Wise v. State
2015 Ind. App. LEXIS 92
| Ind. Ct. App. | 2015Background
- Wise was convicted of one count of rape and five counts of criminal deviate conduct based largely on three video recordings found by his then-wife M.B. on his cell phone showing sexual acts she did not recall.
- M.B. played the phone videos and re-recorded the playback with a handheld camcorder; she also renamed the files and later provided the camcorder/DV D copies after the original phone was no longer available.
- Pretrial, Wise moved to exclude the re-recordings (arguing lack of authentication, best-evidence rule, and Confrontation Clause problems) and sought to compel testimony from M.B. about extramarital affairs to challenge the identity of the male in the videos; the trial court denied relief on both fronts.
- At trial M.B. identified herself and Wise in the videos; corroborating evidence included Wise’s admissions in correspondence and testimony from a friend about Wise’s statements that he drugged M.B. and recorded sex with her.
- The jury convicted Wise; on appeal he argued the trial court abused its discretion by admitting the re-recorded videos and by limiting discovery/testimony under Indiana Evidence Rule 412 (rape‑shield).
Issues
| Issue | Wise’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility/authentication of handheld re-recordings ("silent witness") | Videos are unauthenticated and altered (renamed); foundation inadequate for silent‑witness admission | M.B.’s testimony, chain of custody for tape/DVD, file date/time display, and admissions identify content and establish foundation | Trial court did not abuse discretion; foundation sufficient under silent‑witness framework |
| Best‑evidence rule (originals vs. duplicates) | Originals on phone unavailable; duplicates unfair because of renaming and delay | Originals were lost when phone was replaced; duplicates admissible under Rule 1004(a) when originals lost not by proponent in bad faith | Admission proper under Rule 1004(a); no reversible error |
| Confrontation Clause | Admission of recordings violated right to confrontation absent opportunity to cross‑examine declarant of automated recording | M.B. testified about obtaining and identifying recordings and was cross‑examined; confrontation satisfied | No Confrontation Clause violation; cross‑examination opportunity was provided |
| Rape‑shield discovery (Evid. R. 412) / compel testimony about extramarital affairs | Needed to explore other possible male participants/alternative identity of male in videos | Trial court limited discovery after written sworn denial by M.B.; further inquiry speculative and protected by Rule 412 | Trial court did not abuse discretion in denying motion to compel or permitting the questions at trial; exclusion not prejudicial |
Key Cases Cited
- Bergner v. State, 397 N.E.2d 1012 (Ind. Ct. App. 1979) (adopted "silent witness" theory for photographic evidence and described foundation/chain‑of‑custody concerns)
- McHenry v. State, 820 N.E.2d 124 (Ind. 2005) (applied silent witness standard to video recordings)
- Knapp v. State, 9 N.E.3d 1274 (Ind. 2014) (distinguished foundational requirements for demonstrative vs. silent witness evidence)
- Mays v. State, 907 N.E.2d 128 (Ind. Ct. App. 2009) (standard that evidentiary admissibility rests within trial court’s discretion)
- Levi v. State, 627 N.E.2d 1345 (Ind. Ct. App. 1994) (speculation about alteration of evidence insufficient to bar admission)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause prohibits testimonial hearsay admitted without opportunity for cross‑examination)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (laboratory/testimonial reports and right to cross‑examination)
- Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (Confrontation Clause does not guarantee all pretrial discovery; guarantees opportunity for effective cross‑examination)