Michael Francis Corley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 27 2016, 8:03 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amanda O. Blackketter Gregory F. Zoeller
Blackketter Law, LLC Attorney General of Indiana
Shelbyville, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Francis Corley, May 27, 2016
Appellant-Defendant, Court of Appeals Case No.
73A01-1507-CR-914
v. Appeal from the Shelby Circuit
Court
State of Indiana, The Honorable Charles D.
Appellee-Plaintiff O’Connor, Judge
Trial Court Cause No.
73C01-1501-F5-8
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 1 of 8
[1] Michael F. Corley (“Corley”) was convicted in Shelby Circuit Court of Level 5
felony trafficking with an inmate, Level 5 felony bribery, and Class A
misdemeanor trafficking with an inmate. On appeal, Corley claims that the trial
court abused its discretion by admitting into evidence the recordings of two jail
telephone calls between Corley and two unknown individuals.
[2] We affirm.
Facts and Procedural History
[3] At the time relevant to this appeal, Jerrica Kirby (“Kirby”) was a jail officer
employed by the Shelby County Sheriff’s Department. As part of her duties as a
jail officer, Kirby transported inmates, checked on inmates, and passed out
food, clothing, and supplies to the inmates.
[4] In December 2014, one of the inmates of the Shelby County Jail at the time was
Corley. Corley began to “jokingly” ask Kirby to bring tobacco into the jail for
him. Kirby eventually agreed to bring tobacco into the jail for Corley, knowing
that tobacco was prohibited inside the jail. Kirby and Corley agreed that she
would bring tobacco into the jail and give it to Corley in exchange for money.
To arrange this, Kirby allowed Corley to use her cell phone, even though cell
phones were also banned inside the jail. After Corley contacted his sources
outside the jail using Kirby’s cell phone, Kirby talked with Corley’s long-time
friend, Adam Bennett (“Bennett”) about obtaining the tobacco. Corley told
Kirby that Bennett would provide her with the tobacco and money for her
involvement.
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 2 of 8
[5] Thereafter, Kirby telephoned Bennett, and the two agreed to meet at a local
drug store parking lot. At the parking lot, Bennett approached Kirby’s car and
handed her $100 and a one-pound bag of pipe tobacco. Kirby later divided the
tobacco into smaller portions and placed these portions inside zip-top sandwich
bags. The next time she went to work, Kirby took the tobacco into the jail and
slid it to Corley under the door to his jail cell while making her rounds. Kirby
repeated her actions at least two more times.
[6] Another jail inmate, B.B., noticed that Corley was reselling tobacco in the jail.
Corley falsely told this inmate that he was getting the tobacco through the jail
laundry system. B.B. noticed, however, that Corley and Kirby had several
interactions, with Kirby stopping at the door to Corley’s cell.
[7] Shelby County Jail Commander Jerad Sipes (“Sipes”) began to investigate the
presence of tobacco in the jail. Eventually Sipes spoke with B.B., who informed
him of Corley’s interactions with Kirby. Sipes then reviewed jail surveillance
video, which showed Kirby bending down in front of Corley’s cell door. He
also reviewed audio recordings of jail phone calls made by Corley. In one of
these recorded calls, Corley tells the woman to whom he is talking that he
found a “mule” and asks her for $100. Ex. Vol., State’s Ex. 2. He also tells her,
“I need you and Adam to . . . that’s part of the deal,” and “I really need you
guys to come through with something for me.” Id. In another call, he refers to
person on the line as “Adam” and tells him, “I’m gonna try to get that hundred
back to you.” Id., State’s Ex. 4.
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 3 of 8
[8] When Kirby was confronted by her superiors, she admitted that she had
trafficked with an inmate. She was then fired and turned over various items in
her possession belonging to the Sheriff’s Department. She also turned over the
bag of tobacco. Kirby was later charged with the crime of trafficking with an
inmate. Bennett, who refused to cooperate with the investigation, was also
charged with trafficking with an inmate and bribery.
[9] On January 28, 2015, the State charged Corley with three counts: Count I,
Level 5 felony trafficking with an inmate; Count II, Level 5 felony bribery; and
County III, Class A misdemeanor trafficking with an inmate. The State later
added an allegation that Corley was a habitual offender.
[10] A three-day jury trial was held on June 8 – 10, 2015. At trial, the State offered
into evidence the video recordings from the surveillance cameras and the
recorded jail telephone calls into evidence. The trial court admitted these over
Corley’s objection. Kirby testified against Corley and admitted that she had
provided Corley with tobacco and a cell phone and had received $100 in
exchange. At the conclusion of the trial, the jury found Corley guilty as
charged. The trial court subsequently sentenced Corley to four-and-one-half
years’ incarceration on both Level 5 felony counts and to one year on the
misdemeanor count. The trial court enhanced the sentence on Count II by
thirty months and ordered the sentences on all counts to be served concurrently,
for an aggregate term of eighty-four months, i.e. seven years. Corley now
appeals.
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 4 of 8
Standard of Review
[11] Corley contends on appeal that the trial court erred in admitting into evidence
two of the recordings made of his jail telephone calls. Decisions regarding the
admission of evidence are entrusted to the sound discretion of the trial court,
and we review the court’s decision only for an abuse of that discretion. Rogers v.
State, 897 N.E.2d 955, 959 (Ind. Ct. App. 2008), trans. denied. A trial court
abuses its discretion if its decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the court has misinterpreted the
law. Id.
Discussion and Decision
[12] Corley argues that the trial court erred in admitting into evidence State’s
Exhibits 5 and 6 because only one of the parties to the conversation was
authenticated. Corley notes that it has been held that “the identities of both
parties must be authenticated before admitting a telephone call.” Young v. State,
696 N.E.2d 386, 389 (Ind. 1998) (citing King v. State, 560 N.E.2d 491, 494 (Ind.
1990)); see also Johnson v. State, 699 N.E.2d 746, 749 (Ind. Ct. App. 1998)
(noting that a recording is not admissible unless the voices contained thereon
are identified). A caller’s identity can be established by circumstantial evidence
and need not be proven beyond a reasonable doubt. Young, 696 N.E.2d at 389.
[13] Here, Corley does not deny the presence of evidence establishing that his voice
was one of the voices on Exhibits 5 and 6. Instead, he correctly notes that the
identity of the other voices on these calls was never established. The State
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 5 of 8
responds by noting that our courts have repeatedly upheld the admission of
recorded jail telephone calls. See, e.g., Baer v. State, 866 N.E.2d 752, 762 (Ind.
2007) (affirming trial court’s admission of recording of jail telephone call made
by defendant to his sister). However, in Baer, the identity of both parties on the
call was apparently known. The other cases cited by the State are readily
distinguishable.
[14] In Dorsey v. State, 802 N.E.2d 991 (Ind. Ct. App. 2004), the defendant argued
that the conversations on a recorded phone call was hearsay. This court held
that the unidentified speaker was acting as the defendant’s agent and that the
statements were therefore not hearsay but the statement of a party. Id. at 994-95
(citing Ind. Evidence Rule 801(d)(2)(D)). Thus, in Dorsey, there was no question
regarding the authentication of the unidentified speaker on the recording.
[15] In Steinberg v. State, 941 N.E.2d 515 (Ind. Ct. App. 2011), the identity of the
parties on the recorded call were known to be the defendant and his parents. On
appeal, the defendant claimed that the admission of the recordings was
improper under both the Federal Wiretap Act and the Indiana Wiretap Act and
that recordings contained hearsay and irrelevant and unduly prejudicial
information. Again, there was no question regarding the authentication of
voices on the call.
[16] Thus, Corley has a colorable argument that the identity of the other participant
to the calls should have been established before Exhibits 5 and 6 were admitted
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 6 of 8
into evidence. Even if we assume arguendo that these exhibits were improperly
admitted, though, it does not require us to reverse Corley’s convictions.
[17] We will not reverse a defendant's conviction if the error was harmless. Harrison
v. State, 32 N.E.3d 240, 254 (Ind. Ct. App. 2015), trans. denied. Generally, errors
in the admission of evidence are to be disregarded unless they affect the
substantial rights of a party. Id. An error is considered to be harmless if
substantial independent evidence of guilt satisfies the reviewing court that no
substantial likelihood exists that the challenged evidence contributed to the
conviction. Id.
[18] Here, we conclude there was substantial independent evidence of Corley’s guilt
other than the challenged recordings. That evidence satisfies us that there is no
substantial likelihood that the admission of these two recorded phone calls
contributed to the jury’s verdict. First, the statements on the challenged
recorded calls are brief and not terribly incriminating. On one, Corley admits
that the tobacco was “delicious.” Ex. Vol., State’s Ex. 6. On the other, the
unidentified man with whom Corley is talking states that he was “nervous” and
afraid that “something was gonna go bad.” Corley tells the man that he has
$160 in an account that he could release to the man, and the man responds that
he will “figure something out.” Id., State’s Ex. 5.
[19] However, the statements in the recordings pale in comparison to the other
evidence of Corley’s guilt: Corley admitted to B.B., his fellow inmate, that he
was distributing tobacco in the jail (although he falsely claimed to be obtaining
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 7 of 8
it through the laundry). Kirby admitted that, in exchange for $100, she gave
Corley tobacco by sliding bags of it under his cell door and unchallenged video
recordings from the jail show Kirby bending down in front of Corley’s cell.
Other unchallenged recorded telephone calls from the jail reveal that Corley
stated that he had found a “mule,” asked for $100, and told “Adam” that he
would repay him “that hundred.” Ex. Vol., State’s Ex. 2, 4. Given this rather
overwhelming evidence of Corley’s guilt, we can safely say that the admission
of State’s Exhibits 5 and 6 was, at most, harmless error.
[20] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 8 of 8