Attorney for Appellant
Lesa Lux Johnson
Indianapolis, IN
Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Eileen Euzen
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
MARK COLEMAN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 49S00-0002-CR-59
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)
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)
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robyn Moberly, Judge
Cause No. 49G02-9702-CF-025496
ON DIRECT APPEAL
July 5, 2001
SULLIVAN, Justice.
Defendant Mark Coleman was convicted of murder for killing another man
with a sawed-off shotgun. He argues that (1) his non-custodial, taped-
recorded confession was improperly admitted, and (2) prosecutorial
misconduct occurred at trial resulting in unfair prejudice. Given
overwhelming independent evidence of guilt, we find any error in either
respect to have been harmless and affirm.
Background
The facts most favorable to the judgment show that in the early
morning hours on January 25, 1997, Defendant Mark Coleman and Mark Burris
were in an alley behind an apartment building. Valerie Lomax, a resident
of the building, saw Burris hand over a sawed-off shotgun to Defendant.
Lomax went back inside her home, and shortly thereafter, she heard “a man
pleading for his life” and then heard a gunshot. Later that morning,
police officers arrived at the scene and identified the victim as Joseph
Hughes. Hughes had died from a close range shotgun wound to the chest.
Lomax’s neighbor, Samella King, recalled that just before the gunshot,
she heard three voices — two of which she recognized as those of Defendant
and Mark Burris. King testified that a few days after the murder,
Defendant said to her, “I know you know I’m the one that either shot or
killed the guy on the side of your house.” (R. at 262.)
Charlene Whitlock, a friend of Defendant’s, contacted police
authorities concerning the murder. Whitlock agreed to work as a
confidential informant in exchange for leniency of her pending theft
charges. On February 12, 1997, police officers equipped Whitlock with a
wire and placed a tape recorder under the seat of her car. Shortly
thereafter, Whitlock and her husband, Floyd Whitlock (“Eddie”), picked up
Defendant. They pooled their money together and Defendant bought a rock of
crack. During the taped conversation, they smoked a small amount of crack
and got “high.” Defendant confessed that he had shot Hughes in the chest
with a shotgun. He also admitted that after he “blasted” Hughes, he “beat
the shit out him.” (R. at 334, 338.) The taped conversation in the car
was monitored by Detective Marcus Kennedy and intelligence officers. At
what would be Defendant’s second trial, the tape was played for the jury
over Defendant’s objection.
The State charged Defendant with Murder[1] (Count I), Felony Murder[2]
(Count II), and Robbery[3] (Count III). A jury acquitted Defendant on the
charges of felony murder and robbery, but was unable to reach a verdict on
the murder charge. After a second trial, a different jury convicted
Defendant of murder. The trial court then sentenced Defendant to 60 years
in prison.
We will recite additional facts as necessary.
Discussion
I
Defendant contends that the trial court erred when it admitted the
taped-recorded conversation between Charlene Whitlock, her husband, and
him.
During the trial but outside the presence of the jury, the State
sought to introduce the taped conversation in which Defendant admitted to
killing Joseph Hughes. Defendant objected to its admission only on the
basis that the recording was of poor quality and would confuse the jury.
The court listened to the audiotape to determine its clarity and found it
sufficiently intelligible. The court summarized its findings as follows:
[T]he beginning portion of the tape is unintelligible, except for it’s
clear to me from the portions I can get, that it’s really about the
set up of the wire and . . . matters that [were not] directly
pertinent to [the day of the murder]. . . . The portion which is
pertinent to this case is of sufficient quality to be heard and
understood by the trier of fact. I don’t think the rest of the tape
is such that would lead the jury to speculate as to what is being
said. . . . The Court finds that that’s not unintelligible.
(R. at 287.)
The trial court made no findings as to the voluntariness of Defendant’s
confession. The court allowed the entire audiotape to be played before the
jury over Defendant’s standing objection.
Defendant argues that the trial court erred in finding that the tape
was intelligible and thus, it should have been excluded. To properly admit
a tape recording made in a non-custodial setting, the following
foundational requirements must be established: (1) the recording must be
authentic and correct; (2) the testimony elicited must have been freely and
voluntarily made; (3) the recording must not contain matter otherwise not
admissible into evidence; and (4) the recording must be of such clarity as
to be intelligible and enlightening to the jury. See Lehman v. State, 730
N.E.2d 701, 703 (Ind. 2000); McCollum v. State, 582 N.E.2d 804, 811 (Ind.
1991), reh’g denied; cf. Freeman v. State, 541 N.E.2d 533, 538 (Ind. 1989).
It is within the trial court’s discretion to determine whether such
recordings meet these criteria. See Lehman, 730 N.E.2d at 703.
Our independent review of the audiotape leads us to conclude that the
trial court did not abuse its discretion in allowing the tape into
evidence. As we stated recently, “The standard of quality expected of a
recording in an interrogation room cannot be used to judge a recording of a
person wearing a wire transmitter.” See Kidd v. State, 738 N.E.2d 1039,
1042 (Ind. 2000) (citing Fassoth v. State, 525 N.E.2d 318, 324 (Ind.
1988)), reh’g denied. This principle applies here. At the beginning of the
tape, there is background noise, the voices are mumbled, and there is the
sounding of a car door slamming. Thus, we agree with the trial court’s
finding that the beginning of the tape is unintelligible. But the trial
court gave Defendant the option to leave out this portion of the tape. In
response, Defendant nevertheless said, “the entire tape should be played.”
After listening to the remaining tape, it is sufficiently clear that
Defendant was confessing to committing murder. We find no error.
Defendant makes an additional argument on appeal supporting his claim
that the tape should have been excluded. He argues that his recorded
statements were made involuntarily because he was under the influence of
crack cocaine during the conversation. Defendant further maintains that
the informant “had gotten permission and talked with police about using
drugs,” thus the officers knew that the informant intended to smoke cocaine
with him during the taped conversation. [4] Appellant’s Br. at 5 (citing
R. at 319.) As such, Defendant’s argues, his recorded murder confession
was a product of improper influence of crack cocaine induced by police
officers and should have therefore been excluded.
As the State points out, Defendant has failed to preserve this issue
for review. When cross-examining Detective Marcus Kennedy, Defendant did
allude to the fact that confessions given under the influence of drugs or
alcohol have been found to be inadmissible. However, Defendant made no
objection to the effect that his consumption of cocaine rendered his
statements involuntary or that the police used improper tactics to obtain a
confession. Rather, his only objection at trial was that the tape was
unintelligible. A defendant cannot argue one ground when objecting to the
admissibility of a confession at trial and then argue another ground on
appeal. See Carroll v. State, 438 N.E.2d 745, 748 (Ind. 1982). Defendant
has waived this argument for appellate review.
In any event, if there was error in admitting the taped confession, it
was harmless beyond a reasonable doubt because there was overwhelming
independent evidence that Defendant was the perpetrator who killed Hughes.
A wrongful introduction of an involuntary confession is subject to a
constitutional harmless error analysis. See Arizona v. Fulminante, 499
U.S. 279, 296, 306-12 (1991). Under the harmless error analysis, this
Court must determine whether the State has “met its burden of demonstrating
that the admission of the confession ... did not contribute to [the
defendant’s] conviction.” Id. The content of the taped conversation was
merely cumulative of Whitlock’s trial testimony regarding Defendant’s
admission to committing the murder. According to Whitlock’s testimony, she
and Defendant talked shortly after the murder occurred. During this non-
recorded conversation, Defendant admitted to killing Hughes and to
discarding the murder weapon. Whitlock testified further that Defendant
also expressed fear that Samella King saw him outside her apartment and
that she would be able to identify him. This first conversation between
Whitlock and Defendant was not taped and Defendant made no objection to
this trial testimony. In addition, Whitlock’s trial testimony also
corroborated the testimony of Samella King and Victoria Lomax concerning
the circumstances surrounding the murder. King testified that just before
the gunshot, she heard three voices — two of which she recognized as those
of Defendant and Mark Burris. King also testified that a few days after
the murder, Defendant admitted to her, “I know you know I’m the one that
either shot or killed the guy on the side of your house.” (R. at 262.)
Further, Lomax testified that she saw Burris hand over a sawed-off shotgun
to Defendant just minutes before she heard a gunshot. According to Lomax’s
testimony, she went back inside her home, and shortly thereafter, she heard
“a man pleading for his life” and then heard a gunshot. (R. at 198.)
The State presented other evidence that Defendant committed the
killing aside from the taped confession. As such, we conclude that the
State demonstrated that the admission of the taped confession did not
contribute to Defendant’s conviction. See Fassoth v. State, 525 N.E.2d at
324 (finding no reversible error where the content of a taped recorded
conversation was merely cumulative of the informant’s trial testimony);
Roller v. State, 602 N.E.2d 165, 171 (Ind. Ct. App. 1992) (holding that the
trial court’s admission of an unintelligible audio-tape was harmless error
where other evidence corroborated the informant’s testimony), transfer
denied.
II
Defendant contends that the trial court committed reversible error
when it denied his motion for a mistrial. He claims that the prosecutor
twice committed misconduct during closing argument, which “had a probable
persuasive effect on the jury’s decision.” Appellant’s Br. at 6.
In reviewing a claim of prosecutorial misconduct, we determine (1)
whether the prosecutor engaged in misconduct, and if so, (2) whether that
misconduct, under all of the circumstances, placed the defendant in a
position of grave peril to which he or she should not have been subjected.
See Wisehart v. State, 693 N.E.2d 23, 57 (Ind. 1998), cert. denied, 526
U.S. 1040 (1999); Wright v. State, 690 N.E.2d 1098, 1110 (Ind. 1997), reh’g
denied. The “gravity of peril” is measured by the “‘probable persuasive
effect of the misconduct on the jury’s decision, not on the degree of
impropriety of the conduct.’” Wisehart, 693 N.E.2d at 57 (quoting Kent v.
State, 675 N.E.2d 332, 335 (Ind. 1996) (citing in turn Bradley v. State,
649 N.E.2d 100, 107-8 (Ind. 1995), reh’g denied.)). The denial of a
mistrial lies within the sound discretion of the trial court, and will be
reversed only upon a finding of an abuse of discretion. See Canaan v.
State, 541 N.E.2d 894, 908 (Ind. 1989), cert. denied, 498 U.S. 882, 185
(1990).
In this case, during the prosecuting attorney’s closing argument, the
following colloquy ensued:
Prosecutor: . . . [A]s you look at the transcript, the
Defendant talks about a lot of other things that gives you
an idea of what kind of person the Defendant is, up through
the first eight pages.
Defendant: Your Honor, I object. Move to strike, and I ask the court
to admonish the prosecutor for making references in his
closing argument to ‘what kind of person the Defendant is.’
That’s highly inappropriate. He’s asking this jury to
convict him based on character, instead of based on the
evidence. I strenuously object to that.
Court: Okay, I’ll grant the objection. We’ll strike
characterization, or the reference to the Defendant’s
nature. . . .
Prosecutor: What else are we to draw from the conclusion, ‘that’s when
I told her I’d break her motherfucking jaw.’ This is the
kind of person we’re talking about. . . .
Defendant: Your Honor, I object to him saying ‘This is the kind of
person that we’re talking about.’ That . . . I want to
approach the bench, if I may.
(R. at 484-85) (emphases added) (quotations in original).
Outside the jury’s presence, the court and counsel from both sides
engaged in a discussion during which Defendant moved for a mistrial on
grounds that the prosecutor repeatedly referred to his character despite
his sustained objection. The court denied Defendant’s request for a
mistrial. The court found that the prosecutor’s remark was an
“inconsequential remark” and that it was “fair to comment on [Defendant’s]
demeanor in the tape.” (R. at 487.) Defendant declined the court’s offer
to admonish the jury.
Defendant argues on appeal that it was improper for the prosecutor to
comment on his character because he neither testified nor submitted any
character evidence. Defendant claims that the prosecutor’s remarks
“clearly indicated to the jury that [he] was violent and a batterer and
thus was more likely to have committed murder because he was bad person.”
Appellant’s Br. at 12.
“‘It is misconduct for a prosecutor to request the jury to convict a
defendant for any reason other than his guilt.’” Wisehart, 693 N.E.2d at
59 (quoting Maldonano v. State, 265 Ind. 492, 500, 355 N.E.2d 843, 849
(1976)). However, as we found in Part I, supra, any error in this regard
was harmless because there was overwhelming independent evidence of
Defendant’s guilt.
Conclusion
We affirm the trial court’s judgment.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1(1) (1993).
[2] Id. § 35-42-1-1(2).
[3] Id. § 35-42-5-1.
[4] The facts are in dispute as to police involvement concerning the
use of drugs during the recorded confession. Whitlock, the confidential
informant, testified that while the police equipped her with a wire, she
obtained police permission to smoke cocaine during the recorded
conversation. Thus, according to Whitlock, the police authorities were
fully aware of her intentions to smoke crack while trying to get him to
confess to the killing. On the other hand, Detective Kennedy denied having
knowledge that there was prior police approval for drug use. Kennedy
testified that he was not present at the time the officers equipped
Whitlock with the wire and that he did not see anyone purchase drugs during
the conversation.