*1 hаving demonstrated, judgment No reversible error been of the trial court is affirmed.
Affirmed.
Robertson, C.J., Lowdermilk, J., concur.
Doyne Larimer v. State Indiana. April 24, Rehearing July [No. 2-374A62. Filed denied 1975.] *2 Bailey Conn, Indiana, Harriette Public Defender of Darrell Ellis, Deputy F. Defender, appellant. Public for Sendak, Attorney General, L. Colker,
Theodore Robert F. General, Attorney appellee. Assistant for charged Larimer been had with incest.1 Staton, P.J.— trial, During jury objected his his defense counsel to De relating testimony Likens’ tective to Larimer’s confession. confession, This contended, the defense counsel was involun given by tarily by Larimer. The had confession been made interroga Larimer near the a four end of and one-half hour midnight prosecutor’s tion in the which ended after office. present interroga Larimer’s defense counsel was not at the objection tion. The trial court overruled to Detective testimony. Later, tape recording Likens’ the State offered a purpose impeaching into evidence for the Larimer. tape during had made four been and one-half inter hour rogation prosecutor’s in the It office. contained references prior to Larimer’s homosexual conduct as well to his as treatment for mental illness institutional at Muscatatuck. These references were not deleted before the was heard jury. appeal to following Larimer’s this Court raises issues for our review:
Issue One: Did the triаl court err it when overruled to Detective Likens’ relating to Larimer’s confession? Two: Issue Was admission of Larimer’s confession
harmless error? 35-1-82-1; (Burns IC Ind. Ann. Stat. 1956). § 10-4206 steps appropriate Issue Three: Must trial court take prejudicial matters delete immaterial placed not upon which are a germane impeachment? purpose of hеaring separate evidentiary Our review concludes that a presense hearing required out on issue of The trial court must make voluntariness. separate Lari determination the voluntariness of mer’s confession before is admitted into 1971, 35-5-5-1; 9-1634 IC Ind. Ann. mandated Stat. § Supp.). (Burns further the trial We conclude separate voluntariness court’s failure make dеtermina admitting tion Larimer’s confession into evidence before matters prejudicial The immaterial harmless error. not pur necessary impeachment tape, which on the *3 trial reverse poses, deleted should have been the court. We judgment, the court and we instruct trial the trial court’s grant Larimer a new trial.
I. and Harmless Error Voluntarinеss give by the State to Likens was called Detective concerning Larimer’s counsel Larimer’s confession. defense that the not volun- objected the reason confession was hearing evidentiary given An re- tarily by Larimer. was court, quested upon the issue of voluntariness. hearing jury, the and overruled presence determining error. issue. This the voluntariness without 35-5-5-1; (Burns 1971, 9-1634 1974 Ind. Ann. Stat. IC § trial court to hear evidence out of Supp.) mandates jury issue hearing of determine presence admitting confessions in evidence. before of voluntariness provides: 1971, 35-5-5-1 IC brought by prosecution Indi- any the state of “In criminal confession, (5) ana, in section here- as defined a 9-1638] [§ voluntarily given. if in evidence it is of, admissible shall be evidenсe, is received in the trial such confession Before 'presence healing shall, jury,
judge out of 676 judge determine issue as to voluntariness. If the trial voluntarily made, it determines that the confession was judge shall be the trial shall admitted evidence and
permit jury to hear relevant evidence the issue jury give voluntariness shall instruct such weight all to the confеssion as the feels under deserves see, (Our Emphasis). circumstances.” Also Johnson 517, 683, 688-89, (1972), State 284 N.E.2d 258 The trial court’s make “. . failure to reliable determina . a tion . . voluntarily that .” confession was in fact ren dered constituted a violation of Larimer’s Four Fifth and rights, 1971, teenth Amendment as well as a violation of IC (1964), 368, 377, Jackson v. Denno 378 U.S. 84 § 35-5-5-1. 1774, 12 S.Ct. L.Ed.2d 908. This federal constitutional error requires whether, that we determine federal as matter of law, beyond this error was harmless a reasonable doubt under v. California Chapman the circumstances this (1967), case. 18, 824, 705; Greer v. State 386 U.S. 17 S.Ct. L.Ed.2d (1969), 20, Bauer v. 158; 252 Ind. App. 157 Ind. N.E.2d 364. guidance gleaned Chap- harmless error
Some
can be
from
California, supra,
man v.
fession—and determine doubt, would able an honest and fair-minded solely guilty on a verdict based have rendered remaining See Greer untainted evidence. 20, 245
252 Ind. N.E.2d 158. record—except Upon a in the of all review relating testimony confes- Larimer’s Detective Likens’ to beyond doubt conclude reasonable sion—we are unable to Larimer’s error contribute constitutional did not testimony of conviction. The case-in-chief consisted State’s daughters, Likens and Detective from Larimer’s two minor to corroborate tended certain circumstantial evidence which Larimer’s evi- testimony prosecuting of the witnesses. daughters’ testimony his which denied of his consisted denсe his allegations. Additionally, of he offered impeach credi- neighbors tended to relative which bility daughters. his of Lari- confession, jury’s resolution
Absent Larimer’s based substantially guilt or innocence would have been mer’s light powerful credibility In of the witnesses. on juror con- average impact a defendant’s probative testimony, guilt balance of thе the delicate fession of constitutional that the impossible for us conclude would A new beyond doubt. a reasonable was harmless error required. will be
II. Recording by Tape Impeachment attempted to introduce the The State during case-in-chief. An its confession Larimer’s im- prejudicial matters contained which Later, Lari- confession sustained. when material *5 678 behalf,
mer act incest testified on his denied own he the rebuttal, again the the and In confession. the State offered tape Again, objec- impeach the same evidence to Larimer. tape, tion was made to the but court overruled objection. Larimer’s the over- up defense counsel followed ruling objeсtion request of his with a camera an in tape review prejudi- so that trial court delete could cial and immaterial matters. The trial court defense refused request. counsel’s playing tape, After the trial court disregard tape admonished the to the statements on the pertaining history to homosexuality Larimer’s and mental illness. confession,
After Larimer’s 258 Lamar 504, 795, Supreme Ind. 282 N.E.2d was decided the Indiana State, spe
Court.2 supra, Lamar v. establishes five recordings.3 tape cific standards for the admission of requires party One of five these standards that offering recording show contain “. . . not does matter otherwise not admissible . . in evidence. .” 258 513, Therefore, at 282 N.E.2d at 800. an recording prejudiсial immaterial contains matters and issue, requires in addition the matter at the trial court tape recording review the appropriate steps and to take such necessary as prejudicial to delete the immaterial material. and Supreme State, Our Indiana supra, Court in Lamar v. 510, Ind. at 282 N.E.2d at stated: objectionable portions “If thе eliminated, however, can be justification we see no exposure for their jury. to the To matters, reconcile such judge, the trial in the jury, absence of the should be awith furnished typewritten transcription recordings and should fully appeal 2. This briefed and submitted to this Court September 10, 1974. Lamar 3. The Court held that recordings admission of sound preceded disclosing be should (1) recording foundation that: correct; (2) is authentic freely elicited was voluntarily given; (3) required warnings given all and all neces- sary acknowledgments knowingly given; waivers were (4) re- cording does not contain matters evidence; otherwise admissible into (5) clarity intelligible is of such and en- lightening jury. 258 Ind. at *6 also recording recording. listen to the If it is determined the generally admissible, a determination then can be made as to how best jury por- to insulate the from such tions, any, if may inadmissible.” be judgment of the trial court is reversed with instruc- grant tions to Larimer a new trial.
Garrard, J., concurs; Hoffman, J., opinion. dissents with
Dissenting Opinion J.— I dissent Hoffman, majority from opinion. the Appellant, brief, in setting his after out mo verbatim the tion errors, following: to correct states the
“Thе issues presented, therefore are as follows: proper 1. Whether a prior foundation was laid use tape recording; of a tape recording Whether proper the was rebuttal evi- ; dence 3. Whether recording the tape statement contained was coerced.” points The above argued are all that were or briefed appellant and are the may sole issues which be considered appeal.
During the tape recording State’s case-in-chief offered into compre- evidence. Defendant’s counsel voiced a hensive to the introduction sus- thereof which was by the tained trial court. Under cross-examination de- making fendant denied certain statements which were on recording. tape Upon rebuttal, portion the State offered a tape recording of the purpose into im- peachment. objections Over of defendant’s counsel permitted portion court to hear tape record- ing. proper
Appellant contends that a foundаtion laid was not prior to the introduction evidence, into coerced, on the made were statements and that it was proper rebuttal evidence. 512-513, 504, In Lamar at Supreme defining founda our Court requirements recordings, tion for sound stated: preceded “The should admission of a sound following: disclosing foundation
(1) That it is correct. authentic (2) freely That volun- elicited was tarily made, duress; without kind of (3) warnings required given That all all neces- sary acknowledgments knowingly and waivers were intelligently given; (4) That does not contain matter not ad otherwise *7 ; missible into evidence and (5) clarity intelligible it is That of such to be and enlightening jury.” recordings previously Sutton, Sound in held admissible et al. State 425, upon showing authenticity of and speakers. identification
1) tape theWas authentic and correct? recording’s The preservation manner of must shown be changes, to assure that no additions or deletions have been Speakers supra. made. State, must be identified. Lamar v. present case, In the County testified, Prosecutor under examination, direct as follows: “My Dellinger. name is County Dave I am the Prosecutor night for June question, the 38th Circuit. On the Judicial in recording my tape 30th of this was in taken presence Sgt. Edgar office in the Likens of Indiana Police, Christopher, Deputy Robert in Prosecutor
my office, Doyne Larimer, the defendant in this case Mr. myself. possession and of Since date it has been in the my my physical possession in up. office It has not locked * * changed any way. been altered or Edgar Detective Likens testified that he to had listened tape entirety, therefrom, in its his notes reviewed made pertinent portion listened to the once, more than ascer- tape tained that the tape therefore, unaltered. The was, sufficiently authenticated.
2) freely Was statement voluntarily given? Sergeant he Detective Robert E. Fox testified when following: served the warrant on defendant he read him any you under- you questions, “Before must we ask your rights. stand right “You have the to remain silent.
“Anything you say against you can be used Court. right lawyer “You have before to talk to a for advice you during any questions yоu we ask to have him with questioning. you lawyer, appointed “If cannot afford a one will be you any questioning you before if wish. you present, “If lawyer decide to answer now without a you right any stop answering will still have the time. to at right answering You stop any also have the to time until you lawyer.” talk to a talking de- prior Detective Likens testified that to rights him he fеndant advised the of his asked defendant any objections recording if he had the conversation. portion into admitted following: discloses the you any questions,
“MR. DELLINGER: If glad have we’ll you You have. answer what any problems with haven’t had tonight? here [us] “THE DEFENDANT: No. *8 Nobody you in
“MR. DELLINGER: mistreated way? me No, people “THE DEFENDANT: I think the treated pretty nice.” 283, (1968), 293, N.E.2d Johnson State Ind. v. 250 at 235 determining 694, 688, proper standards for at announced the voluntary: if a confession is determining process clause of “In whether the due admissibility con- violated, 14th Amendment is Federal is tested the same standard in both
fession prosecutions, that is at- and State whether under all circumstances, vol- tendant confession was free and untary, intellect and ment of freely self-dеtermined, product rational of a will, compulsion a free induce- and without or any sort, or whether the accused’s will was over- he time confessed.” borne at
682
It appears present that the statement on the in the freely given. case was voluntarily and 3) required warnings given necessary Were all all acknowledgments knowingly intelli- and waivers gеntly given? discussing In requirement, Supreme this Court, our Layton (1973), 251, 252, State 261 Ind. N.E.2d at 301 633, 634-635, stated:
tected
medium
maintain
not see in
of
given
knowingly
pellant suggests that
necessary
on the
in
fession and the
through which waiver is
rule.
sistent,
N.E.2d 795.
five criteria for
(1970), 255 Ind.
purportedly
“Appellant’s
a
admission
Appellant
and all
sound-recording
by requiring
instant situation. The
tape-recording
both
that
what
However,
necessary
having
Lamar
the waiver was
into evidence of a
second
establishing
ways
intelligently
tape-recording
does
443,
confession.”
customary
that waiver
265 N.E.2d
since written
v. State
not,
defendant’s
specification
been
as well as in written
that
‘that
acknowledgments
at this
obtained is not delimited
a
case
a foundation for the admission
prеsented
authority
given.’
all
(1972),
waiver of Miranda
Compare:
in fact
itself were not
simply
required
be
portion
rights
pre-trial
of error revolves around
preserved
transcript
[258]
involuntary.
for this
set
will be better
Schmidt v. State
and waivers
precise
confession.
warnings
forth
his
form
totally
jury,
proposition
of the con
argument,
[504],
as one
rights
medium
as
We do
same
it
wеre
pro
con
this
Ap
be
is
is
Furthermore,
pointed
it should be
out
since the
being
impeachment
into evidence for
offered
knowing
intelligent
purposes only, a
may
waiver
necessary. Oregon
714,
1215,
v. Hass 420
U.S.
S.Ct.
570;
(1971),
222,
L.Ed.2d
Harris v. New York
401 U.S.
1;
91 S.Ct.
28 L.E.2d
Johnson
(1972),
v. State
258 Ind.
517; Sankey
284 v. App.
157 Ind.
627,
4) Was all tape? inadmissible matter deleted from the *9 recording aIf is to evidence, be offered as the trial judge typewritten should be furnished with a transcript of recording recording to such listen to and should also inadmissible how to insulate from determine best State, supra. portions. Lamar transcript contained
While no written case judge present record, appears it However, tape. portion pertinent did listen to following jury, played was when the portion included: was you say tell Maxine about did You
“MR. LIKENS: wearing the clothes? DEFENDANT: What? “THE say you tell about did Maxine You
“MR. LIKENS: wearing ? clothes the [women’s] Why I them? wore “THE DEFENDANT: Yes. “MR. LIKENS: Yea, me. seen I her that. She
“THE DEFENDANT: told wearing them Well, him she LIKENS: saw “MR. thought they ought have and he a right why wear- was to know he ing them. Yea, I told them that. “THE DEFENDANT: ago A or that? month “MR. LIKENS: When ago what? or sometime ago. Probably month about a “THE DEFENDANT: recently? “MR. LIKENS: Sometime “THE DEFENDANT: Yea. was, because You told them what Muscatatuch?
“MR. LIKENS: you down happened
[sic] told Yea, them never I ’em. I that’s what told DEFENDANT:
“THE felt like I was a man. I dam I never been a [sic] shouldn’t Yep, what them. that’s I told man. you’ve to- just us told what That’s “MR. DELLINGER: night. Yea. DEFENDANT: “THE think really I is honest DELLINGER: And
“MR. the truth. to God you certainly It is the If DEFENDANT: truth. “THE nigger’s name want dam [sic] *10 give you it, that done I can even you that and can even tell where today.” he’s at judge disregard quickly The jury trial admonished the foregoing testimony. disregard im An admonition to proper testimony alleged presumed to correct error. Martin v. 306 N.E.2d proper A foundation was laid for admission the State especially im- only for when offered peachment. clearly The record demonstrates state- that such ments were not coerced. The statements admissible impeachment purposes after the testified. defendant
The us clearly record before demonstrates as a matter of law court could not find that statements made involuntarily defendant were All facts were made. presented who The made their determination. clearly guilt beyond record demonstrates reasonable doubt. judgment of conviction trial court should be affirmed.
Joe L. Johnson v. State Indiana. April 24,
[No. 2-874A191. Filed 1975.]