Lahr v. State
| Decision Date | 05 October 1994 |
| Docket Number | No. 38A02-9305-CR-230,38A02-9305-CR-230 |
| Citation | 640 N.E.2d 756 |
| Parties | Charles P. LAHR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Charles P. Lahr appeals his conviction by jury of Conspiracy to commit murder, 1 a Class A felony. We affirm.
We restate the issues for our review as:
1. Whether there was sufficient probative evidence to overcome Lahr's entrapment defense.
2. Whether the trial court erred by admitting into evidence a letter written by Lahr and an audio tape of his conversation with an informant.
3. Whether the trial court erred in limiting cross-examination of a witness about his prior juvenile conviction.
4. Whether the trial court erred in denying Lahr's request for a new trial based upon newly discovered evidence.
5. Whether the trial court erred in refusing Lahr's tendered instructions on assisting a criminal as a lesser included offense of conspiracy to commit murder.
The facts most favorable to the jury's verdict show that in June, 1991, Lahr was arrested for selling marijuana and illegal drugs. David Denney had been a frequent visitor to the game arcade and martial arts studio in Portland, Indiana owned by Lahr and had visited Lahr while he was in jail on the drug charges. Shortly after Lahr was released from jail, he and Roy Hills met with Denney. Lahr asked Denney to kill Richard Price, the main witness against Lahr on his drug charges and promised to provide Denney with an arcade of his own if he killed Price. At a later meeting with Lahr and Hills, Lahr gave Denney a shotgun to use in killing Price.
Denney informed the Portland, Indiana police of Lahr's plan. For his subsequent meetings with Lahr, Denney was equipped with a microphone connected to a radio transmitter so that the police could hear and record Denney's conversations with Lahr. At his next meeting with Lahr and Hills, Denney asked for a new gun, saying that the shotgun Lahr had provided was inoperable; Lahr replied that Denney could use a knife to kill Price. Denney declined this suggestion, and Lahr then gave Denney a .32 caliber revolver and ammunition. 3 Later that day, Denney told Lahr and Hills to obtain alibis because he was going to shoot Price. Denney awoke Lahr about 2:30 the next morning and falsely reported that Price was dead. After asking for money, Denney left, saying he was going to Florida. Shortly thereafter, the police arrested Lahr and Hills. Additional facts are supplied as necessary.
Lahr first argues that the State failed at trial to negate his defense of entrapment. Entrapment exists where an otherwise law-abiding citizen is induced through police involvement to commit the charged crime. Strong v. State (1992), Ind.App., 591 N.E.2d 1048, 1050, trans. denied. The defense is raised by showing police involvement in the criminal activity; no formal pleading of the defense is necessary. Id. at 1051. In reviewing the sufficiency of evidence negating an entrapment defense, we apply the same standard we use in all other challenges to sufficiency of the evidence. Morris v. State (1992), Ind.App., 604 N.E.2d 665, 669.
Determination of an accused's guilt or innocence in a criminal case is a matter for the trier of fact; here, a jury. See Davis v. State (1994), Ind.App., 635 N.E.2d 1117, 1120. We may not reweigh the evidence or judge the credibility of witnesses when we review the sufficiency of evidence. Id. Where the evidence is in conflict, we consider only that evidence which is most favorable to the jury's verdict. Webb v. State (1991), Ind.App., 575 N.E.2d 1066, 1071, trans. denied. We must affirm if substantial evidence of probative value supports the conviction. Adams v. State (1989), Ind.App., 542 N.E.2d 1362, 1366.
The defense of entrapment may be rebutted by showing the defendant had a predisposition to commit the crime. Grant v. State (1993), Ind.App., 623 N.E.2d 1090, 1098, trans. denied. Here, there was sufficient evidence from which the jury could find that Lahr was predisposed to commit the crime. Denney testified that Lahr first suggested the plan to kill Price, the key witness against Lahr in his drug case. At meetings with Denney and Hills, Lahr asked Denney to kill Price, discussed payment for the murder, and provided a shotgun, all before Denney went to the police. By enlisting Denney's aid, the police merely provided Lahr with the opportunity to commit an overt act furthering an existing conspiracy. See Wilhelm v. State (1983), Ind., 455 N.E.2d 595, 597 ().
A trial court has broad discretion in ruling upon the admissibility of evidence. We will not disturb its decision absent a showing that the trial court abused that discretion. Harless v. State (1991), Ind.App., 577 N.E.2d 245, 247.
While in jail on the charge in this case, Lahr wrote a note and gave it to a trustee to pass on to Hills. Instead, the trustee delivered the note to the jailer. At trial, the trustee identified the note as the one given to him by Lahr to be passed on to Hills.
Lahr now contends that at trial the State failed to prove a chain of custody for the note and that it was susceptible to tampering. For this reason, Lahr argues that it was error for the trial court to admit the note into evidence. At trial, however, Lahr objected that the note contained privileged information. In making his objection, Lahr admitted that foundation and chain of custody were proved: "[O]bviously they have shown a chain of custody and a foundation through Mr. Hills that he identified this to be Charles Lahr's handwriting." Record at 650. A defendant may not object for one reason at trial and then rely upon another on appeal. Ingram v. State (1989), Ind., 547 N.E.2d 823, 829. Failure to make the objection in the trial court waives it upon appeal. Id. Because Lahr did not object to the adequacy of foundation and chain of custody for the note at trial, any error in its admission is waived.
Even absent waiver, a new trial is not warranted. The admissibility of documents as exhibits is a matter within the discretion of the trial court and will be reversed only upon a showing of abuse of that discretion. Cobb v. State (1992), Ind.App., 585 N.E.2d 40, 43. To establish a proper foundation for the admission of a document, its authenticity must be proved. See Kern v. State (1981), Ind., 426 N.E.2d 385, 387. Absolute proof of authenticity is not required. Evidence demonstrating a reasonable probability that the exhibit is what it is claimed to be and that its condition is substantially unchanged as to any material feature is sufficient. Miller, Indiana Evidence § 901.101 at 266-67 (1984).
Here, proof of chain of custody was not needed to prove the authenticity of the note. The trustee identified the note which was offered into evidence as the one he received from Lahr. Hills also testified that he recognized Lahr's handwriting and that the note had been written by Lahr. The note was not fungible, and it was adequately identified; therefore, its admission was not error.
Four audio tape recordings of Denney's conversations with Lahr were offered into evidence. The trial court sustained Lahr's objections to three of the recordings and admitted only the tape of Denney's last meeting, when he reported Price's death to Lahr. Lahr argues that the tape which was admitted was not sufficiently clear as to be intelligible and enlightening to the jury and that the jury would speculate as to the tape's contents, to Lahr's prejudice.
The trial court has wide discretion in the admission of audio tapes. Sharp v. State (1989), Ind., 534 N.E.2d 708, 712, cert. denied, 494 U.S. 1031, 110 S.Ct. 1481, 108 L.Ed.2d 617 (1990). A recording made in a non-custodial setting 4 should be admitted into evidence only if it is of such clarity as to be intelligible and enlightening to the jury. McCollum v. State (1991), Ind., 582 N.E.2d 804, 811-12. Every word on the tape need not be intelligible for the tape to be admissible. Hestand v. State (1982), Ind., 440 N.E.2d 1121, 1122. We must instead review the tape as a whole to determine whether it would lead the jury to speculate as to its contents. Id.
Prejudice to a defendant may result from the admission of a partly unintelligible audio tape when it is used to bolster the credibility of a vulnerable witness, such as a police informant with a criminal record. The intelligible portions of the tape may corroborate part of the informant's story, but the jury is forced to speculate as to the unintelligible portions of the tape and may assume that the tape confirms the informant's entire story. See Roller v. State (1992), Ind.App., 602 N.E.2d 165, 171, trans. denied.
We have reviewed the tape and agree with Lahr that much of his portion of the conversation is too faint to be readily intelligible 5 and find that its admission was error. That error was harmless, however, due to additional evidence corroborating the informant's story. Two police officers listened on their radios to the conversation between Denney and Lahr. Denney and both police officers testified to the contents of that conversation at trial. The testimony of Denney and both police officers was mutually corroborating and was also corroborated by the intelligible portion of the tape. Lahr himself admitted to the taped conversation and said that he thought Denney was "wacko" and tried to humor him.
The substance of the conversation was reported by three witnesses. With such corroboration, there is no potential for prejudice to Lahr...
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