Flynn v. State
| Citation | 702 N.E.2d 741 |
| Decision Date | 04 December 1998 |
| Docket Number | No. 03A01-9707-CR-238,03A01-9707-CR-238 |
| Parties | Doug FLYNN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Doug Flynn appeals his convictions for two counts of burglary, both class B felonies, and theft, a class D felony. Flynn raises five issues which we expand and restate as:
(1) whether Flynn should have been permitted to review all evidence before trial, including a videotape of the arrest scene;
(2) whether the trial court erred in admitting Kim Collins' out-of-court statement;
(3) whether Collins' taped statement and its transcript were improperly received as exhibits;
(4) whether the trial court erred in allowing Collins to testify;
(5) whether the trial court erred in admitting evidence of prior bad acts;
(6) whether the assigned public defender should have continued as counsel to Flynn;
(7) whether the trial court erred in ordering Flynn's sentence for the theft conviction to run consecutive to the sentences for the burglary convictions.
We affirm.
The facts most favorable to the judgment follow. Teresa Toppe woke her husband, John Toppe, because she heard someone in their home. Thereafter, they both heard heavy footsteps and the door to the garage slam shut. John ran into the garage and, although he observed no one, noticed the garage door had been opened. He then heard a car start and ran to the street where he observed a dark-haired, white male in a red car that looked like a Taurus. The man drove the car away without turning on his lights, and John observed it leave his subdivision. John then returned to his home where Teresa had telephoned the police. He then provided the dispatcher with a description of the man and car.
Officers Chris Couch and Roger Fields each responded to the dispatcher's broadcast of a possible burglary. As they drove their vehicles toward the Toppe home, they observed a car that matched the description heading away from the subdivision. Consequently, they turned around and chased the car. After some time, the car stopped in the parking lot of a Ramada Inn. The driver exited the car and threw several items away from the car. At this time, Officer Couch observed a female passenger exit the car. He then ordered both the male driver and the female passenger to "freeze" and handcuffed the driver. The police later identified the driver as Flynn and the passenger as Collins. Also, Toppe later identified the vehicle Flynn had been driving as the one he observed in front of his home.
The items Flynn threw away from the car were later identified as property that had been stolen from houses near the Toppe home. Specifically, a purse and wallet were found that belonged to Mitsuro and Tetsuko Ueno. Also, items of mail were found that belonged to John and Tomasa Edwards. The officers arrested Flynn, and the State charged him with two counts of burglary and one count of theft. A jury found him guilty as charged. Additional facts relevant to this appeal will be provided as necessary.
The first issue is whether Flynn should have been permitted to review all evidence before trial, including a videotape of the arrest scene. The extent of Flynn's argument consists of the statement that "[his] inability to view all of the evidence which would be used against him at trial is also an error which prevented him from adequately preparing his own defense and warrants reversal." Appellant's brief, p. 40. Flynn does not present a cogent argument or cite to authority. Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record. Ind. Appellate Rule 8.3(A)(7); Corley v. State, 663 N.E.2d 175, 176 (Ind.Ct.App.1996); Nordstrom v. State, 627 N.E.2d 1380, 1385 (Ind.Ct.App.1994), trans. denied. Therefore, Flynn has waived this argument.
The second issue is whether the trial court erred in admitting Kim Collins' out-of-court statement to Officer Robert Jarrard regarding the events in question. Flynn first argues that the statement should not be admitted as a past recollection recorded under Ind. Evidence Rule 803(5). Under this exception, a witness must have personal knowledge of the event which she contemporaneously recorded or adopted, if recorded by another, while she retained a clear memory of it. Wininger v. State, 526 N.E.2d 1216, 1219 (Ind.Ct.App.1988), trans. denied. Also, the party offering the recording must establish that the witness has no present recollection of the events to be proven in order for the writing to be admitted. Id. Under this doctrine, the witness' lack of memory serves as the vehicle for the admission of the written memorialization of the knowledge she once retained. Id.
Here, Officers Couch and Fields both testified that they spoke to Collins at the scene. After Couch questioned her story, Collins informed him that she had been sleeping in the car when Flynn woke her by jumping into the car with the stolen items. Officer Jarrard testified that Collins provided him with a full and complete recorded statement of what occurred that night. Thus, the State demonstrated that, at the time of the incident, Collins did have personal knowledge of the events that occurred that night. In addition, the State demonstrated Collins' lack of recollection through her testimony at trial. Thus, the trial court properly admitted the statement under Evid. R. 803(5).
Despite this, Flynn contends the admission of the statement violates his constitutional right to confront witnesses. Our supreme court has recognized that "those accused of crime are guaranteed the rights of effective confrontation and cross-examination by our constitutions." Holmes v. State, 671 N.E.2d 841, 859 (Ind.1996), reh'g denied, cert. denied. Consequently, "[e]xceptions by which hearsay evidence may be lawfully admitted into evidence must be separately tested to determine whether their application is violative of those rights." Id. (citing Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)). For a statement to overcome the rights to confrontation and cross-examination, the State must prove that a hearsay statement bears an adequate indicia of reliability. Holmes, 671 N.E.2d at 859. This reliability may be inferred if a statement falls within a firmly rooted hearsay exception. Id. If the exception fails to qualify as firmly rooted, "the State must show 'particularized guarantees of trustworthiness' which include 'only the circumstances surrounding the making of the statement and that render the [source of the hearsay statement] particularly worthy of belief.' " Id. (quoting Wright, 497 U.S. at 819, 110 S.Ct. at 3148).
Here, we have determined that Collins' prior recorded statement fell with a firmly rooted hearsay exception under Evid. R. 803(5) as a prior recorded statement. In addition, the testimony of Officers Couch, Field, and Jarrard render the taped statement from Collins worthy of belief. Also, Flynn cross-examined Collins at her deposition, at a pre-trial hearing, and at trial. Thus, Flynn's rights to confrontation and cross-examination were not violated. See Holmes, 671 N.E.2d at 859. Therefore, the trial court did not err in admitting Collins' out-of-court statement. See Wininger, 526 N.E.2d at 1219.
The third issue is whether the audio tape containing Collins' taped statement and its transcript were improperly received as exhibits. Flynn contends that State's Exhibits 17 and 19 were received as exhibits in contravention of Evid. R. 803(5) which provides, in relevant part, that if a prior recorded recollection is admitted, "the memorandum or record [containing the recollection] may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." Both the tape and transcript were marked as exhibits. Thus, they clearly violate Evid. R. 803(5). Therefore, the trial court erred in receiving the tape and transcript as exhibits.
However, our analysis does not end here. Indiana Evid. R. 103(a) provides in relevant part:
Under this rule, the erroneous admission of the evidence is not reversible unless it prejudices the complaining party. Columbian Rope Co. v. Todd, 631 N.E.2d 941, 945 (Ind.Ct.App.1994), trans. dismissed. Thus, Evid. R. 103(a) invokes the "harmless error" analysis.
Although Flynn objected to the admission of the prior recorded statement, he did not specifically object to the receipt of the tape and transcript as exhibits under Evid. R. 803(5). While the tape and transcript should not have been received as exhibits, trial counsel's failure to object waives such error unless the receipt of the exhibits constitutes fundamental error. 1 See Davis v. State, 598 N.E.2d 1041, 1048 (Ind.1992), reh'g denied, cert. denied, Davis v. Indiana, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 340 (1993). A finding of fundamental error results only when the error is a substantial blatant violation of basic principles rendering the trial unfair. Id. This determination includes consideration of the potential for resulting harm. Id. Similarly, an evaluation for harmless error involves considering the likelihood that the questioned evidence may have contributed to the conviction. Id.
A redacted tape of the statement was played for the jury. As Evid. R. 803(5) provides that a memorandum or record of...
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