Duncanson v. State

• Decision Date: 17 July 1979
• Docket Number: No. 3-377A80,3-377A80
• Parties: Paul T. DUNCANSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1157

391 N.E.2d 1157

181 Ind.App. 370

Paul T. DUNCANSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-377A80.

Court of Appeals of Indiana, Third District.

July 17, 1979.

Saul I. Ruman, Hammond, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

Paul T. Duncanson was found guilty by a jury of two counts of conspiracy to commit a felony, two counts of theft of property of a value over $100, and second degree burglary.

His convictions resulted from police investigation of information given them by Philip Carson Noojin. Noojin told the police that he had stolen three boats and sold them to Duncanson. He claimed he had told Duncanson the first boat had been stolen and that Duncanson had indicated he would be interested in a second boat, which Noojin subsequently provided. After he purchased the second boat from Noojin, Duncanson located a third boat which he showed Noojin. Noojin stole this boat and sold it to Duncanson.

After Noojin disclosed these alleged events to the police, he was asked if he would be willing to engage Duncanson in a conversation while wearing a concealed microphone and tape recorder. Noojin agreed and as a result of the incriminating statements on the tape, charges were brought against Duncanson.

Prior to trial, Duncanson sought to depose Noojin. However, Noojin refused to answer approximately 20 questions, largely on the ground that an answer would incriminate him. He was subsequently granted immunity from prosecution for the thefts of the boats and for an unrelated burglary. Nonetheless, in a second deposition, Noojin again refused to answer a substantial number of questions. Similarly, at trial Noojin refused to answer some questions concerning criminal activity other than the crimes for which he had been granted immunity. ¹

Duncanson's first ground for appeal is that the trial court should have stricken Noojin's direct testimony because of his refusal to answer all of the defense's questions on cross-examination. He argues that Noojin's refusal to answer questions propounded on cross-examination denied him his Sixth Amendment right of confrontation. Duncanson asserts that he was prevented from showing that Noojin was involved in numerous criminal transactions and that as a result, his testimony as the state's chief witness was biased, having been given in an attempt to curry favor with the state.

Revelation of bias on the part of a witness is a legitimate and often essential goal of cross-examination,

". . . for if believed it colors every bit of testimony given by the witness whose motives are bared." United States v. Blackwood (2nd Cir. 1972), 456 F.2d 526, 530.

In Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, the Supreme Court held that a refusal to permit inquiry into matters which might show bias may amount to a denial of a defendant's right of confrontation. Our own Supreme Court has held that:

"Evidence of bias is not limited to the scope of direct examination, nor is such evidence collateral." Clark v. State (1976), 264 Ind. 524, 348 N.E.2d 27, 32.

Although revelation of bias may be central to a defendant's right of confrontation, that right may not be used to compel testimony which is privileged under the Fifth Amendment. Cross-examination is subject to limitations, not the least of which is the privilege against self-incrimination. Federal courts considering the question assure the preservation of the rights of both defendant and witness by striking the direct testimony of the witness in those circumstances where a proper invocation of the privilege has resulted in depriving the defendant of the ". . . ability to test the truth of the witness' direct testimony" which causes a substantial degree of prejudice. Fountain v. United States (5th Cir. 1967), 384 F.2d 624, 628. However,

"(a) defendant's rights do not bar the admission of the witness's testimony against him where the questions concern subject matter which is either collateral or cumulative and where the cross-examination is directed at the witness's general credibility rather than toward matters relating to the specific events of the crime charged." United States v. LaRiche (6th Cir. 1977), 549 F.2d 1088, 1097, Cert. den., 430 U.S. 987, 97 S.Ct. 1687, 52 L.Ed.2d 383 (1977).

While the court in Borosh v. State (1975), Ind.App., 336 N.E.2d 409, 412-13 was not concerned with the invocation of the privilege against self-incrimination, we find the following language to be in harmony with that used in LaRiche :

"A number of decisions have held such right to cross-examination to be infringed upon where a defendant's counsel is wholly precluded from bringing before the jury on cross-examination relevant and substantial evidence bearing upon the credibility of a crucial witness against the accused. See Davis v. Alaska, supra ; U. S. v. Duhart (6th Cir., 1975), 511 F.2d 7; Snyder v. Coiner (4th Cir., 1975), 510 F.2d 224; U. S. v. Harris (9th Cir., 1974), 501 F.2d 1. Thus, it is clear that only a total denial of access to such an area of cross- examination presents a constitutional issue. Any lesser curtailment of cross-examination by the trial court is viewed as a regulation of the scope of such examination, and such curtailment is reviewable only for an abuse of discretion. Brooks v. State (1973), 259 Ind. 678, 291 N.E.2d 559."

We cannot agree that the denial of cross-examination into the areas here attained constitutional magnitude and required the striking of Noojin's direct testimony. Although Noojin refused to answer questions about certain other crimes, he did testify that he was then in jail charged with armed robbery and that after he had testified against Duncanson before the grand jury he had been charged with assaulting a police officer, disorderly conduct and homicide. He testified about the grant of immunity, his motive for confessing to the thefts, and he described police efforts to find employment for him after he had confessed.

While testimony concerning other crimes might have heightened the inference of bias, it would have been merely cumulative to the substantial evidence which had already been admitted; its exclusion was not an abuse of discretion and did not require the direct testimony to be stricken.

Duncanson next argues that both Noojin's testimony concerning his consent to carry a concealed tape recorder and the recording should have been excluded because the limitations placed on cross-examination prevented Duncanson from showing that Noojin's consent was not truly voluntary. He argues that in the absence of the consent of either of the parties to a conversation that it be recorded, a Fourth Amendment violation occurs. See Matter of Wood (1976), 265 Ind. 616, 358 N.E.2d 128, 132. Duncanson contends that even if evidence of bias is collateral to the issue of guilt and, therefore, may be excluded as discussed above, it is not collateral insofar as Noojin's consent is concerned. In addition, he argues that the scope of Noojin's involvement in criminal activities precluded the possibility of a truly voluntary consent on his part. Duncanson maintains that Noojin had no choice but to cooperate with the police.

Even if we were to agree that the limitation on cross-examination prevented Duncanson from showing that Noojin's consent to carry the recorder was founded in a belief that his own best interest would be served by cooperation, that belief would not affect the voluntariness of his consent. The hope of receiving a lesser sentence does not vitiate the voluntariness of a guilty plea (North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, nor does a similar hope affect consent to record a conversation. United States v. Silva (1st Cir. 1971), 449 F.2d 145. The language of United States v. Bastone (7th Cir. 1975), 526 F.2d 971, 977, Cert. den.425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976), disposes of Duncanson's argument:

"We fully realize that (the witness's) . . . cooperation stemmed from the fact that he believed he would receive a better deal from the government. Yet that fact alone does not vitiate his consent or indicate that his actions were the product of government control. A finding of involuntariness does not result simply because a person has been indicted or is the subject of a government investigation."

Nor does a finding of involuntariness necessarily result from confession of crimes. Noojin signed a consent form before he recorded the conversation and nothing in the record shows that his consent was the product of duress or coercion calculated to overbear his will. See U. S. v. Silva, supra. His testimony and the recording were, therefore, not vulnerable to challenge on this ground.

Duncanson presents other grounds for exclusion of the recording and of a transcript made of the recording. He urges that the recording does not meet the standards set forth in LaMar v. State (1972), 258 Ind. 504, 282 N.E.2d 795, that no foundation was established for admission of the transcript, that the transcript was hearsay, was not the best evidence of the conversation, and that the transcript in combination with the recording placed undue emphasis upon a single piece of evidence.

The trial court held a separate hearing on Duncanson's motion to suppress the tape. Thomas Yackish, an associate professor of electrical engineering at Purdue University, testified that he had been asked by the state to analyze the recording after defense counsel, who had originally retained him, decided to forego an analysis. Yackish testified that he was satisfied, after completing several tests on the tape, that the tape had not been altered or tampered with. Noojin identified the voices on the tape as his own and Duncanson's. He testified that the transcript made from the tape was a "verbatum (sic) and accurate...