Michael GRAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 49A02-1205-CR-352
Court of Appeals of Indiana.
Feb. 11, 2013.
984 N.E.2d 434
Despite this difference, I still agree with the majority that the Certification is non-testimonial and therefore not subject to confrontation under Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Following the first two rationales set forth in Ramirez, the certificate of inspection was “not prepared at a judicial proceeding or during police interrogation,” and was not a “sworn affidavit[] and do[es] not contain formalized testimonial materials.” Ramirez, 928 N.E.2d at 217-18. Instead, the certificate was prepared at the direction of the Indiana University School of Medicine Department of Pharmacology and Toxicology and in accordance with its approved procedures. The certificate also was not a sworn affidavit and only contained the results of a machine-calibration test. Unlike forensic analysis of an unknown substance, like that at issue in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the machine-calibration test in question in this case required no human interpretation or analysis to either run the test or obtain results, making it void of any testimonial material on which a witness would need to be cross-examined.
I therefore agree with the majority that the Certification is non-testimonial and the trial court did not violate Jones‘s confrontation rights by admitting it into evidence.
Deborah Markisohn, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
VAIDIK, Judge.
Michael Gray was convicted of Class D felony possession of cocaine and received a four-year sentence. On appeal, Gray contends that the trial court erred in refusing to allow him to play portions of an audio recording of a police officer‘s deposition for impeachment purposes. We find that the trial court did err in refusing to allow Gray to play a part of the audio recording that was inconsistent with the officer‘s testimony on direct examination, but this error was harmless. We affirm.
Facts and Procedural History
One afternoon in October 2011, Indianapolis Metropolitan Police Department Officer Christopher Morgan saw a gray Ford Crown Victoria speeding near the intersection of Terrance Avenue and Talbott Street. Officer Morgan initiated a traffic stop of the car, which had been traveling ten to twenty miles per-hour over the speed limit. When Officer Morgan approached the car, he observed a woman in the driver‘s seat and a male, Gray, in the passenger seat. Officer Morgan asked the woman for her driver‘s license. He also asked Gray for his identification. Officer Morgan noticed that Gray appeared very nervous and was making furtive gestures. Because Officer Morgan believed that Gray might have a weapon, he called for backup. Another officer arrived at the scene a few minutes later.
The State charged Gray with Class D felony possession of cocaine and a habitual substance-offender enhancement. Gray‘s jury trial began in March 2012. At trial, Officer Morgan testified about the traffic stop and his discovery of the cocaine. On direct examination, Officer Morgan testified that when asked about the cocaine at the scene, Gray first said he did not know what was going on, but he later said “no [the cocaine] is not hers,” referring to the driver. Tr. p. 34. On cross-examination, defense counsel disputed Officer Morgan‘s testimony, arguing that Gray had never said that the cocaine did not belong to the driver, but had instead made a very different statement—that he did not want to blame the driver for the cocaine. The following exchange occurred:
Q Now Officer Morgan, while at the scene Michael Gray did in fact tell you that [the cocaine] wasn‘t his, correct?
A I don‘t recall him using those exact words.
Q Again, did Michael Gray tell you that he didn‘t want to blame the driver for the bag?
A He did make the statement (“]it wasn‘t hers[,“] so I don‘t recall him making another statement selling her bad [sic] but I do recall him saying it wasn‘t the driver‘s.
Q And that was—in those statements were [sic] because he was ignorant about the entire situation, is that correct?
A That‘s what he stated.
Id. at 38-39. Defense counsel then asked Officer Morgan if he remembered giving a deposition one month earlier, and the officer said he did. Id. Counsel then began playing an audio recording of Officer Morgan‘s deposition. The State immediately objected, and the trial court told defense counsel to stop playing the tape. The State argued that the tape was inadmissible, and the trial court agreed, saying: “[Y]ou can‘t just start playing the recording because I don‘t know what‘s on there. The State may know but I don‘t know what‘s on there. I don‘t know.” Id. at 40. Defense counsel offered to let the trial court listen to the tape, telling the court he only intended to play the portion of the deposition in which Officer Morgan relayed Gray‘s statements about the cocaine. Id. at 40-41. But the trial court declined, saying:
I would have to listen to the whole thing. You can ask [Officer Morgan] regarding if he said something specifically on that date. You haven‘t asked him that. You just said, “you recall giving a statement at my office,” and gave the date. You can say, “did you say such and such on such and such a date” . . . but we don‘t know how he‘s going to respond. You haven‘t—you[‘ve] got to ask him did he say such and such.
Q So [at your deposition] . . . I asked you about what you did after you found the cocaine.
A Correct.
Q And you stated that you talked with Michael Gray, correct?
A I believe so. I mean I don‘t have a transcript of the actual depo[sition] so if you‘re saying so, yes, I believe so.
Q And Michael Gray stated that [the cocaine] was not his?
A Again, the statement he made was that he didn‘t understand what was going on.
Q And [at your deposition] when I asked you about that you stated that Michael Gray also stated, “and he didn‘t want to blame her.”
A I don‘t recall. If you say so then I‘d have to take your word for it. He may have.
Id. at 42.
The jury found Gray guilty of Class D felony possession of cocaine. He pled guilty to being a habitual substance-abuse offender and received a four-year sentence. He now appeals.
Discussion and Decision
On appeal, Gray argues that the trial court erred in refusing to allow him to play a portion of the audio recording of Officer Morgan‘s deposition for impeachment purposes. The issue before us is a narrow one. We do not consider whether the prior inconsistent statement could have been introduced substantively through extrinsic evidence; we consider only Gray‘s ability to use a limited portion of the audio tape to call Officer Morgan‘s attention to his inconsistent testimony.1
We review a trial court‘s decision regarding the admission of evidence for an abuse of discretion. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.Ct.App.2009) (citations omitted). An abuse of discretion occurs when the trial court‘s ruling is clearly against the logic, facts, and circumstances presented. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court‘s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied. Even when a trial court errs in excluding evidence, we will not find reversible error where that error is harmless; that is, where the error did not affect the substantial rights of a party.
Indiana Evidence Rule 613 allows the use of a prior inconsistent statement to impeach a witness, and when used in this manner, the statement is not hearsay. Jackson v. State, 925 N.E.2d 369, 375 (Ind.2010) (citing Martin v. State, 736 N.E.2d 1213, 1217 (Ind.2000)). Our Supreme Court has stated that “[o]rdinarily, prior inconsistent statements are used to impeach, not as substantive evidence of the matter reported.” Young v. State, 746 N.E.2d 920, 926 (Ind.2001).
On direct examination, Officer Morgan testified that Gray said the cocaine did not belong to the driver. See Tr. p. 34. But at his deposition, Officer Morgan testified that Gray said “he did not claim [the co-
Because there was an inconsistency in the officer‘s testimony, Gray contends that he should have been allowed to impeach Officer Morgan with his deposition testimony. We agree. Gray should have been permitted to play the specific portion of the tape that contained the inconsistent deposition testimony and give the officer an opportunity to explain the inconsistency.
Although we conclude that Gray was entitled to use a specific portion of the tape, he went about doing so in the wrong way. Gray played the tape without any notice to the court. The court was well within its discretion in refusing to allow Gray to play the tape when the court had no knowledge of its content. However, Gray explained that he intended to use only a specific portion of the tape and made it available to the court. The court should have examined the portion of the tape Gray wished to use and determined whether it was inconsistent with Officer Morgan‘s testimony. Given that the portions Gray wished to play were in fact inconsistent with the officer‘s testimony, it was error to prevent Gray from playing the relevant portions of the tape.
We find the error harmless, however. Officer Morgan ultimately admitted that his testimony may have been inconsistent, making Gray‘s impeachment attempt complete—though jurors likely found this admission less persuasive than an audio recording of the officer‘s inconsistent statement. And the evidence adduced at trial strongly points to Gray‘s guilt:
Affirmed.
BAILEY, J., and BROWN, J., concur.