Kidd v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

J. MICHAEL TRUEBLOOD KAREN M. FREEMAN-WILSON
Trueblood & Graham, P.C. Attorney General of Indiana
Lafayette, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

DONTE KIDD, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 79S00-9911-CR-640
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT 2
The Honorable George Heid, Judge
Cause No. 79D02-9903-CF-32

ON DIRECT APPEAL

November 16, 2000

RUCKER, Justice

A jury convicted Donte Kidd of dealing in cocaine as a Class A
felony, conspiracy to deal in cocaine as a Class A felony, and possession
of cocaine as a Class B felony. The jury also adjudged Kidd a habitual
offender. The trial court sentenced Kidd to concurrent forty-year terms
for dealing and conspiracy and enhanced the dealing charge by thirty years
for the habitual offender adjudication. The trial court entered no
sentence on the possession charge. In this direct appeal Kidd raises four
issues for our review which we rephrase as follows: (1) did the trial
court err in finding good cause to excuse the late filing of the habitual
offender charge; (2) did the trial court err in admitting into evidence an
audio-taped recording of Kidd’s drug transaction; (3) did the trial court
err in admitting the deposition testimony of two State witnesses in lieu of
live testimony; and (4) did the trial court err in admitting records of
Kidd’s prior convictions during the habitual offender phase of the trial?
Finding no error, we affirm.

Facts

The record shows that a confidential informant (C.I.) worked with
Indiana State Police in making a controlled drug buy. On January 12, 1999,
police searched the C.I., fitted him with a body wire transmitter, and gave
him five twenty-dollar bills. The C.I. first called Will Thomas in an
attempt to set up a drug deal. The C.I. then met Thomas and the pair drove
to a location near a school where Kidd joined them. Kidd got into the car
and instructed the C.I. to drive to a nearby house. The C.I. gave Kidd one
hundred dollars whereupon Kidd exited the car, entered the house, and
returned shortly thereafter. Kidd then handed the C.I. a white chalky
substance later identified as cocaine. The State charged Kidd with dealing
in cocaine, conspiracy to deal in cocaine, and possession of cocaine. The
State also alleged that Kidd was a habitual offender. After a jury trial,
Kidd was convicted as charged and also adjudged a habitual offender. The
trial court sentenced Kidd to concurrent forty-year terms for dealing and
conspiracy and enhanced the dealing charge by thirty years for the habitual
offender adjudication. The trial court entered no sentence on the
possession charge, merging it instead with Kidd’s conviction for dealing.
This appeal followed. Additional facts are set forth below.

Discussion

I.

Under Indiana Code § 35-34-1-5(e) an amendment of an indictment or
information to include a habitual offender charge “must be made not later
than ten (10) days after the omnibus date.” However the trial court may
permit the filing of a habitual offender charge at any time before trial
begins provided the State shows good cause. Ind. Code § 35-34-1-5(e). In
this case, the State filed the habitual offender charge on July 8, 1999,
forty-nine days after the omnibus date and twenty days before the scheduled
trial date. Kidd contends that the trial court erred in permitting the
State to file an information charging him as a habitual offender because it
was untimely filed and there was no showing of good cause. Kidd also
complains that he was not adequately prepared for the additional witnesses
the State proposed to call during the habitual offender phase of trial.
Kidd did not move for a continuance, but citing Atterbury v. State, 703
N.E.2d 175 (Ind. Ct. App. 1998), he argues that he should not be forced to
forfeit his right to a speedy trial in order to meet the State’s untimely
filing.
In the recent decision of Williams v. State, 735 N.E.2d 785 (Ind. 2000),
this Court disapproved of Atterbury reiterating the rule “that once a trial
court permits a tardy habitual filing, an appellant must move for a
continuance in order to preserve the propriety of the trial court’s order
for appeal.” Id. at 789 (citing Daniel v. State, 526 N.E.2d 1157, 1162
(Ind. 1988); Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996)). There
is no exception to this rule even where a defendant has asked for a speedy
trial. Haymaker, 667 N.E.2d at 1114. If the defendant indeed needs
additional preparation time, then he may seek a continuance of the habitual
offender phase of the proceedings without affecting his rights to a speedy
trial on the main charge. Williams, 735 N.E.2d at 789. Because Kidd did
not move for a continuance, this issue is waived for review.

II.

Kidd next contends the trial court erred in admitting into evidence
an audio recording of his alleged drug transaction because it lacked
sufficient clarity. The foundational requirements for the admission of a
tape recording made in a non-custodial setting are: (1) that the recording
is authentic and correct; (2) that it does not contain evidence otherwise
inadmissible; and (3) that it be of such clarity as to be intelligible and
enlightening to the jury. McCollum v. State, 582 N.E.2d 804, 811-12 (Ind.
1991). The trial court has wide discretion in determining whether these
criteria have been met. Id. at 812.
After listening to the tape, we have concluded that the trial court
did not abuse its discretion in admitting the recording into evidence.
Although brief portions of the recording are somewhat inaudible due to
static, interference, and background noise, we disagree with Kidd’s
contention that the audiotape is “generally unintelligible.” Brief of
Appellant at 12. As we noted in Fassoth v. State, 525 N.E.2d 318 (Ind.
1988), 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. Id. at 324 (upholding the admission of a non-custodial
recording of a drug transaction and observing “Because of clothing worn
over the microphone and Fassoth’s moving about in and out of the car,
interference and static on the tape were inevitable.”). It is clear from
the recording that the C.I. and Thomas were involved in a drug transaction
with a third person later identified as Kidd. We find no error here.

III.

Kidd complains the trial court erred in admitting the deposition
testimony of two witnesses in lieu of their live testimony at trial. The
facts are these. Indiana State Police Trooper Fred Davis conducted
surveillance of the drug transaction, and Indiana State Police Chemist
Kristen Sturgeon conducted the laboratory testing. Before Kidd had been
charged in this case, both Davis and Sturgeon had made plans to leave
Indiana for vacation: Davis to Canada and Sturgeon to an undisclosed
location. Because the two witnesses would not be present for trial, the
State scheduled their depositions giving notice to Kidd’s trial counsel.
Although Kidd did not attend the depositions, his counsel attended and
vigorously cross-examined both witnesses. At trial, the State argued that
Davis and Sturgeon were unavailable and offered their depositions in lieu
of live testimony. Over Kidd’s objection, the trial court agreed that both
witnesses were unavailable and admitted their deposition testimony under
Indiana Trial Rule 32(A). On appeal, Kidd complains the trial court erred
in so doing
because “going on vacation is not an acceptable circumstance [that] would
justify the use of the deposition in lieu of live testimony.” Brief of
Appellant at 15.[1] Kidd is mistaken.
Under T.R. 32(A)(3)(b) the deposition testimony of an absent witness
is admissible at trial provided the court finds “that the witness is
outside the state, unless it appears that the absence of the witness was
procured by the party offering the deposition.” The admission of
depositions into evidence is within the discretion of the trial court, and
we will reverse the trial court's decision only for an abuse of that
discretion. Smith v. State, 702 N.E.2d 668, 675 (Ind. 1998); see also
Moore v. State, 569 N.E.2d 695, 700 (Ind. Ct. App. 1991) (finding no abuse
of discretion in admitting police officer’s deposition in lieu of live
testimony where officer was out of state on vacation). The record is clear
that both witnesses were outside the state at the time of trial. Further,
Kidd does not contend, nor does the record show, that the State procured
the absence of either witness. We find no abuse of discretion here.

IV.

Kidd lastly alleges that the trial court erred in admitting records
of his prior convictions during the habitual offender phase of the trial
because they were not properly certified. The State introduced three
exhibits detailing Kidd’s convictions and sentences for prior felony
offenses he committed in the State of Washington. Each exhibit consisted
of eleven pages and contained a certification on a final, separate page.
The certifications were that of a deputy clerk of the Washington court in
which Kidd received his
prior convictions. Kidd argues that the single certification found in each
exhibit without reference to the pages being certified is an insufficient
authentication of the multi-paged exhibits. He claims that the exhibits
required “individualized authentication of each page [or] proper reference
to the number of pages being certified so as to make them admissible.”
Brief of Appellant at 17.
The requirement of authentication as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that
the item in question is what its proponent claims. Ind. Evidence Rule
901(a). An item may be authenticated by any method provided by rule of
this Court, statute, or state constitution. Evid. R. 901(b)(10). The seal
of a public officer “having official duties in the district or political
subdivision in which the record is kept” may authenticate an official
record. Hernandez v. State, 716 N.E.2d 948, 951 (Ind. 1999), reh’g denied
(citing Ind. Trial Rule 44(A)(1)). Rule 44 does not mandate that
certification take a particular form. Id. at 951-52.
We recently rejected a nearly identical claim in Hernandez. The
challenged exhibits in that case consisted of a two-page probable cause
affidavit containing a certification stamp and signature of the clerk on
the first page only and a three-page sentencing order containing a
certification stamp and signature of the clerk on the last page only. In
each exhibit, the clerk had left blank a part of the stamp providing for
the total page numbers being certified. Our review of the exhibits
revealed that each one was clearly a complete, individual document. This
led us to conclude that “[t]he certification on a single ‘page’ of either
challenged exhibit provided adequate certification for the entirety of each
exhibit as the
certification placement ‘in no way caus[ed] confusion as to the
authenticity of the paper.’” Id. at 952 (citations omitted).
The same is true here. The three documents at issue are nearly
identical in form but refer to different criminal proceedings. The first
page of each document states the cause number for a particular case with a
caption and summary disposition of the case. Each paragraph thereafter is
sequentially numbered and consists of a series of inquiries.
Additionally, the pages in each exhibit are sequentially numbered at the
bottom. Although the numbering ceases near the end of each exhibit, the
sequentially numbered paragraphs do not. Furthermore, in two of the
exhibits the final page is marked with a cause number identical to that of
the first page, while the other exhibit contains, on the first and last
page, a designation exclusive to that document, “02-93-86733-0.” The trial
court properly admitted the exhibits into evidence. We find no error.

Conclusion

We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

-----------------------
[1] Kidd does not raise a Confrontation Clause violation and thus we
do not address the issue here. See Jackson v. State, 735 N.E.2d 1146, 1151
(Ind. 2000) (observing “Rule 32 (A) is not applicable to claims involving a
violation of a defendant’s Sixth Amendment right of confrontation.”).