Music v. State

427 N.E.2d 1071, 1981 Ind. LEXIS 901
CourtIndiana Supreme Court
DecidedNovember 13, 1981
DocketNo. 980S383
StatusPublished
Cited by3 cases

This text of 427 N.E.2d 1071 (Music v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Music v. State, 427 N.E.2d 1071, 1981 Ind. LEXIS 901 (Ind. 1981).

Opinion

DeBRULER, Justice.

Charles Music, the appellant, was charged by an information with murder, Ind.Code § 35-42-1-1, and was convicted by a jury of the included offense of voluntary manslaughter, a class B felony, Ind.Code § 35-42-1-3. He was sentenced to a term of twenty years in prison. His motion to correct error was denied and this appeal follows.

The issue on appeal is whether Music was denied a fair trial because a transcript of a tape-recorded interview between himself and his counsel conducted at the county jail after his arrest, was intercepted and copied by an employee of the sheriff’s department.

In a hearing on his motion to correct error, Music sought to show that his attorney delivered an envelope to him at the Wabash County Jail where he was held following his arrest for the killing of his wife. The envelope contained a transcription of a tape-recorded interview between Music and his attorney. The recording was made by the attorney with Music’s knowledge, and he had requested a copy of the transcription for his records. Music sought to show that at the direction of a captain of the Wabash County Sheriff’s Office, a civilian employee of the county jail made a photocopy of the contents, and placed the photocopy in the file on Music’s case which was eventually seen by the prosecutor in charge of the case.

The envelope and the transcription were introduced in evidence at the hearing. In the interview Music related that he was looking for his estranged wife on the day of the killing and, suspecting that she was at the home of another man, he went to his trailer, obtained a sawed-off shotgun, went to the home of the other man, and found his wife there. When counsel asked Music what happened then, he said, “All I know is the gun discharged.” •

Music sought to show by his testimony at the motion to correct error hearing that the State used information improperly obtained from the interview to build its case. He argues on appeal that absent the information contained in the transcription he might have been found either not guilty, or guilty of a less serious lesser included offense than voluntary manslaughter. The appellant’s brief cites Procunier v. Martinez, (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224, and cases interpreting it, for the general, and unquestioned, proposition that mail coming to prisoners from courts or attorneys may be opened by prison authorities only in the presence of the prisoners, and only for the purpose of intercepting contraband, and [1073]*1073that the contents may not be censored except to the extent they contain escape plans or other information concerning proposed criminal activity, or encoded messages.

Music argues that he should be granted a new trial, even in the absence of a showing of prejudice flowing from the interception of the transcript, because the interception itself amounted to the denial of effective assistance of counsel, citing Coplon v. United States, (D.C.Cir.1951) 191 F.2d 749, cert. den. 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690.

In Coplon, the United States Court of Appeals, District of Columbia Circuit, held, inter alia, that the trial court should have afforded the appellant a hearing on her allegations that the government listened through a wiretapping device to her telephone conversations with her attorney before the trial and while it was going on. The case was remanded for a hearing to determine whether the alleged interceptions actually occurred. If they had, the district court was to “award a new trial at which the accused can be free of surreptitious interceptions of her telephone conversations with her counsel, and can enjoy the right of his effective assistance which is guaranteed by the Constitution.” Id. at 760. At the same time, however, the Court of Appeals concluded that none of the evidence could have been the result of intercepted telephone conversations, and held that the district court did not err in denying the motion for a new trial insofar as it was based on the theory that the government’s proof was obtained by, or arose from leads obtained through, the wiretapping.

The conclusion reached in Coplon is not viable in light of the doctrine of harmless constitutional error, Chapman v. United States, (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

The Supreme Court held in Chapman that not all trial errors that violate the Constitution automatically call for reversal, but “before a federal constitutional error can be held harmless, the court must be able to declare its belief that it was harmless beyond a reasonable doubt.” Id. at 828. See Greer v. State, (1969) 252 Ind. 20, 245 N.E.2d 158.

Here, we are not faced with a claimed trial error such as the admission into evidence of a defendant’s statement obtained in violation of his federal constitutional rights, but rather a claim that the entire criminal proceeding was tainted by the use of information obtained improperly.

In Chapman the Supreme Court adopted the following formulation from Fahy v. Connecticut, (1963) 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, of the question to be asked in reviewing claims of this kind: “Whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman v. United States, supra, 87 S.Ct. at 827.

After reviewing the evidence presented at the hearing on the motion to correct error, we find that the trial court could well have concluded that Music failed to show that any evidence in the trial was the fruit of the illegal interception. The evidence did establish that the envelope was intercepted and the contents copied. There was, however, sharply conflicting evidence about what became of the copy and who, if anyone, authorized the copying. Music asserted that prosecution witnesses must have read the transcription because it contained a transcriber’s mistake — a statement at variance with the statement he said he actually made during the interview. He attempted to show that Sheriff Tomson, in testifying about a statement Tomson said Music made voluntarily, gave a version of the facts containing the transcriber’s variance, thus revealing his acquaintance with the transcript. Our examination of the transcript reveals that in the interview with his attorney, Music said that he saw his wife in a tavern “with the owner, Bill Nord-man, and one other guy.” Sheriff Tomson testified at trial that Music gave him an oral statement after being advised of his right to remain silent and to have a lawyer. Asked about what Music told him, Tomson testified, “Well, [Music] stated that he was at the East End Tavern in North Manchester and his wife came in, she completely ignored him, she went to a table I believe it was talking to some other ladies.”

[1074]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Youngblood
849 N.E.2d 423 (Appellate Court of Illinois, 2006)
Music v. State
489 N.E.2d 949 (Indiana Supreme Court, 1986)
Malott v. State
485 N.E.2d 879 (Indiana Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
427 N.E.2d 1071, 1981 Ind. LEXIS 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/music-v-state-ind-1981.