ATTORNEYS FOR APPELLANT
Bruce A. Brightwell
Louisville, Kentucky
Bart M. Betteau
New Albany, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
_________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
CHARLES J. DESJARDINS, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 31S01-0111-CR-560
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 31A01-0002-CR-60
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE HARRISON SUPERIOR COURT
The Honorable Roger Davis, Judge
Cause No. 31D01-9801-CF-13
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
December 6, 2001
BOEHM, Justice.
Charles DesJardins was convicted of two counts of Child Molesting as
Class A Felonies, and one count of Child Exploitation as a Class D Felony.
At trial, the State introduced about four minutes of videotape that showed
DesJardins committing the offenses. One of DesJardins’ contentions on
appeal is that the trial court erred by denying his request under Indiana
Evidence Rule 106 to introduce the remaining four hours of videotape. We
grant transfer to address the applicability of Evidence Rule 106 to the use
of videotaped evidence and other modes of conveying information.
Scope of Indiana Evidence Rule 106
In the course of its opinion, the Court of Appeals considered
DesJardins’ contention that the trial court erred by admitting portions of
the videotapes but refusing to permit DesJardins to show the entire four
hours of tape to the jury. DesJardins v. State, 751 N.E.2d 323, 325-27
(Ind. Ct. App. 2001). In the trial court, DesJardins contended that the
entire tape was required to be admitted under the doctrine of completeness
as it is currently embodied in Indiana Rule of Evidence 106. That rule
provides:
When a writing or recorded statement or part thereof is introduced by
a party, an adverse party may require at that time the introduction of
any other part or any other writing or recorded statement which in
fairness ought to be considered contemporaneously with it.
The Court of Appeals held that a videotape is not a writing or
recording within the meaning of Rule 106 because a videotape is not
included in the list of “Writings and recordings” set forth in Rule
1001(1).[1] By contrast, Rule 1001(2) defines “Photographs” to include
“still photographs, x-ray films, videotapes, and motion pictures.” Evid.
R. 1001(2). As a result, the Court of Appeals reasoned that “by
definition, Rule 106 does not apply to the admission of videotapes.” 751
N.E.2d at 326.
We grant transfer to make clear that all modes of conveying
information, including videotapes, constitute writings or recordings for
purposes of Rule 106, even if they are defined by Rule 1001 as
“photographs.” As Rule 1001 explicitly states, its definitions are “for
purposes of this Article” of the Indiana Rules of Evidence. “[T]his
Article” is Article X, which deals with “Contents of Writings, Recordings
and Photographs,” and contains a number of provisions that treat “writings
and recordings” differently from “photographs.” But the purpose of Article
X is to address issues raised by the various means of reproduction of the
several media, such as what a “duplicate” or “original” means in the
context of technology that includes photographs, videotapes, etc. The
definitions are by their terms limited to that Article of the Rules of
Evidence.
On the other hand, Rule 106 is located in Article I, deals with
substantive fairness, and embodies a doctrine recognized at common law long
before Thomas Edison, Edwin Land or Bill Gates was heard from. Rule 106
provides, in straightforward terms, that if a party introduces a part of a
“writing or recorded statement”[2] and fairness requires that additional
portions of it be introduced, then an adverse party may require that the
additional parts be admitted. See, e.g., Evans v. State, 643 N.E.2d 877,
881-82 (Ind. 1994). Thus, the doctrine is wholly independent of the
peculiarities of the technology by which any particular medium transmits
information, and applies to any mode of conveying information, including
those identified for purposes of Article X as “photographs.” To the extent
other jurisdictions have considered the point, they have reached the same
conclusion under counterparts to Rule 106. See, e.g., United States v.
Spearman, 186 F.3d 743, 755 (6th Cir. 1999) (under Federal Rule of Evidence
106, defendant had opportunity to present videotape in its entirety after
government played only portions of video); State v. Austin, 585 N.W.2d 241,
244 (Iowa 1998) (State permitted to introduce entire videotape when
portions of information contained therein referred to by defense); State v.
Baca, 902 P.2d 65, 72 (N.M. 1995) (trial court should have admitted video
tape under rule of completeness).
Although we agree with DesJardins that the doctrine of completeness
embodied in Rule 106 is applicable to the videotapes in question, we agree
with the Court of Appeals in its alternative holding that DesJardins fails
to demonstrate the relevance of the absent portions about which he
complains. For that reason, we agree with the result reached by the Court
of Appeals that the remaining portions of the videotapes were properly
excluded. Cf. Evans, 643 N.E.2d at 881 (Evidence introduced under rule of
completeness is “subject to the general rules of admissibility, . . . and
any portions found immaterial, irrelevant, or prejudicial must be
redacted.”).
Conclusion
We conclude that any mode of conveying information, including
videotapes, falls within the scope of Indiana Rule of Evidence 106 and the
doctrine of completeness, but on the facts presented here the trial court
did not commit reversible error in denying DesJardins’ request to play the
videotapes in their entirety. On all other issues, the Court of Appeals is
summarily affirmed. Ind. Appellate Rule 58(A)(2). The judgment of the
trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] That list includes “letters, words, sounds, or numbers, or their
equivalent, set down by handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic recording, or
other form of data compilation.” Ind. Evidence Rule 1001(1).
[2] It is also worth noting that the language “writing or recorded
statement,” as used in Rule 106, is not the same as the specifically
defined term “writings and recordings” used in Rule 1001(1).