Opinion
Court of Appeals Case No. 20A-CR-1853
05-28-2021
Jonathon W. BREWSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
Attorney for Appellant: Joseph K. Etling, Smock & Etling, Terre Haute, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Joseph K. Etling, Smock & Etling, Terre Haute, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[1] The State arrested Jonathon W. Brewster and charged him with multiple crimes, including three counts of level 1 felony child molesting. Brewster filed a motion to exclude recordings of his jailhouse phone conversations with his adult daughter, Hannah West, which the trial court granted in part. In this interlocutory appeal, Brewster argues that the trial court should have either redacted the recordings further or excluded them altogether. We affirm.
Facts and Procedural History
[2] On June 28, 2019, Brewster was arrested and charged with three counts of level 1 felony child molesting against E.M., two counts of level 5 felony sexual misconduct with a minor and one count of level 6 felony criminal confinement against K.A., and one count of level 6 felony domestic battery resulting in moderate bodily injury against the alleged victims’ mother, who is Brewster's girlfriend. On June 29 and July 1, Brewster called West from the Vigo County Jail. Both calls were recorded.
[3] On June 18, 2020, Brewster filed a motion to exclude those recordings, asserting that they "are inadmissible under Indiana Rules of Evidence 404, and Rule 403, as well as Article 1, Section 23 of the Indiana Constitution and the 5th, 6th, and 14th Amendments of the United States Constitution." Appellant's App. Vol. 2 at 110. On June 19, the State filed a response asserting that "[b]oth parties to the conversations were aware that they were being recorded" and that "[t]here is no legal basis to exclude these conversations from evidence." Id. at 111. On July 5, after a hearing, the trial court issued an order granting Brewster's motion in part, ruling that "[t]he recordings will be edited to remove portions of statements indicating truthfulness of the victims’ allegations." Id. at 122. The State redacted the recordings and provided them to Brewster's counsel.
Indiana Evidence Rule 704(b) provides, "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." Brewster did not cite this rule in his motion to exclude, but he may have done so during the hearing on the motion, which was not transcribed for this appeal. Brewster did raise the issue of impermissible vouching in a motion in limine filed on July 2.
[4] On July 8, Brewster filed a motion to exclude the altered recordings, which reads in relevant part as follows:
8. That the Defendant contends that the Court has concluded in its Order of July 5, 2020 that the State's purported audio tape evidence contained inadmissible evidentiary information and as such should be excluded from introduction during the trial in this cause.
9. That the Defendant contends that the altered audio recordings of jail telephone conversations have left remaining the Defendant's immediate responses to the inadmissible evidentiary information.
10. That the Defendant contends that the current evidence tendered by the State of Indiana is incomplete and takes the Defendant's responses out of their proper context by the introduction of only selective parts of the pertinent conversations.
11. That in the June 29, 2019, jail telephone call the State removed the following portions of the recorded telephone conversation in bold starting at 7 minutes and 33 seconds:
[West]: I don't see the kids lying about it [ ]
Defendant: You don't see what
[West]: I don't see the kids lying about it
Defendant: Oh no there's not
[West]: So what does that mean?
Defendant: Did you say you don't see what now, I could what?
[West]: I said, I don't see the kids lying
Defendant: Oh, there's no way I did that. No way in the world. That's not who I am. Never has been, never will be [....]
12. That in the July 1st, 2019, jail telephone call, the State has removed, from the three versions of the call given to the Defendant's counsel, the following portion of the recorded telephone conversation in bold starting at 9 minutes and 45 seconds:
[West]: I don't, I don't see them lying.
Defendant: Huh?
[West]: I just don't see them lying.
Defendant: I did some of it, is that what you want to hear?
13. That the Defendant contends that in order to effectuate the Court's Order to "remove portions of statements indicating truthfulness of the victims’ allegations", the State should also be directed to remove any and all of the Defendant's responses not bolded in the two paragraphs above.
The transcript of the conversation provided to the trial court and included in the record before us renders this line as, "And I don't, I don't, I don't see anyone lying." Ex. Vol. 3 at 13.
Id. at 124-26.
[5] On July 20, after a hearing, the trial court issued an order in which it redacted West's foregoing bold-faced statements, as well as several other statements by West and Brewster that are not at issue here, and otherwise denied Brewster's motion subject to those clarifications. This interlocutory appeal ensued.
Discussion and Decision
[6] Brewster argues that the trial court should have either redacted the jailhouse phone recordings further to exclude his responses to West's redacted statements or excluded the recordings altogether. "The trial court has broad discretion to rule on the admissibility of evidence." Peele v. State , 130 N.E.3d 1195, 1198 (Ind. Ct. App. 2019). "Generally, evidentiary rulings are reviewed for an abuse of discretion and reversed when admission is clearly against the logic and effect of the facts and circumstances." Id. When a challenge to a trial court's evidentiary ruling turns on an alleged constitutional violation, the issue raises a question of law, and our review is de novo. Shorter v. State , 151 N.E.3d 296, 301 (Ind. Ct. App. 2020), trans. denied. "We will affirm the trial court's evidentiary ruling on any basis supported by the record." Carr v. State , 106 N.E.3d 546, 554 (Ind. Ct. App. 2018), trans. denied.
[7] We first address Brewster's assertion that the trial court's redaction of West's vouching statements will compel him to testify at trial to explain his responses in violation of his Fifth Amendment rights. "The Fifth Amendment to the U.S. Constitution, made applicable to the states through the Fourteenth Amendment, provides that no person shall be compelled in any criminal case to be a witness against himself." Davis-Martin v. State , 116 N.E.3d 1178, 1193 (Ind. Ct. App. 2019), trans. denied. "The Fifth Amendment prohibits only compelled testimony that is incriminating." Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cnty. , 542 U.S. 177, 189 (2004).
Brewster opines that "[t]he trial court rightfully redacted West's vouching remarks[,]" Appellant's Br. at 12, and then he makes the circular observation that her remarks cannot be admitted to give context to his responses pursuant to Evidence Rule 106 because they are inadmissible. Brewster frames this observation as an argument, but his position is not subject to debate.
[8] Brewster cites no relevant authority for the proposition that a defendant's desire to provide an innocent explanation for an apparently incriminating statement amounts to government compulsion to provide incriminating testimony in violation of the Fifth Amendment. Cf. Williams v. Florida , 399 U.S. 78, 83-84 (1970) ("The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. ") (emphasis added). Moreover, Brewster placed himself in this dilemma by choosing to discuss his predicament with his daughter during a jailhouse phone call that he knew was being recorded. Brewster must live with the consequences of that decision, including West's statements endorsing the alleged victims’ credibility (which the trial court properly redacted at his request) and his imprudent incriminating response. Brewster cannot have his cake and eat it too, although at trial he may ask the court to instruct the jurors that West's statements were redacted pursuant to the rules of evidence and that they may not speculate about them or the reason for their redaction.
Williams was cited for this proposition in the primary case that Brewster relies on, Houchin v. State , 581 N.E.2d 1228 (Ind. 1991), which we find unpersuasive for this very reason.
If Brewster elects to request and the trial court opts to exercise its considerable discretion to give such an instruction, we presume that the jury will follow it. See Thrash v. State , 88 N.E.3d 198, 205 (Ind. Ct. App. 2017) ("Our court presumes that a jury follows the instructions that it is given.").
[9] Brewster also argues that the recordings should be excluded pursuant to Indiana Evidence Rule 403 because their probative value "is substantially outweighed by the danger of unfair prejudice and misleading the jury." Appellant's Br. at 16; see Ind. Evidence Rule 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence."). Brewster claims that "[t]he altered audio tape puts [him] at extreme risk of unfair prejudice because it misrepresents [his] response [‘I did some of it, is that what you want to hear?’] as a confession." Appellant's Br. at 16. Whether Brewster's response is a confession is a quintessential question of fact for the jury to decide, regardless of any redactions; Brewster (if he chooses to testify) and/or his counsel can argue that it is not. Brewster further claims that the redactions "unjustly prejudice [him] because [they] emphasize [his] response since it no longer flows in the natural course of the conversation" and "will also mislead the jury as it is evident in the recording that [he] is responding to redacted material. This will allow the jury to engage in speculation as to what was redacted." Id. Our foregoing suggestion to request a limiting instruction would alleviate these concerns. In sum, we cannot conclude that the recordings’ considerable probative value is substantially outweighed by the danger of unfair prejudice and misleading the jury. Accordingly, we find no abuse of discretion and affirm the trial court's ruling.
In a related argument, Brewster asserts that "the altered audio tape is inaudible in several places as it is simply a recorded telephone conversation and it is not exactly clear what is being said. If the State is permitted to introduce the altered audio recording, jurors may assume that unintelligible portions contain information prejudicial to Brewster." Appellant's Br. at 16. We have listened to the recordings and do not believe that the unintelligible portions are so pervasive as to render them inadmissible. At trial, Brewster may request an admonition against speculation.
Elsewhere in the recordings, Brewster admits that his case "doesn't look good" and that he is "screwed." Ex. Vol. 3 at 12, 19.
--------
[10] Affirmed.
Riley, J., and Mathias, J., concur.