Floyd D. Stewart v. State of Indiana ( 2013 )

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MEMORANDUM DECISION – NOT FOR PUBLICATION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
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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
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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
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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
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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.”
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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.
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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.
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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.
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