ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey A. Baldwin Gregory F. Zoeller
Baldwin, Dakich & Maxwell Attorney General of Indiana
Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Feb 09 2011, 1:10 pm
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 49S04-1009-CR-499
NOE ROMO, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49G20-0801-FA-21754
The Honorable Steven Eichholtz, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 49A04-1003-CR-143
_________________________________
February 9, 2011
Dickson, Justice.
In the defendant's trial on three counts of Dealing in Cocaine or Narcotic Drugs, a class A
felony, the evidence included an English language translation transcript of clandestinely recorded
conversations in Spanish between the defendant and a police informant during the commission of
the offenses. The jury found the defendant guilty on all charges, and the trial court entered
judgment and sentenced accordingly. The Indiana Court of Appeals affirmed. Romo v. State,
929 N.E.2d 805 (Ind. Ct. App. 2010). We granted transfer and now affirm the convictions, hold-
ing that written English translations of foreign language recordings may be admitted as substan-
tive evidence and that the recordings themselves generally should be admitted and played as
well, but that, under the circumstances presented here, the failure to play the Spanish recordings
is not reversible error.
In appealing his convictions, the defendant has presented three claims: (1) error in admit-
ting the transcripts of the audio tapes; (2) failure to establish the accuracy of the translation of the
transcripts; and (3) error in allowing a police detective to give opinion testimony without a prop-
er foundation. On transfer, we address only the first claim. With respect to the other issues, we
summarily affirm the decision of the Court of Appeals.1 As to the first issue, the defendant as-
serts on appeal that the trial court erred in admitting the transcripts into evidence as an exhibit
instead of as an aid to the audio recording. He argues that transcripts of audio recordings may
serve only as an aid to the jury in interpreting an audio recording, and that because the Spanish-
language audio recordings were not played for the jury, the English translation transcripts served
no proper function and were therefore improperly admitted as evidence. The focus of the defen-
dant's claim both at trial and on appeal is that the transcripts were erroneously admitted in evi-
dence, not an assertion of error in the failure to play the Spanish-language recordings to the jury.
At trial, when the State offered the translation transcripts into evidence, the defendant
made several unsuccessful objections.2 After the court overruled the objections and ordered
twelve copies made for the jurors, the prosecutor inquired whether the audio recordings would be
played and indicated that the State "had envisioned playing the audio recordings so that the jury
could hear kind of the tone of the conversation." Tr. at 367. The trial court ruled that the record-
ings, being in Spanish, would not be played.3 In the ensuing colloquy, when the trial court in-
vited counsel to "tell me the point of playing the Spanish audio," the defense replied, "No. I don't
see any point. I understand it's a unique situation." Id. at 370. But defendant's counsel at this
1
Ind. Appellate Rule 58(A)(2).
2
The defense objections included (1) hearsay, citing Indiana Evidence Rule 803(8)(a) and (b),
asserting that the transcripts were akin to police reports and not within the hearsay exception for public
records and reports, Tr. at 264, 350; (2) improper evidence of other crimes or wrongs under Evidence
Rule 404(b), id. at 350; (3) hearsay within hearsay, id.; (4) improper conclusory evidence, id.; and (5) un-
necessarily cumulative evidence, id. at 363. The defendant's appeal does not challenge any of the trial
court's rulings on these objections.
3
The audio recordings, identified as State's Exhibits 28, 29, and 30, were admitted in evidence
but not played to the jury. Tr. at 383–84.
2
time did raise an additional objection to the admission of the transcripts—that transcripts can be
used only to assist in the jury's understanding of the audiotapes, and thus, without the audio be-
ing played, there is no proper reason for the admission of the transcripts. Id. at 368–70. This
issue, raised by objection at trial and now presented on appeal, challenges only the admission of
the translated transcripts and does not dispute the trial court's refusal to play the audio recordings
to the jury.
The defendant's three convictions arise from incidents on May 10, May 16, and August 6
in 2007. A confidential informant (CI) assisted the Indianapolis Metropolitan Police Department
(IMPD) in conducting covert narcotics transactions with the defendant. Three transactions were
recorded using police video surveillance and police-issued audio recording equipment worn by
the CI. In the course of the three transactions, the defendant sold an aggregate total of about four
ounces of cocaine to the CI for a total of $4,000. All of the communications between the CI and
the defendant were in Spanish. It was the defendant's conduct during these transactions for
which the State charged the defendant with three counts of Dealing in Cocaine, a class A felony.
The audio recordings of the transactions made by the CI were transcribed into an English transla-
tion by Elia James, a bilingual specialist with the IMPD. The transcripts were also repeatedly
reviewed and compared with the original audio by the CI; by bilingual IMPD Detective Jesus
Soria, whose native language is Spanish; and by Azalea DeFord, a translator for the Marion
County Prosecutor's Office and a Certified Indiana Court Interpreter. In advance of the trial, the
State provided the audio recordings and the transcripts to the defense.
The Indiana Rules of Evidence do not explicitly address the admissibility of written
translations, but Evidence Rule 1002 states, "To prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except as otherwise pro-
vided in these rules or by statute." Exceptions are listed in Evidence Rule 1004, but they do not
provide any authorization to use transcripts in place of original recordings. Following the codifi-
cation of Indiana evidence law with the adoption of the Rules of Evidence, which became effec-
tive January 1, 1994, this Court has considered the admissibility of transcripts of recorded state-
ments in three cases.
3
In Small v. State, 736 N.E.2d 742 (Ind. 2000), the defendant claimed error in admitting
and providing the jury with copies of transcripts of the defendant's recorded statement to police.
This Court noted prior case law to the effect that a transcript normally should be used "only to
assist the jury as it listens to the tape," but that there may be a need for transcripts due to "inau-
dibility of portions of the tape," and that the jury should be instructed to "rely on what they hear
rather than on what they read when there is a difference." Id. at 748. We held that the trial court
erred "in admitting the transcript as an exhibit as opposed to serving only as an aid to the jury in
interpreting inaudible or indistinct portions of the tape-recorded statement." Id. at 749. But we
declined to reverse because, in light of the other evidence, the erroneous admission did not pre-
judice the defendant's substantial rights. Id. A similar analysis and result is found in Tobar v.
State, 740 N.E.2d 106 (Ind. 2000), in which the trial court had admitted into evidence the defen-
dant's two videotaped statements to authorities and transcripts of such video. Applying Small,
we determined that it was erroneous "for the transcript to be admitted as an exhibit as opposed to
its use purely as an aid in understanding inaudible portions of the recorded statement," but we
affirmed, finding that such error did not affect the defendant's substantial rights. Id. at 108. We
likewise applied Small and Tobar in Roby v. State, 742 N.E.2d 505 (Ind. 2001), to find harmless
error in the admission of a recording transcript but noted that "here, the State does not contend
that the transcript was necessary to clarify indistinct dialogue on the videotape." Id. at 508.
Although Small, Tobar, and Roby view the function of transcripts of recordings purely as
an aid to assist a jury's understanding of the actual recording, and Evidence Rule 1002 requires
the original of a recording, if available, to be submitted in evidence as proof of the contents of
the recording, both Small and Roby leave open the possibility of a more robust role for tran-
scripts where the recording is inaudible or indistinct. For juries without appropriate foreign lan-
guage comprehension,4 audio recordings of foreign language speakers may fall into this category
and require special consideration. This issue has received some attention in the federal courts.
In a case with significant similarities to the present one, the Seventh Circuit found it per-
missible for a trial court to admit English translations of conversations recorded in Spanish with-
4
We find nothing in the record indicating that any of the jurors were questioned about their abili-
ty to understand Spanish. There is no evidence that any member of the jury understood a language other
than English.
4
out playing the Spanish recordings to the jury. United States v. Estrada, 256 F.3d 466 (7th Cir.
2001). Finding the district court's refusal to allow the Spanish tapes to be played was not an
abuse of discretion, the court observed, "[I]t becomes apparent that the district court saw no val-
ue in allowing a presumably English speaking jury to hear tapes that were recorded in Spanish.
It is difficult to second-guess such a decision." Id. at 473. We note that the issue in Estrada, the
trial court's refusal to play the Spanish recordings, is not presented in the present case, which
challenges the trial court's admission of the English translation transcripts, without playing the
Spanish recordings to the jury, as substantive evidence rather than merely as an aid to assist the
jury's understanding of the actual recordings.
The Fifth Circuit has expressly allowed a transcript of a taped conversation to be admit-
ted as substantive evidence, United States v. Onori, 535 F.2d 938 (5th Cir. 1976), and further has
held that "an English translation transcript can be introduced into evidence without admitting or
playing the underlying foreign language tape for the jury," United States v. Valencia, 957 F.2d
1189, 1194 (5th Cir. 1992), overruled on other grounds. As to whether the trial court erred in
refusing the defendant's request to play the Spanish recording to the jury, the Valencia court
found this to be entirely within the trial court's discretion but observed "one could plausibly ar-
gue that the better, more consistent approach would have been to have the jury listen to the tape,
just as the jury listened to the Spanish speaking witness." Id. at 1196. Citing Valencia, the
Eighth Circuit likewise found no abuse of discretion in a trial court's admission into evidence
only the English translation transcripts of Spanish recordings. United States v. Grajales-
Montoya, 117 F.3d 356, 367 (8th Cir. 1997). And more recently, it approved a trial court in-
struction advising the jury that "[w]here the discussions were in English, transcripts are not evi-
dence. On the other hand, where the discussions were in Spanish, transcripts of the discussions
as translated into English are evidence, and you may consider those transcripts like any other
evidence during your deliberations." United States v. Placensia, 352 F.3d 1157, 1165 (8th Cir.
2003).
The issue in the present appeal is essentially whether the trial court committed reversible
error by admitting into evidence as substantive evidence the three translation transcripts of the
Spanish recordings.
5
The general requirement of Evidence Rule 1002 is that, to prove the content of a record-
ing, the original recording is required. Here, under the reasonable assumption that the jury did
not comprehend Spanish, the original recording, being solely in Spanish, would not likely con-
vey to the jury the content of the recorded conversations. Applying the rule to limit the evidence
of content to the original Spanish recordings would not serve the purpose of the rule because it
could not prove any content to the jury. We thus hold that the admission into evidence of foreign
language translation transcripts is not governed by Evidence Rule 1002. There remains, howev-
er, the existing precedent of this Court noted in Small, Tobar, and Roby, each of which found
trial court error in admitting a transcript as substantive evidence as opposed to admitting it as an
aid to the jury in interpreting a recorded statement. But none of these cases involved a transla-
tion transcript of a statement recorded in a foreign language. In such circumstances, it is the
English language transcript, not the foreign language recording, that will be the overwhelming, if
not exclusive, source of relevant, probative evidence. Refusing to consider such translation tran-
scripts as substantive evidence is contrary to the aspiration of the Indiana Rules of Evidence fa-
voring "promotion of growth and development of the law of evidence to the end that the truth
may be ascertained and proceedings justly determined." Ind. Evid. R. 102. We hold that English
language translation transcripts of statements recorded in a foreign language, if otherwise ad-
missible, may properly be considered as substantive evidence.
Although the defendant does not here focus on the trial court's refusal to play the Spanish
recordings, in the exercise of our general supervisory authority, we determine that it is generally
the better practice to play such foreign language recordings to the jury upon a reasonable request
by a party. Expediency undoubtedly results when a jury is spared from listening to foreign-
language recordings, and practical usefulness is served by providing them instead with reliable
English translations or translation transcripts. But we value even higher the capacity of jurors to
apply their sensing and intuition faculties in reaching their determinations. Some of our federal
colleagues have expressed reservations about the ability of a jury fluent in only English to mea-
ningfully and reliably interpret oral demeanor, tone, inflection, hesitation, enthusiasm, reluc-
tance, submission, etc. See, e.g., Grajales-Montoya, 117 F.3d at 367 ("[The defendant] has sug-
gested no reliable means of enabling people who do not speak Spanish to interpret inflections
6
and tone, and we cannot think of any, either."); Estrada, 256 F.3d at 473 ("Understandably, the
district court may have doubted whether a jury not proficient in Spanish would be able to proper-
ly comprehend from the tapes an individual's tone or inflection."). We are not persuaded that
such discernable clues regarding demeanor, which could be significant in individual cases, are
necessarily impervious to listeners who do not comprehend the language spoken. This consider-
ation would be particularly relevant if we were considering a video recording of statements made
in a foreign language. Upon request of a party, a trial court should play for the jury such record-
ing, if otherwise admissible. A refusal to do so will be reviewed on appeal for abuse of discre-
tion, including a consideration of the nature of the request and the proffered reasons for playing
the recording. No abuse of discretion will result where, as here, the defendant not only fails to
support such request with reasons why playing the recording would provide discernable, relevant
evidence but also concedes to the trial court that he doesn't "see any point" in playing the Span-
ish audio. Tr. at 370.
The trial court did not err in admitting the translation transcripts. Having summarily af-
firmed the Court of Appeals on all other issues, the judgment of the trial court is affirmed.
Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.
7