Mendez v. State, 64A03-8610-CR-289

CourtCourt of Appeals of Indiana
Citation508 N.E.2d 41
Docket NumberNo. 64A03-8610-CR-289,64A03-8610-CR-289
PartiesCharles MENDEZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Decision Date28 May 1987

James V. Tsoutsouris, James A. Johnson, Portage, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.


Defendant-appellant Charles Mendez appeals his convictions on two counts of dealing in heroin, Class B felonies.

The evidence relevant to this appeal discloses that Mendez became acquainted with Keith Crizer in late 1981. On January 4, 1982 Crizer, in his capacity as a confidential informant, contacted Mendez regarding the purchase of heroin. Mendez stated that he did not have any heroin at the time. The next day Mendez telephoned Crizer to set up the sale of some heroin. Crizer told Mendez that he would contact his "partner" who had the money. Crizer then telephoned the police officers for whom he was working.

Mendez drove to the trailer in which Crizer was staying. Crizer had been strip-searched and equipped with a recording device and transmitter. When Mendez arrived, Crizer went out to Mendez's car and purchased a gram of heroin from Mendez for $100.00. Although Mendez refused to meet Crizer's "partner," Mendez told Crizer that he was willing to conduct more business with Crizer.

Crizer then returned to the trailer and gave the heroin to the police officers. Crizer was again searched. While the officers heard the transaction through the transmitter, they discovered that the tape-recording had malfunctioned.

Crizer called Mendez and arranged to buy another gram of heroin on January 6. Again Mendez was not interested in meeting Crizer's "partner." However, the transaction on January 6 was successfully recorded.

Mendez was later arrested for selling heroin. His first trial in 1983 ended in a mistrial. Mendez's second trial in 1986 resulted in his convictions on both counts. This appeal ensued.

Mendez raises four issues on appeal. As restated, the issues presented for review are:

(1) whether the trial court erred in allowing into evidence the testimony of an unavailable witness who had testified in Mendez's previous trial; thereby denying Mendez his Sixth Amendment right to confrontation;

(2) whether the trial court erred in allowing into evidence a tape-recording over Mendez's objection that the recording was inaudible;

(3) whether the State established a sufficient chain of custody for introduction of two of its exhibits which contained packets of heroin; and

(4) whether sufficient evidence supported the jury's verdicts of guilt.

Mendez's first trial ended in a mistrial after State's witness, Charles Brown, had testified under oath in the proceeding. Brown had been cross-examined by Mendez's attorney at the first trial. Mendez was represented by different counsel at this second trial when the State offered the transcribed testimony of Brown, due to Brown's unavailability. Mendez objected to the testimony only on the ground that the State failed to adequately demonstrate Brown's unavailability. However, on appeal Mendez urges that the admission of the prior testimony denied him his Sixth Amendment right to confrontation. Notwithstanding Mendez's failure to properly object, the issue will be addressed.

In Spence v. State (1979), 182 Ind.App. 62, 393 N.E.2d 277, this Court outlined the necessary factors when determining whether prior testimony meets the constitutional guarantees of the Sixth Amendment. The court must determine whether "the witness was under oath at the prior proceeding, whether the defendant was represented by counsel at the prior proceeding, whether the prior proceeding was conducted before a judicial tribunal equipped to provide a judicial record, and whether the defendant had every opportunity to cross-examine the witness as to his statement." Spence, supra, 393 N.E.2d at 280-281.

Mendez argues that Spence also requires that the defendant be represented by the same counsel at both proceedings before the testimony from a prior proceeding may be used. Such was the case in Spence, but Spence does not set out continuity of representation as a requirement.

In the present case Brown was under oath at the prior proceeding, Mendez was represented by counsel, the prior proceeding was before a judicial tribunal and recorded, and Mendez's attorney cross-examined Brown regarding his statements. Under the requirements noted in Spence, supra, Brown's testimony from the previous proceeding was admissible.

Next Mendez argues that the tape-recording offered by the State as evidence of the second drug transaction was inaudible; thus, the trial court erred in allowing the tape to be played to the jury. Admissibility of a tape-recording is judged by the foundational...

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1 cases
  • Bates v. State, 79A02-8610-CR-377
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1988
    ...trial court, and we reverse only upon an abuse of that discretion. Wallace, supra, 498 N.E.2d at 965; Mendez v. State (1987), Ind.App., 508 N.E.2d 41, 43. Lamar suggests, however, that the appellate court should review the tapes and justice demands that the appellate court substitute Page 1......

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