Opinion
No. 79A04-1008-CR-474
09-07-2011
SHANE WILLIAM KERVIN, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : BRUCE W. GRAHAM Lafayette, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT:
BRUCE W. GRAHAM
Lafayette, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-0810-FA-00038
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD , Senior Judge
STATEMENT OF THE CASE
Defendant-Appellant Shane Kervin appeals his conviction of dealing in cocaine, a Class A felony. Ind. Code § 35-48-4-1 (2006). We affirm.
ISSUES
Kervin presents two issues for our review, which we restate as:
I. Whether the trial court abused its discretion by admitting, for impeachment purposes, evidence of Kervin's prior conviction of conspiracy to commit
robbery.
II. Whether the trial court abused its discretion by admitting the audio recording of Kervin's drug transaction with an undercover officer.
FACTS AND PROCEDURAL HISTORY
In October 2008, Kervin delivered cocaine to Detective Walters of the Lafayette Police Department in an undercover drug buy. As a result of this occurrence, Kervin was charged with dealing in cocaine, as a Class A felony, and possession of cocaine, as a Class B felony. Ind. Code § 35-48-4-6 (2006). At trial, the audio recording of the drug transaction was admitted into evidence over Kervin's objection and played for the jury. Once the State rested, Kervin testified in his own defense and asserted the defense of entrapment. In order to impeach Kervin, the State questioned him about prior criminal convictions, including a prior conviction of conspiracy to commit robbery.
The jury found Kervin guilty of both charges. At sentencing, the trial court merged the Class B felony into the Class A felony and sentenced Kervin to thirty years with eight years suspended to probation. It is from this conviction that Kervin now appeals.
DISCUSSION AND DECISION
I. IMPEACHABLE OFFENSE
Kervin first contends that the trial court erred when it permitted the State to question him for impeachment purposes about his prior conviction for conspiracy to commit robbery. Kervin argues that, pursuant to Indiana Evidence Rule 609(a), conspiracy to commit robbery is not an impeachable offense.
The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb the decision of the trial court absent a showing of abuse of that discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id.
Indiana Evidence Rule 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.We note that while robbery and attempted robbery are included as impeachable offenses under Evidence Rule 609(a), conspiracy to commit robbery is not. However, we need not decide this matter because Kervin has waived the issue for appellate review.
A defendant must make a timely objection to the allegedly erroneous admission of evidence to preserve the error for appeal. O'Neal v. State, 716 N.E.2d 82, 86 (Ind. Ct. App. 1999), trans. denied. In the present case, at a hearing outside the presence of the jury, Kervin argued that the State should not be allowed to use his prior conviction for conspiracy to commit robbery to impeach his trial testimony pursuant to Evidence Rule 609(a). After considering arguments from both parties, the trial court determined that it would allow the State to use the prior conviction. When the trial resumed with Kervin testifying in his own defense, the State questioned him as to his prior conviction of conspiracy to commit robbery, and Kervin failed to object.
Moreover, waiver notwithstanding, any error that may have occurred amounts to harmless error in this case. An error is harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties. Newman v. State, 719 N.E.2d 832, 837 (Ind. Ct. App. 1999), trans. denied. Not only did the State use Kervin's prior conviction of conspiracy to commit robbery to impeach him, but also the State used his prior conviction of confinement. Confinement is an impeachable offense listed in Evidence Rule 609(a)(1). Thus, the fact that the trial court allowed the State to question Kervin regarding an offense not listed in Evidence Rule 609(a) is harmless error, if it is error at all.
II. ADMISSION OF EVIDENCE
Kervin challenges the admission into evidence of State's Exhibit 2, which is an audio recording of the undercover drug buy. Kervin asserts that Exhibit 2 should not have been admitted into evidence because it is not of sufficient clarity to be intelligible and enlightening to the jury.
Trial courts have broad discretion in deciding whether to admit a sound recording into evidence, and, on appeal, we will not reverse that decision unless it represents a manifest abuse of discretion that denied the defendant a fair trial. Hall v. State, 897 N.E.2d 979, 981 (Ind. Ct. App. 2008). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. The foundational requirements for admission of a taped recording made in a non-custodial setting are: (1) the recording is authentic and correct, (2) the recording does not contain evidence otherwise inadmissible, and (3) the recording is of such clarity as to be intelligible and enlightening to the jury. Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000). It is within the trial court's broad discretion to determine whether these criteria have been met. Id.
Here, Kervin challenges admission of the recording based upon the third factor. Prior to trial, the court listened to the recording and determined that it "is audible" and that the court could "understand things from the tape which are being said." Tr. p. 184. After listening to the recording, we conclude that the trial court did not abuse its discretion in admitting the recording into evidence. Although brief portions of the recording are inaudible due to static, interference, and background noise, we disagree with Kervin's contention that the audio recording is "not of such clarity so as to be intelligible and enlightening to the jury." Appellant's Br. p. 12. The fact that some portions of the tapes were inaudible does not necessarily mean that there existed an absence of clarity such that the conversations were unintelligible. It appears clear from the recording that Detective Walters and Kervin were involved in a drug transaction. Further, we are mindful that the standard of quality expected of a recording in an interrogation room, for example, cannot be used to judge a recording of a person wearing a wire transmitter. Kidd v. State, 738 N.E.2d 1039, 1042 (Ind. 2000). Moreover, Kervin has not shown that the inaudible portions of the recording contained any comments that were contradictory to the drug-sale nature of the conversation. See McManus v. State, 433 N.E.2d 775, 777 (Ind. 1982) (finding there was sufficient clarity for recordings to be admitted into evidence where some portions of audio recordings were inaudible and there was no showing that inaudible portions contained any crucial remarks which would contradict or change the nature of the conversations).
Furthermore, Exhibit 2 is the recording of the October 2008 drug buy, the details of which Detective Walters testified to at trial. Detective Walters' testimony consisted of a detailed recitation of how he contacted Kervin, where and when they met, their drive to an apartment complex where Kervin obtained cocaine, their conversation during the drive, and the amount of money Detective Walters gave Kervin to purchase cocaine. Therefore, even if we were to determine that the trial court erred by admitting Exhibit 2, the error would be harmless because the evidence was cumulative. Purvis v. State, 829 N.E.2d 572, 585 (Ind. Ct. App. 2005) (stating that improper admission of evidence is harmless error when erroneously admitted evidence is merely cumulative of other evidence), trans. denied.
CONCLUSION
Based upon the foregoing discussion and authorities, we conclude that Kervin waived appellate review of the trial court's admission, for impeachment purposes, of evidence of his prior conviction of conspiracy to commit robbery. In addition, the trial court did not err by admitting Exhibit 2, the audio recording of the drug buy in this case.
Affirmed. NAJAM, J., and BARNES, J., concur.