selling the drugs to the

informants in the recordings, Detective Teuton testified that he watched the

three recordings and that they were the recordings of the informants purchasing

methamphetamine from Tucker. In this case, Detective Teuton’s testimony

was sufficient to meet the authentication requirements.1

[14] In summary, the trial court’s determination that the State laid a proper

foundation for the admission of the video evidence was not clearly against the

logic and effect of the facts and circumstances. See Vaughn, 13 N.E.3d at 879.

We conclude that the trial court did not abuse its discretion in admitting the

video evidence of the three controlled buys.

1 Tucker cites Bergner, Mays, and Wise v. State, 26 N.E.3d 137 (Ind. Ct. App. 2015), trans. denied, in support of his argument that identification is an important factor in authentication. We agree. While identity of the parties in the video is a factor, we do not see a requirement that identity be established by a particular witness or class of witnesses.

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 8 of 10 II. Confrontation Clause [15] Tucker’s second argument is that showing the recordings of the three controlled

buys, in the absence of the informants who carried the recording devices,

violated his Sixth Amendment right to confront the witnesses against him.

Tucker contends that because “he could not cross-examine the videos, they

were not admissible.” Appellant’s Br. p. 9.

[16] The Sixth Amendment provides that “the accused shall enjoy the right . . . to be

confronted with the witnesses against him[.]” The Confrontation Clause

prohibits the admission of “testimonial hearsay” where the defendant will not

have the opportunity to cross-examine the declarant. Crawford v. Washington,

541 U.S. 36, 68 (2004). However, it “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.”

Id. at 59 n.9.2 “Thus, if a statement is either nontestimonial or non-hearsay, the

federal Confrontation Clause will not bar its admissibility at trial.” Williams v.

State, 930 N.E.2d 602, 607-08 (Ind. Ct. App. 2010), trans. denied.

[17] Here, the statements in the videos are not hearsay. First, Tucker’s statements,

as the defendant, are not hearsay because they are statements of a party

opponent. See Ind. Evidence Rule 801(d)(2)(A). The informants’ statements

2 The videos in this case are distinguishable on this point from Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), where the evidence at issue was three sworn statements by lab technicians which delivered the results of laboratory testing and which were offered to prove that the substance taken from the defendant was cocaine. Because the lab reports were admitted to prove the truth of the statements in the lab reports, they were hearsay.

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 9 of 10 are, also, not hearsay as their contributions to the video conversation were not

admitted for the truth of the matters asserted. See Evid. R. 801(c). Rather, they

were properly admitted to place Tucker’s statements in context. “Statements

providing context for other admissible statements are not hearsay because they

are not offered for their truth.” Williams, 930 N.E.2d at 609 (quoting United

States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006)). Because the statements

contained in the videos are not hearsay, the Confrontation Clause does not bar

their admission. See Williams, 930 N.E.2d at 607-08.

[18] Finding the foundation for the videos adequate under the silent witness theory

and that the videos did not violate Tucker’s rights under the Confrontation

Clause, we affirm.

Bailey, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016 Page 10 of 10