Stoker v. State, No. 33A01-9701-CR-19

Docket NºNo. 33A01-9701-CR-19
Citation692 N.E.2d 1386
Case DateApril 06, 1998
CourtCourt of Appeals of Indiana

Page 1386

692 N.E.2d 1386
Alan STOKER, Appellant-Defendant,
v.
STATE of Indiana, Appellee.
No. 33A01-9701-CR-19.
Court of Appeals of Indiana.
April 6, 1998.

Page 1387

Michael R. Burrow, Jeffrey S. Neel, Wolf & Burrow, Greenfield, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee.

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

Page 1388

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

Page 1389

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

Page 1390

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...

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15 practice notes
  • State Of Conn. v. Lockhart., No. 17773.
    • United States
    • Supreme Court of Connecticut
    • October 12, 2010
    ...including advice of rights, waiver of rights, questioning and confessions, is better practice than partial recording); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind.App.1998) (strongly recommending policy of recording custodial interrogations); State v. Kilmer, 190 W.Va. 617, 629, 439 S.E.2d ......
  • Clark v. State, No. CR 07-1276.
    • United States
    • Arkansas Supreme Court
    • September 25, 2008
    ...Ill.Dec. 472, 543 N.E.2d 1040 (1989), rev'd on other grounds, 141 Ill.2d 147, 152 Ill.Dec. 377, 565 N.E.2d 1295 (1990); Stoker v. State, 692 N.E.2d 1386 (Ind.Ct.App.1998); State v. Morgan, 559 287 S.W.3d 575 N.W.2d 603 (Iowa 1997); State v. Speed, 265 Kan. 26, 961 P.2d 13 (1998); Brashars v......
  • Commonwealth v. DiGiambattista
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 6, 2004
    ...46, 49 (Colo. Ct. App. 1992); State v. James, 237 Conn. 390, 432, 434 (1996); State v. Kekona, 77 Haw. 403, 409 (1994); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998); People v. Fike, 228 Mich. App. 178, 189-190 (1998) (Fitzgerald, J., concurring in part and dissenting in part)......
  • Commonwealth v. DiGiambattista, SJC-09155 (MA 8/16/2004), SJC-09155
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 2004
    ...46, 49 (Colo. Ct. App. 1992); State v. James, 237 Conn. 390, 432, 434 (1996); State v. Kekona, 77 Haw. 403, 409 (1994); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998); People v. Fike, 228 Mich. App. 178, 189-190 (1998) (Fitzgerald, J., concurring in part and dissenting in part)......
  • Request a trial to view additional results
15 cases
  • State Of Conn. v. Lockhart., No. 17773.
    • United States
    • Supreme Court of Connecticut
    • October 12, 2010
    ...including advice of rights, waiver of rights, questioning and confessions, is better practice than partial recording); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind.App.1998) (strongly recommending policy of recording custodial interrogations); State v. Kilmer, 190 W.Va. 617, 629, 439 S.E.2d ......
  • Clark v. State, No. CR 07-1276.
    • United States
    • Arkansas Supreme Court
    • September 25, 2008
    ...Ill.Dec. 472, 543 N.E.2d 1040 (1989), rev'd on other grounds, 141 Ill.2d 147, 152 Ill.Dec. 377, 565 N.E.2d 1295 (1990); Stoker v. State, 692 N.E.2d 1386 (Ind.Ct.App.1998); State v. Morgan, 559 287 S.W.3d 575 N.W.2d 603 (Iowa 1997); State v. Speed, 265 Kan. 26, 961 P.2d 13 (1998); Brashars v......
  • Commonwealth v. DiGiambattista
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 6, 2004
    ...46, 49 (Colo. Ct. App. 1992); State v. James, 237 Conn. 390, 432, 434 (1996); State v. Kekona, 77 Haw. 403, 409 (1994); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998); People v. Fike, 228 Mich. App. 178, 189-190 (1998) (Fitzgerald, J., concurring in part and dissenting in part)......
  • Commonwealth v. DiGiambattista, SJC-09155 (MA 8/16/2004), SJC-09155
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 2004
    ...46, 49 (Colo. Ct. App. 1992); State v. James, 237 Conn. 390, 432, 434 (1996); State v. Kekona, 77 Haw. 403, 409 (1994); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998); People v. Fike, 228 Mich. App. 178, 189-190 (1998) (Fitzgerald, J., concurring in part and dissenting in part)......
  • Request a trial to view additional results

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