Stoker v. State

Decision Date06 April 1998
Docket NumberNo. 33A01-9701-CR-19,33A01-9701-CR-19
Citation692 N.E.2d 1386
PartiesAlan STOKER, Appellant-Defendant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court
OPINION

SULLIVAN, Judge.

Appellant, Alan R. Stoker, Jr. (Stoker), appeals his convictions upon four counts of Dealing in a Controlled Substance, 1 as Class C felonies.

We affirm.

Upon appeal, Stoker presents three issues, which we restate as follows:

(1) Whether Article One, Section Twelve of the Indiana Constitution requires that all custodial interrogations in places of detention be recorded.

(2) Whether the trial court erred in admitting evidence of Stoker's prior misconduct to rebut his entrapment defense.

(3) Whether the jury was improperly permitted to re-examine transcripts of the defendant's confession and of the controlled buy, both of which were admitted into evidence.

Stoker and Krystal Crouch purchased prescription narcotics in Mexico and brought the drugs across the border into the United States. Upon his return to Indiana, Stoker contacted Donna Covey (Covey) to arrange for her to sell the narcotics. Covey subsequently informed the Henry County Area Drug Task Force of Stoker's plan to distribute the drugs, and agreed to serve as a confidential informant. On January 20, 1996, police arrested Stoker in connection with a drug sale involving Covey.

I. ELECTRONIC RECORDING OF CUSTODIAL INTERROGATION

Stoker argues that he was deprived of his due process protections under Article One, Section Twelve of the Indiana Constitution 2 because his custodial interrogation was not electronically recorded in its entirety.

A. Caselaw From Other Jurisdictions

In Stephan v. State (1985) Alaska, 711 P.2d 1156, the Alaska Supreme Court held that the failure of police to create an electric recording during a custodial interrogation in a place of detention generally violates the due process rights of a suspect under the Alaska Constitution. 3 After acknowledging that the federal constitution imposed no similar requirement, the court construed its own constitution to afford greater protections than the former. Id. at 1160. Specifically, the court found because of its ease and inexpense, specifically in the context of custodial interrogations in detention facilities, recording "is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial." Id. at 1159-60. The court concluded that, absent a justifiable excuse, the failure to record a custodial interrogation will render any statement received therefrom inadmissible during trial.

Subsequently, in State v. Scales (1994) Minn., 518 N.W.2d 587, reh'g denied, the Minnesota Supreme Court imposed a similar obligation to record custodial interrogations in places of detention. 4 In establishing this prospective requirement, the court concluded that statements obtained from a suspect in substantial violation of the recording requisite would be suppressed. However, unlike Alaska Supreme Court, the court expressly declined to determine whether the Minnesota Constitution supported the imposition of a recording requirement. Rather, the court utilized its "supervisory power to insure the fair administration of justice ..." to reach its desired result. Id. at 592.

However, of the minimum twenty-three additional states which have addressed this issue, none have mandated that custodial interrogations be tape recorded. 5 In fact, Stephan remains the sole example of a state court construing its constitution to command such a requirement. Nonetheless, we decline to follow the route of the lemming, and choose to analyze the argument in light of the unique nature of the Indiana Constitution.

B. Analysis

Initially, we note that our case does not involve the preservation of exculpatory evidence, but creation of evidence which would provide alternative, but perhaps more reliable, proof of a fact, or would confirm and be in addition to other evidence of the same fact. 6 See State v. Spurgeon, supra, 820 P.2d at 962. However, in the absence of controlling precedent regarding the latter, we are guided in the present case by previous decisions pertaining to the analogous issue of evidence preservation. 7

In California v. Trombetta, (1984) 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not require police officers to preserve for trial breath samples obtained incident to drunk-driving arrests. According to the Court, a law enforcement agency must preserve evidence if it "might be expected to play a significant role in the suspect's defense." Id. at 488, 104 S.Ct. at 2534. Specifically, the "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489, 104 S.Ct. at 2534. Here, neither prong was satisfied, as the breath samples were more likely inculpatory and alternative means of challenging the accuracy of the breath analysis were available.

Subsequently, in Arizona v. Youngblood, (1988) 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, reh'g denied, the Court concluded that the Due Process Clause did not necessarily require police officers to preserve evidence which, if subjected to clinical tests, might exonerate the defendant. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 58, 109 S.Ct. at 337. In reaching its decision, the Court implicitly noted that to require officers to preserve every piece of evidence which might possibly exonerate the defendant would be unreasonable. See id.

Because tape recordings do not satisfy the standard of constitutional materiality enunciated in the above cases, the federal constitution seemingly imposes no duty to record custodial interrogations. See Stephan, supra, 711 P.2d at 1160. Nonetheless, we are not compelled to conclude that Article One, Section Twelve of the Indiana Constitution fails to encompass such a requirement. Rather, this court may interpret our state constitution to afford greater protections than those provided by the federal constitution. Taylor v. State (1994) Ind.App., 639 N.E.2d 1052, 1053.

Although not binding upon this court, we consider the rationale utilized by the Court of Appeals of Washington in Spurgeon, supra, 820 P.2d at 962, to be constructive. There, the court observed that the Alaska Court of Appeals, prior to the decision of the Alaska Supreme Court in Stephan, supra, 711 P.2d at 1156, concluded that its state constitution imposed a duty to preserve breathalyzer samples. Spurgeon, supra at 962. Therefore, the rationale advanced in Stephan to extend the protections afforded by the Alaska Constitution beyond that of the federal constitution under Trombetta, supra, 467 U.S. at 479, 104 S.Ct. at 2528, was not without precedent. On the other hand, because Washington courts previously concluded that the Washington Constitution did not command the preservation of breathalyzer samples, the Spurgeon court reasoned that application of a rule consistent with Trombetta was "a strong indication that our constitution does not require tape recorded interrogations." Spurgeon, supra at 963.

Although no court has considered whether our state constitution imposes a specific duty upon law enforcement officers to preserve breathalyzer samples, this court has applied the general rule enunciated in Youngblood, supra, 488 U.S. at 51, 109 S.Ct. at 333-34, with regard to evidence preservation issues under the Indiana Constitution. In Rita v. State (1996) Ind.App., 663 N.E.2d 1201, 1204, aff'd in part, vacated in part (1996) Ind., 674 N.E.2d 968, this court, after concluding that "the Indiana Due Course of Law requirement is analogous to the Due Process Clause of the Fourteenth Amendment", held that Youngblood was applicable to evidence preservation issues under our state constitution. 8 Therefore, similar to the court in Spurgeon, supra, 820 P.2d at 962, with respect to the Washington Constitution, this court has previously concluded that the standard for evidence preservation under the Indiana Constitution is consistent with the federal analysis. Accordingly, we hold that Article One, Section Twelve of the Indiana Constitution does not require law enforcement officers to record custodial interrogations in places of detention.

Nevertheless, although we impose no legal obligation, we discern few instances in which law enforcement officers would be justified 9 in failing to record custodial interrogations in places of detention. 10 Disputes regarding the circumstances of an interrogation would be minimized, in that a tape recording preserves undisturbed that which the mind may forget. See Stephan, supra, 711 P.2d at 1161. In turn, the judiciary would be relieved of much of the burden of resolving disputes involving differing recollections of events which occurred. Id. Moreover, the recording would serve to protect police officers against false allegations that a confession was not obtained voluntarily. Id. at 1162. Therefore, in light of the slight inconvenience and expense associated with the recording of custodial interrogations in their entirety, it is strongly recommended, as a matter of sound policy, that law enforcement officers adopt this procedure. 11

II. TESTIMONY CONCERNING PRIOR MISCONDUCT

Stoker also contends that the court erred in allowing testimony concerning his prior drug sales. Specifically, he argues that, pursuant to Ind.Evid.Rule...

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