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

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.
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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
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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
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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
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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.
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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
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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
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“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.
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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.
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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.
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