ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bernard G. Reisz Jeffrey A. Modisett
Evansville, IN Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
INDIANA SUPREME COURT
JASON MATTHEW LEHMAN, )
v. ) 82S00-9904-CR-268
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert J. Pigman, Judge
Cause No. 82D02-9809-CF-675
On Direct Appeal
June 28, 2000
The defendant-appellant, Jason Matthew Lehman, appeals his conviction for the 1998 murder
See footnote of
Judith Ann Cain. Finding no error in the trial court's admission and
use of the defendant's recorded statements or in its refusal to instruct on
aggravated battery as a lesser-included offense, we affirm.
Admission and Use of Recorded Statements
The defendant alleges error in the admission and use of his recorded statements
about the crime.
Several weeks after the murder, after an evening of drinking, the defendant showed
his friend, William Boles, III, the victim's body in a cornfield. The
defendant told Boles that he had killed her during a sexual encounter and
put her body in the cornfield. After seeing the body, Boles told
others and, eventually, based upon Boles's stories, a volunteer firefighter found the body
and notified the police. Shortly afterward, Boles was taken into police custody
for questioning as a suspect in the murder. He denied involvement in
the murder but told the police that the defendant had shown him the
body and stated that he had killed the woman. Boles agreed to
assist the police by taping his conversations with the defendant. During the
recorded conversation, Boles discussed his apprehension that someone might have seen his car
the night the defendant showed him the body, his recurring images of the
partially skeletonized remains that were disturbing his sleep, and recent media reports of
the discovery of the body. Throughout the tape, the defendant assured Boles
that everything would be fine, that he had covered his tracks well, and
that the police would never find out that he killed her. In
response to some of Boles's questions, the defendant acknowledged that he broke the
victim's neck, that he dumped her in a cornfield, and that he did
not worry at all because he was "blessed with no conscience." Record
at 172 (Ex. 11-A at 16). It is this conversation that the
defendant claims was erroneously admitted.
The defendant argues that he was never warned or asked to sign a
waiver before making the statements and that he did not know they would
be used against him. However, the State is not required to warn
a person not in custody that his voluntary comments may be used against
him, even if the comments are made to a police informant. See
Scott v. State, 510 N.E.2d 170, 173 (Ind. 1987); Lawhorn v. State, 452
N.E.2d 915, 918 (Ind. 1983); Adams v. State, 270 Ind. 406, 411, 386
N.E.2d 657, 661 (1979). The foundational requirements for admission of a taped
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. The defendant does not challenge admission
based upon any of these elements. The trial court did not abuse
its discretion in admitting the recordings of the defendant's non-custodial confession to his
The defendant also contends that the trial court erred in allowing the jury
to read copies of a printed transcript of the recorded conversation while the
tape was played. The defendant argues that the transcript violates the best
evidence rule, was not authenticated, and was offered to arouse unfairly the jury's
emotions because the jury could "see the printed words, while simultaneously hearing the
graphic descriptions" of the events surrounding the murder. Brief of Defendant-Appellant at
10. At trial, however, the defendant did not object on any of
these grounds. Rather, his objection was based upon "the rule prohibiting duplication
of copies." Record at 169. When, as in this case, a
defendant presents one argument at trial and a different argument on appeal, the
claims are forfeited. Marshall v. State, 621 N.E.2d 308, 314 (Ind. 1993);
Chandler v. State, 581 N.E.2d 1233, 1237 (Ind. 1991).
We find no error in the admission and use of the defendant's recorded
statements or the transcript.
Refused Jury Instruction
The defendant claims the trial court erred in refusing to give his tendered
jury instruction on aggravated battery. The defendant acknowledges that the trial court
gave instructions on manslaughter, voluntary manslaughter, involuntary manslaughter, and reckless homicide, but claims
an instruction on aggravated battery was also warranted.
When a defendant requests an instruction covering a lesser-included offense, a trial court
applies the three-part analysis set forth in Wright v. State, 658 N.E.2d 563,
566-67 (Ind. 1995). The first two parts require the trial court to
determine whether the offense is either inherently or factually included in the charged
offense. Id. If so, the trial court must determine whether there
is a serious evidentiary dispute regarding any element that distinguishes the two offenses.
Id. at 567. See also Brown v. State, 703 N.E.2d 1010,
1019 (Ind. 1998). If, in light of such a dispute, "'a jury
could conclude that the lesser offense was committed but not the greater, then
it is reversible error for a trial court not to give an instruction,
when requested, on the inherently or factually lesser included offense.'" Brown, 703
N.E.2d at 1019 (quoting Wright, 658 N.E.2d at 567). Where, as here,
a defendant does not direct the trial court's attention to a specific evidentiary
dispute, we review the trial court's ruling for abuse of discretion. Brown,
703 N.E.2d at 1019-20.
The defendant was charged with murder by knowingly killing the victim. His
appellate brief argues that aggravated battery is inherently included in the murder charge,
but he does not identify or allege any serious evidentiary dispute from which
the jury might have determined that aggravated battery was committed, but that a
knowing killing was not. A person knowingly kills when he is aware
of a high probability that he is engaged in killing. Heavrin v.
State, 675 N.E.2d 1075, 1079 (Ind. 1996). The offense of aggravated battery
consists of the knowing or intentional infliction of injury on a person that
creates a substantial risk of death or causes serious permanent disfigurement or protracted
loss or impairment of the function of a bodily member or organ.
Ind. Code § 35-42-2-1.5. Thus, an instruction on aggravated battery would not
be warranted if there was no serious evidentiary dispute that the defendant was
aware of a high probability that he was engaged in killing.
The evidence shows that the defendant paid the victim $50 for oral sex
and that, during this activity, the victim bit the defendant. He grabbed
her by the neck and administered a choke hold or a "sleeper hold"
that he claimed he had learned either in the military or from watching
professional wrestling, causing her to lose consciousness. Record at 319-20. According
to the defendant, this hold is used to cut off the victim's airway.
When the victim regained consciousness, she began to scream and tried to
get out of the car. He administered the choke hold again to
her throat, cutting off her airway, until she lost consciousness again. At
least one more time, she awoke and tried to call for help and
get out of the car. Finally, the defendant choked the victim and
then punched the front of her neck, breaking her neck. The defendant
then told his cousin, who was in the car during the encounter, that
he thought he had killed her. The defendant and his cousin retrieved
the $50 from the victim's pocket, hid her body in a cornfield, and
disposed of part of her clothing.
At some point after the victim's death, the defendant told his friend, William
Boles, that he snapped the victim's neck. Record at 172 (Ex. 11-A
at 16), 309-10. In his statement to police and in his testimony
at trial, the defendant said he choked the victim. Record at 68,
75. The defendant testified at trial that he intended only to cause
the victim to lose consciousness and claimed that he did not know the
sleeper hold could kill the victim, but thought it would only cause unconsciousness.
But he also stated that he could understand killing someone "if you
choked them or if, you know, . . . did the twist or
whatever to them, but a sleeper hold is not going to kill [anybody]."
Record at 320.
From this evidence, we conclude that the trial court did not abuse its
discretion in concluding that there was no serious evidentiary dispute upon which the
jury could have concluded that the defendant committed an aggravated battery but not
a knowing killing. We find no error on this issue.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1.