Ellis Thomas v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK R. RAGAINS JEFFREY A. MODISETT
Smith, Ragains & Cotton Attorney General of Indiana
Anderson, Indiana
STEPHEN K. TESMER
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ELLIS THOMAS, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 48S00-9802-CR-81
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON SUPERIOR COURT
DIVISION III
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9401-CF-017
ON DIRECT APPEAL
September 6, 2000
RUCKER, Justice
Case Summary
A jury convicted Ellis Thomas of murder, attempted murder, attempted
robbery, and attempted carjacking. The trial court sentenced him to 110
years imprisonment. In this direct appeal, Thomas contends the trial court
erred in introducing into evidence a letter Thomas authored and a telephone
conversation recorded between Thomas and another person. We affirm.
Facts
In the early morning hours of October 3, 1993, Marvin McCloud and
Damon Nunn were seated in McCloud’s car in the parking lot of an after-
hours night club. Thomas, along with his brother Walter Goudy, a cousin
Lamont Thomas, and an acquaintance Kaidi Harvell, saw McCloud’s car and
devised a plan to take the rims and tires. As McCloud began to drive away,
two gunmen approached the car with handguns drawn and began firing. McCloud
died as a result of a gunshot wound to the chest. Nunn survived the
fusillade although he was severely injured by five gunshot wounds to the
face, chest, and leg. All four men were charged in the shootings. Under
terms of an agreement, Harvell pleaded guilty to assisting a criminal. He
testified at trial that Thomas and Goudy were the shooters. At a separate
trial, in which Harvell also testified, Goudy was convicted of murder,
attempted murder, attempted robbery, and attempted carjacking. See Goudy
v. State, 689 N.E.2d 686 (Ind. 1997).
While Goudy’s case was pending, Thomas wrote a letter to the presiding
judge claiming that he, and not Goudy, was responsible for shooting McCloud
and Nunn. In fact, Thomas claimed that he and Harvell were the shooters.
Thomas also telephoned Goudy’s attorney making the same representation.
The conversation was recorded. Over Thomas’ objection at trial, the State
introduced into evidence both the letter and the recorded conversation.
Ultimately the jury returned a verdict of guilty as charged, and the trial
court sentenced Thomas to 110 years in prison. This appeal followed.
Additional facts are set forth below where relevant.
Discussion
Thomas contends the trial court erred in admitting the letter and
recorded conversation into evidence. He argues the State failed to lay a
proper foundation for either exhibit. “The requirement of authentication
or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims.” Ind. Evidence Rule 901(a). When evidence
establishes a reasonable probability that an item is what it is claimed to
be, the item is admissible. Lockhart v. State, 671 N.E.2d 893, 901 (Ind.
Ct. App. 1996). When a trial court has made a ruling concerning the
sufficiency of the foundation laid to justify the admission of evidence, we
review that decision for an abuse of discretion. State v. Walton, 715
N.E.2d 824, 828 (Ind. 1999).
I. Admission of the letter
The record shows the envelope in which the letter was contained bears
a postmark from Flagstaff, Arizona with a return address for “Mr. Ellis
Thomas 112188 Arizona State Prison, Winslow.” R. at 1077. Although the
postmark date on the envelope is unclear, the heading of the letter bears a
date of “12/06/95.” R. at 1074. At the time the letter was written,
Thomas was incarcerated in the Arizona State Prison located in Winslow,
Arizona. The record also shows that detectives Randy Tracy and Stan Young
of the Anderson Police Department traveled to Arizona and interviewed
Thomas while he was incarcerated. The letter makes reference to the
Tracy/Young interview. It also identified a person by the name of “Kaidi”
as being involved with Thomas in the shootings. Before the letter was
admitted as evidence, Kaidi Harvell testified that he was in fact present
when McCloud and Nunn were shot, and that Thomas was on the passenger side
of McCloud’s car during the shooting. Although Harvell’s testimony
regarding his own involvement in the crime differs from that described in
the letter, Harvell’s testimony nevertheless showed that the person who
authored the letter had knowledge about the events of the crime that were
not likely known by anyone in the Arizona State Prison other than Thomas.
Finally, the record reveals that as the letter requested, Thomas was
transported from Arizona to Indiana to testify at his brother’s trial. We
conclude there was sufficient evidence to support a finding that Thomas
authored the letter. Thus, the State laid an adequate foundation to meet
the requirements for authentication. The trial court did not abuse its
discretion by admitting the letter into evidence.
II. Admission of the recorded telephone message
The record shows that in July 1995 someone placed a call to the office
of Goudy’s trial attorney. The caller identified himself as Ellis Thomas,
Jr. and said he was calling from Arizona. Although the details are not
contained in the record, the call was prearranged, and the caller agreed
that it should be recorded. The investigator hired by Goudy’s attorney was
present and questioned the caller. Through a series of questions and
answers the caller gave a detailed forty-five minute statement concerning
the events leading up to, during, and after the shooting. As with the
letter, the caller made reference to the Tracy/Young interview and talked
about his and Kaidi’s involvement in the shooting. At a pre-trial hearing
on a motion to dismiss the charging information, Thomas conceded that it
was his voice on the recorded telephone interview.[1] Admitting the
recording into evidence at trial, the trial court ruled the recording had
been properly authenticated in part because of Thomas’ pre-trial
concession.
As a general rule a defendant’s pre-trial testimony can be used
against him at trial. Johnston v. State, 517 N.E.2d 397, 401 (Ind. 1988).
However, exceptions to this general rule have been established when a
defendant raises questions involving his rights in pre-trial matters. Id.
For example, testimony at a hearing on a motion to suppress is not
admissible at trial as evidence of the defendant’s guilt. Livingston v.
State, 542 N.E.2d 192, 194 (Ind. 1989). In like fashion, evidence that the
defendant entered a plea agreement and withdrew it prior to trial is
inadmissible at trial on the charge. Cambridge v. State, 428 N.E.2d 1252,
1254 (Ind. 1981). The exceptions were created to prevent the accused from
being placed in a position of having to sacrifice one right for another.
As the United States Supreme Court long ago observed, “[W]e find it
intolerable that one constitutional right [under the Fifth Amendment]
should have to be surrendered in order to assert another [under the Fourth
Amendment].” Simmons v. United States, 390 U.S. 377, 394 (1968) (ruling
defendants are protected against use of substantive evidence of their
testimony offered in support of a motion to suppress evidence). In this
case, the trial court’s reliance on Thomas’ pre-trial admission that the
voice on the recording was his own was improper for purposes of
authenticating the recording. Not only was Thomas asserting a statutory
right, see supra note 1, but also the record shows that Thomas made the pre-
trial admission upon cross-examination by the State. R. at 1083.
Nonetheless, the trial court did not err in admitting the recording
into evidence. A caller's identity can be established by circumstantial
evidence and need not be proven beyond a reasonable doubt. Young v. State,
696 N.E.2d 386, 389 (Ind. 1998); King v. State, 560 N.E.2d 491, 494-95
(Ind. 1990). As we have already indicated, when evidence establishes a
reasonable probability that an item is what it is claimed to be, the item
is admissible. Lockhart, 671 N.E.2d at 901. Independent of Thomas’ pre-
trial admission, the circumstantial evidence recounted above was sufficient
to authenticate the recording.
Conclusion
We affirm the trial court’s judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.
-----------------------
[1] Thomas was actually challenging the propriety of the State filing
charges against him when he returned to Indiana to testify on behalf of his
brother. Indiana Code § 35-37-5-8 provides,
If a person comes into this state in obedience to a subpoena directing
him to attend and testify in a criminal prosecution in this or any
other state, he shall not while in this state pursuant to such
subpoena be subject to arrest or the service of process, civil, or
criminal, in connection with matters which arose before his entrance
into this state under subpoena.
Thomas pursed an interlocutory appeal challenging the denial of his motion
to dismiss. The Court of Appeals affirmed in a Memorandum Decision.
Thomas v. State, No. 48A02-9604-CR-193 (Ind. Ct. App. Dec. 16, 1996). The
issues raised in that appeal are not before us here.