Lopez v. State

• Decision Date: 06 September 1988
• Docket Number: No. 64S00-8705-CR-483,64S00-8705-CR-483
• Citation: 527 N.E.2d 1119
• Parties: Jesse LOPEZ, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1119

527 N.E.2d 1119

Jesse LOPEZ, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below).

No. 64S00-8705-CR-483.

Supreme Court of Indiana.

Sept. 6, 1988.

Thomas J. Organ, Chicago, Ill., James A. Johnson, Portage, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On March 27, 1986, following a jury trial, Jesse Lopez was found guilty of Aiding in the Delivery of Cocaine, a class A felony, and of Dealing in a Sawed-Off Shotgun, a class D felony. On the charge of Aiding in the Delivery of Cocaine, Lopez was sentenced to the thirty (30) years determinate sentence to which the court added ten (10) years for aggravating circumstances. Lopez was further sentenced to a four (4) year term for the charge of possession of a sawed-off shotgun, the sentences to run concurrently. Lopez directly appeals raising several issues for our review, which we restate and renumber as follows:

1. whether the trial court erred by excluding the prior inconsistent statement of Pedro Rodriguez;

2. whether testimony about recorded telephone conversations violated the best evidence rule;

3. whether statements made by the deputy prosecutor constituted prosecutorial misconduct;

4. whether the State's failure to disclose an alleged agreement to reduce Rodriguez's sentence if he testified against Lopez constituted prosecutorial misconduct;

5. whether Lopez was denied effective assistance of trial counsel;

6. whether the trial court abused its discretion by failing to question a juror who had been accused of misconduct;

7. whether the trial court erred by modifying Lopez's tendered final instruction No. 1;

8. whether the trial court erred by giving the State's tendered final instruction No. 3;

9. whether the trial court erred in permitting opinion testimony from a D.E.A. Special Agent;

10. whether the trial court erroneously allowed Pedro Rodriguez to testify about statements made by Manuel Mendez, who did not appear at trial;

11. whether Lopez was denied due process of law by the court's consideration of material contained in the presentence report;

12. whether the trial court abused its discretion in sentencing; and

13. whether the trial court erred when it denied Lopez's motion to declare I.C. 35-48-4-1 and I.C. 35-50-2-2 unconstitutional.

The facts supporting the verdict below show that in early 1985, Michael Krawczyk, an undercover officer with the Porter County Narcotics Unit, was negotiating with Kathy Tuft to purchase two kilograms of cocaine. Tuft's friend, Pedro Rodriguez, called Krawczyk on March 5, 1985, and offered to help out with the drug purchase. Over the next week, Rodriguez and Krawczyk had several telephone conversations regarding the drug deal, all of which were tape-recorded. An agreement was reached wherein Rodriguez would sell Krawczyk a small sample of cocaine. That sale was concluded on March 6, 1985. The parties further agreed to transact the two-kilo drug deal on March 11th at 9:00 a.m. at the Indiana Toll Road Plaza.

On the morning of March 11th Rodriguez and Mendez had several discussions with Krawczyk, amended the quantity and price which had been agreed upon, and verified that Krawczyk had the money. At this same time, Defendant Lopez contends he was travelling from Knox to Gary with his family, in anticipation of leaving on vacation. Lopez claims they arrived at the home of Lopez's sister-in-law at approximately 11:00 a.m. Lopez intended to have his wife's car inspected prior to leaving on vacation and asked his sister-in-law if he could have that done at her house. Lopez planned to have Mendez look at the car since Mendez had worked on Lopez's cars in the past. This evidence conflicts with the testimony of Rodriguez, who claimed he and Mendez saw Lopez that morning prior to the drug deal in Lake Station at the home of a woman named Debbie. Rodriguez, however, also gave a taped statement to police exonerating Lopez which was not allowed into evidence at trial.

Around noon on March 11th, Krawczyk and Rodriguez were waiting in Krawczyk's car at the plaza. Mendez and Lopez drove up behind them with Lopez driving. Rodriguez told Krawczyk, "Micky (Mendez) brought the main man with him," referring to Lopez. Mendez got out of his car and delivered one kilo of cocaine to Rodriguez and Krawczyk. Lopez never left the car. Krawczyk tested the drugs and signaled his fellow officers to effect the drug bust. Rodriguez surrendered, Mendez fled and Lopez was dragged from the car, forced to the ground and arrested. Lopez's handgun, a semi-automatic pistol, was found on the car seat under Lopez's leg, and a sawed-off shotgun was found under Lopez's seat. Two shotgun shells which fit the shotgun were found. The cocaine was analyzed and found to be 840.18 g. of 70% pure cocaine. At trial, Rodriguez named Lopez as the "main man", the source of the cocaine.

I

Pedro Rodriguez pled guilty to the charges against him and testified for the State against Lopez. On direct examination Rodriguez testified that Lopez threatened him in jail if he would not inform Lopez's attorney that Lopez was innocent. Rodriguez admitted making the statement, but repudiated the contents of the statement, claiming he was coerced by Lopez's threats. During cross-examination, Lopez offered the tape into evidence to impeach Rodriguez's assertion he was in fear when he talked to defense counsel. The State opposed admission on the ground that extrinsic proof was improper since Rodriguez admitted making the inconsistent statement. The tape was not admitted. During cross-examination, Rodriguez was confronted with his prior statement and repeated his repudiation. After the State rested and before the defense began its case-in-chief, Lopez again moved for admission of the tape as impeachment evidence, but also as substantive evidence under Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482. Admission was denied again.

Lopez argues the trial court erred by excluding Rodriguez's prior inconsistent statement which was offered to impeach Rodriguez and as substantive evidence. However, to properly preserve an exclusion issue, the refused evidence must be placed in the record as an excluded exhibit. Doerner v. State (1986), Ind., 500 N.E.2d 1178, 1182; Reames v. State (1986), Ind., 497 N.E.2d 559, 563. Lopez has failed to include the tape in the record.

Lopez asserts the statements should have been admitted so the jury could determine whether Rodriguez's explanation of coercion was valid. He further claims that pursuant to Patterson, this court would permit the use of the statements for impeachment purposes and as substantive evidence. The State concedes the statement may have been admissible. See Music v. State (1983), Ind., 448 N.E.2d 1082, 1085-86; Fletcher v. State (1982), Ind., 442 N.E.2d 990, 992-93; Cook v. State (1978), 269 Ind. 227, 379 N.E.2d 965, 966. However, a new trial will be ordered only on a demonstration that the error resulted in such prejudice that the appellant was denied a fair trial. See Henderson v. State (1983), Ind., 455 N.E.2d 1117, 1119; Martin v. State (1983), Ind., 453 N.E.2d 1001, 1006. The erroneous exclusion of evidence will be deemed harmless if the same facts are admitted through other means because the excluded evidence would then be only cumulative with the admitted evidence. Reames, 497 N.E.2d at 564; Smith v. State (1968), 250 Ind. 125, 131-32, 235 N.E.2d 177, 181.

Here, although the statement was not played for the jury, the relevant contents were acknowledged by Rodriguez and fully revealed to the jury during his direct and cross-examination. Lopez does not allege that the jury was uninformed about any relevant comment by Rodriguez in the statement. Lopez argues that playing the tape would have increased the credibility of and probative value of the prior statement over Rodriguez's directly contradictory trial testimony. However, the jury had ample evidence to judge Rodriguez's in-court repudiation. Thus, as Lopez has not shown how he was harmed, nor that the harm prejudiced the result, any error in excluding the tape is not reversible error.

II

Lopez argues that Officer Krawczyk's testimony about his recorded telephone conversations with Rodriguez violated the best evidence rule, and that the recordings should have been played. However, when a witness has personal knowledge of the facts contained in the best evidence, the best evidence rule will not bar the witnesses' testimony since the witness is not being asked to reveal the contents of the best evidence, but rather is being asked to recall his own independent observations. Jackson v. State (1980), 274 Ind. 297, 299-301, 411 N.E.2d 609, 611-12. Accord, Steele v. State (1988), Ind., 519 N.E.2d 559, 560; Gerrick v. State (1983), Ind., 451 N.E.2d 327, 333. Krawczyk was asked to relate the contents of his telephone conversations with Rodriguez wherein the cocaine deal was arranged. He was not asked to give the contents of the recordings. Therefore, the best evidence rule is inapplicable.

Further, Lopez fails to show any harm resulting from Krawczyk's testimony. Lopez merely asserts that the failure to present the jury with the best evidence prejudiced him in that it permitted officer Krawczyk to be selective in his characterization of the substance of the conversations. To be entitled to reversal, Lopez must show there was error prejudicial to his substantial rights. Wade v. State (1986), Ind., 490 N.E.2d 1097, 1105. An effective objection must identify an actual dispute over the accuracy of the secondary evidence. Jackson, 274 Ind. at 301-302, 411 N.E.2d at 612. Lopez was provided with all of tapes of the 15 to 20 conversations before trial and, presumably, was aware of their contents. Neither at trial nor on appeal has Lopez alleged any inaccuracy in Krawczyk's testimony about the conversations. Consequently, even if we deemed the best...