Jacks v. State

Decision Date26 September 1979
Docket NumberNo. 777S525,777S525
Citation394 N.E.2d 166,271 Ind. 611
PartiesEdward Dennis JACKS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Nile Stanton, Philip R. Melangton, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Edward Dennis Jacks, Jr., was found guilty of first degree murder by a jury in Elkhart Superior Court on November 11, 1976. He was sentenced to life imprisonment. His motion to correct errors was overruled by the trial court and he brings this appeal. Appellant raises seven issues for our consideration, regarding:

(1) whether the trial court erred in admitting into evidence a tape recording of a telephone conversation between appellant and his mother; (2) whether the trial court erred in admitting into evidence a statement made by Jacks while in custody that he wished to consult with an attorney; (3) whether the trial court erred in refusing defendant's tendered verdict form pertaining to the insanity defense; (4) the sufficiency of the evidence with regard to defendant's sanity at the time of the offense charged; (5) rulings of the trial court concerning testimony during cross-examination of two expert witnesses; (6) whether the trial court erred in giving certain instructions; and (7) whether the closing argument by the prosecuting attorney was improper.

Edward Dennis Jacks, Jr., was a gun dealer who operated his business from his home in Elkhart, Indiana, where he resided with his wife and their two children. In August of 1975, he went to Marietta, Georgia, with his brother, an attorney from Illinois, to negotiate a transaction for the sale of a large number of guns to a foreign county. Jacks expected the sale to net him about $150,000. However, the deal fell through, and on August 27, 1975, appellant Jacks returned north and spent the night at his parents' home in Park Forest, Illinois. Appellant was depressed and upset because the deal had fallen through in Georgia. Early in the morning of August 28, 1975, he returned to his home in Elkhart. He called his wife at her place of employment and was advised by her that she had filed for divorce. She also told him she had obtained an apartment for herself and her children since he would need the home for his business, and that she had obtained a restraining order to prevent him from interfering with her custody of the children. He called his parents in Illinois and related this to them, although the evidence conflicted as to whether he called them more than once.

Witness Pat Munson was the director of the nursery school that appellant's children attended. Munson testified that appellant's wife, Kathleen Jacks, came to the school in the afternoon of August 28, and asked Munson to accompany her to the Jacks home to pick up some clothes and belongings. Mrs. Jacks was fearful of going to the home alone because appellant was upset with her about the divorce. Munson agreed that she would follow Kathleen Jacks in her automobile. When they arrived at the Jacks residence, Munson pulled up behind the Jacks automobile near the garage. Kathleen Jacks got out of her car and started toward the front door with her two children at her side. Pat Munson got out of her car and started toward the door, some twenty feet behind Mrs. Jacks. At this point, the front door opened and appellant stepped out of the house holding a rifle. Mrs. Jacks turned and started to run. Munson testified that appellant then began shooting at his wife. Munson said that the weapon was a rapid fire rifle, and that many shots were fired. Mrs. Jacks was struck by two bullets, and was pronounced dead at the Elkhart Hospital a short time later.

There was evidence that appellant Jacks had called acquaintances prior to this incident and told them he was going to kill his wife. Police officers who came to the scene testified that Jacks made statements to them of: "the damned gun jammed," and "she's been shot, get her out of here and take her to the hospital you guys don't know what you're doing," and "Do you want to get shot, too?" to an ambulance attendant. Jacks' defense was that he was insane at the time this act was committed.

I.

Helen Jacks, mother of appellant, was called by the defense as a witness and told the jury, generally, about the activities of August 27, when appellant stayed at her home, and about her conversations with him on the telephone after he returned home on August 28. There was some conflict as to whether she had talked to him more than once on the telephone on the 28th. On cross-examination, the prosecuting attorney asked Helen Jacks if it was not a fact that her son Edward Dennis told her on the telephone that he was going to kill his wife. She denied that such conversation took place. The prosecutor then asked her if she had had a telephone conversation with appellant on the evening of August 28, after he had been arrested. She stated that she did have such a conversation. She was then asked about statements made by appellant and her responses to those statements during the conversation. She stated that she did not recall some of the conversation and denied that other statements had been made. It became evident that the police had taped this telephone conversation and that the prosecution had the tape and a transcript of it in court with them.

The defendant also took the stand in his own defense. On cross-examination, he was asked about this conversation with his mother. He stated that he thought he had talked to her, but did not remember anything about the conversation. He testified that he was unable to remember any of the particular statements made by either of them on the phone.

Appellant testified that he had no memory of any of the events after he saw his wife drive into the driveway. He stated that he had a vague memory of seeing her lying on the sidewalk, but didn't remember how she got there. His memory of events at the police station was hazy, and he said he could not recall any of them.

After the defense rested, the State offered the tape recording into evidence to rebut the credibility of appellant's mother Helen Jacks, regarding her testimony concerning the telephone conversation. The tape recording was also offered to rebut appellant's credibility regarding his statements about his mental condition at the time. The court permitted the tape to be played to the jury after admonishing and instructing them that it could be considered only for the purpose of impeaching Helen Jacks' and appellant's credibility, and was not to be considered as evidence of the commission of the act.

The conversation was as follows:

"Helen Jacks: Hello?

Edward Jacks: Hello.

Helen Jacks: Hello?
Edward Jacks: Mom?
Helen Jacks: Denny?

Edward Jacks: Hello.

Helen Jacks: Yes?
Edward Jacks: Where's Dad?

Helen Jacks: He's next door at your neighbor's.

Edward Jacks: Well, I'm in jail.

Helen Jacks: I know it. Well, how do you feel about that? That's what you wanted, wasn't it?

Edward Jacks: Hello?
Helen Jacks: Yes?

Edward Jacks: Well, is he going to come down and talk to me or what?

Helen Jacks: They won't let him talk to you.

Edward Jacks: They won't let him talk to me?

Helen Jacks: No, but he's at what is your neighbor's name? I can call him down there.

Edward Jacks: Best.

Helen Jacks: I don't know. Do you know their phone number?

Edward Jacks: The first name is John. The last name is Best.

Helen Jacks: B-E-S-T?

Edward Jacks: B-E-S-T.

Helen Jacks: John?

Edward Jacks: Yea.

Helen Jacks: Well, how come they let you call? Can't you call there?

Edward Jacks: Well, let me ask the men here if I can to that and we'll see. Is he down there now?

Helen Jacks: Yes. He's next door. I just talked to him.

Edward Jacks: Okay. Well, I'll try it that way.

Helen Jacks: Well, wait a minute now, he's trying to get hold of a lawyer so if the phone's busy, that's why. Denny, I still can't believe it.

Edward Jacks: What do you want me to have? Am I supposed to do something, or what?

Helen Jacks: I think you already did it.

Edward Jacks: Yea.

Helen Jacks: She sure never deserved that.

Edward Jacks: Huh?

Helen Jacks: She sure never deserved anything like that.

Edward Jacks: Push hard enough and it will break.

Helen Jacks: Huh?

Edward Jacks: Push hard enough and it will break.

Helen Jacks: Well, I begged you not to do it.

Edward Jacks: Well, we got a smart-ass brother saying he wanted an audience and all this kind of shit, that's what did it.

Helen Jacks: Oh, come on now.

Edward Jacks: Sorry."

Record at 848-50. The defendant claims the taped conversation should have been excluded from evidence under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1970). § 2515 of the Act provides:

"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . if the disclosure of that information would be in violation of this chapter."

The trial court allowed the recording to be played to the jury, relying on United States v. Caron, (5th Cir. 1973) 474 F.2d 506.

In Caron, the defendant had denied he was a gambler and that he ever gambled. The trial court admitted into evidence, for the limited purpose of rebutting defendant's testimony, an admittedly illegally wiretapped telephone conversation between the defendant and a bookmaker, in which bets and wagers were being placed. The Fifth Circuit Court of Appeals affirmed, citing Harris v. New York, (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and Walder v. United States, (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503. In Walder, the Supreme Court pointed out:

"It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by...

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