Music v. State, 980S383
| Decision Date | 13 November 1981 |
| Docket Number | No. 980S383,980S383 |
| Citation | 427 N.E.2d 1071 |
| Parties | Charles J. MUSIC, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Howard S. Grimm, Jr., Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.
Charles Music, the appellant, was charged by an information with murder, Ind.Code § 35-42-1-1, and was convicted by a jury of the included offense of voluntary manslaughter, a class B felony, Ind.Code § 35-42-1-3. He was sentenced to a term of twenty years in prison. His motion to correct error was denied and this appeal follows.
The issue on appeal is whether Music was denied a fair trial because a transcript of a tape-recorded interview between himself and his counsel conducted at the county jail after his arrest, was intercepted and copied by an employee of the sheriff's department.
In a hearing on his motion to correct error, Music sought to show that his attorney delivered an envelope to him at the Wabash County Jail where he was held following his arrest for the killing of his wife. The envelope contained a transcription of a tape-recorded interview between Music and his attorney. The recording was made by the attorney with Music's knowledge, and he had requested a copy of the transcription for his records. Music sought to show that at the direction of a captain of the Wabash County Sheriff's Office, a civilian employee of the county jail made a photocopy of the contents, and placed the photocopy in the file on Music's case which was eventually seen by the prosecutor in charge of the case.
The envelope and the transcription were introduced in evidence at the hearing. In the interview Music related that he was looking for his estranged wife on the day of the killing and, suspecting that she was at the home of another man, he went to his trailer, obtained a sawed-off shotgun, went to the home of the other man, and found his wife there. When counsel asked Music what happened then, he said, "All I know is the gun discharged."
Music sought to show by his testimony at the motion to correct error hearing that the State used information improperly obtained from the interview to build its case. He argues on appeal that absent the information contained in the transcription he might have been found either not guilty, or guilty of a less serious lesser included offense than voluntary manslaughter. The appellant's brief cites Procunier v. Martinez, (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224, and cases interpreting it, for the general, and unquestioned, proposition that mail coming to prisoners from courts or attorneys may be opened by prison authorities only in the presence of the prisoners, and only for the purpose of intercepting contraband, and that the contents may not be censored except to the extent they contain escape plans or other information concerning proposed criminal activity, or encoded messages.
Music argues that he should be granted a new trial, even in the absence of a showing of prejudice flowing from the interception of the transcript, because the interception itself amounted to the denial of effective assistance of counsel, citing Coplon v. United States, (D.C.Cir.1951) 191 F.2d 749, cert. den. 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690.
In Coplon, the United States Court of Appeals, District of Columbia Circuit, held, inter alia, that the trial court should have afforded the appellant a hearing on her allegations that the government listened through a wiretapping device to her telephone conversations with her attorney before the trial and while it was going on. The case was remanded for a hearing to determine whether the alleged interceptions actually occurred. If they had, the district court was to "award a new trial at which the accused can be free of surreptitious interceptions of her telephone conversations with her counsel, and can enjoy the right of his effective assistance which is guaranteed by the Constitution." Id. at 760. At the same time, however, the Court of Appeals concluded that none of the evidence could have been the result of intercepted telephone conversations, and held that the district court did not err in denying the motion for a new trial insofar as it was based on the theory that the government's proof was obtained by, or arose from leads obtained through, the wiretapping.
The conclusion reached in Coplon is not viable in light of the doctrine of harmless constitutional error, Chapman v. United States, (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
The Supreme Court held in Chapman that not all trial errors that violate the Constitution automatically call for reversal, but "before a federal constitutional error can be held harmless, the court must be able to declare its belief that it was harmless beyond...
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...regard to additional testimony or evidence which was presented at his trial. Lloyd v. State (1983), Ind., 448 N.E.2d 1062; Music v. State (1981), Ind., 427 N.E.2d 1071; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158. Appellant was not therefore burdened by the admission of statement fiv......
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