ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK R. RAGAINS JEFFREY A. MODISETT
Smith, Ragains & Cotton Attorney General of Indiana
STEPHEN K. TESMER
Deputy Attorney General
SUPREME COURT OF INDIANA
ELLIS THOMAS, )
) Supreme Court Cause Number
v. ) 48S00-9802-CR-81
STATE OF INDIANA, )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9401-CF-017
ON DIRECT APPEAL
September 6, 2000
A jury convicted Ellis Thomas of murder, attempted murder, attempted robbery, and attempted
carjacking. The trial court sentenced him to 110 years imprisonment. In
this direct appeal, Thomas contends the trial court erred in introducing into evidence
a letter Thomas authored and a telephone conversation recorded between Thomas and another
person. We affirm.
In the early morning hours of October 3, 1993, Marvin McCloud and Damon
Nunn were seated in McClouds car in the parking lot of an after-hours
night club. Thomas, along with his brother Walter Goudy, a cousin Lamont
Thomas, and an acquaintance Kaidi Harvell, saw McClouds car and devised a plan
to take the rims and tires. As McCloud began to drive away,
two gunmen approached the car with handguns drawn and began firing. McCloud died
as a result of a gunshot wound to the chest. Nunn survived
the fusillade although he was severely injured by five gunshot wounds to the
face, chest, and leg. All four men were charged in the shootings.
Under terms of an agreement, Harvell pleaded guilty to assisting a criminal.
He testified at trial that Thomas and Goudy were the shooters.
At a separate trial, in which Harvell also testified, Goudy was convicted of
murder, attempted murder, attempted robbery, and attempted carjacking. See Goudy v. State,
689 N.E.2d 686 (Ind. 1997).
While Goudys case was pending, Thomas wrote a letter to the presiding judge
claiming that he, and not Goudy, was responsible for shooting McCloud and Nunn.
In fact, Thomas claimed that he and Harvell were the shooters.
Thomas also telephoned Goudys attorney making the same representation. The conversation was
recorded. Over Thomas objection at trial, the State introduced into evidence both
the letter and the recorded conversation. Ultimately the jury returned a verdict
of guilty as charged, and the trial court sentenced Thomas to 110 years
in prison. This appeal followed. Additional facts are set forth below
Thomas contends the trial court erred in admitting the letter and recorded conversation
into evidence. He argues the State failed to lay a proper foundation
for either exhibit. The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims. Ind. Evidence Rule
901(a). When evidence establishes a reasonable probability that an item is what
it is claimed to be, the item is admissible. Lockhart v. State,
671 N.E.2d 893, 901 (Ind. Ct. App. 1996). When a trial court
has made a ruling concerning the sufficiency of the foundation laid to justify
the admission of evidence, we review that decision for an abuse of discretion.
State v. Walton, 715 N.E.2d 824, 828 (Ind. 1999).
I. Admission of the letter
The record shows the envelope in which the letter was contained bears a
postmark from Flagstaff, Arizona with a return address for Mr. Ellis Thomas 112188
Arizona State Prison, Winslow. R. at 1077. Although the postmark date
on the envelope is unclear, the heading of the letter bears a date
of 12/06/95. R. at 1074. At the time the letter was
written, Thomas was incarcerated in the Arizona State Prison located in Winslow, Arizona.
The record also shows that detectives Randy Tracy and Stan Young of
the Anderson Police Department traveled to Arizona and interviewed Thomas while he was
incarcerated. The letter makes reference to the Tracy/Young interview. It also
identified a person by the name of Kaidi as being involved with Thomas
in the shootings. Before the letter was admitted as evidence, Kaidi Harvell
testified that he was in fact present when McCloud and Nunn were shot,
and that Thomas was on the passenger side of McClouds car during the
shooting. Although Harvells testimony regarding his own involvement in the crime differs from
that described in the letter, Harvells testimony nevertheless showed that the person who
authored the letter had knowledge about the events of the crime that were
not likely known by anyone in the Arizona State Prison other than Thomas.
Finally, the record reveals that as the letter requested, Thomas was transported
from Arizona to Indiana to testify at his brothers trial. We conclude
there was sufficient evidence to support a finding that Thomas authored the letter.
Thus, the State laid an adequate foundation to meet the requirements for
authentication. The trial court did not abuse its discretion by admitting the
letter into evidence.
II. Admission of the recorded telephone message
The record shows that in July 1995 someone placed a call to the
office of Goudys trial attorney. The caller identified himself as Ellis Thomas,
Jr. and said he was calling from Arizona. Although the details are
not contained in the record, the call was prearranged, and the caller agreed
that it should be recorded. The investigator hired by Goudys attorney was
present and questioned the caller. Through a series of questions and answers
the caller gave a detailed forty-five minute statement concerning the events leading up
to, during, and after the shooting. As with the letter, the caller
made reference to the Tracy/Young interview and talked about his and Kaidis involvement
in the shooting. At a pre-trial hearing on a motion to dismiss
the charging information, Thomas conceded that it was his voice on the recorded
See footnote Admitting the recording into evidence at trial, the trial court
ruled the recording had been properly authenticated in part because of Thomas pre-trial
As a general rule a defendants pre-trial testimony can be used against him
Johnston v. State, 517 N.E.2d 397, 401 (Ind. 1988).
However, exceptions to this general rule have been established when a defendant raises
questions involving his rights in pre-trial matters. Id. For example, testimony
at a hearing on a motion to suppress is not admissible at trial
as evidence of the defendants guilt. Livingston v. State, 542 N.E.2d 192,
194 (Ind. 1989). In like fashion, evidence that the defendant entered a
plea agreement and withdrew it prior to trial is inadmissible at trial on
the charge. Cambridge v. State, 428 N.E.2d 1252, 1254 (Ind. 1981).
The exceptions were created to prevent the accused from being placed in a
position of having to sacrifice one right for another. As the United
States Supreme Court long ago observed, [W]e find it intolerable that one constitutional
right [under the Fifth Amendment] should have to be surrendered in order to
assert another [under the Fourth Amendment]. Simmons v. United States, 390 U.S.
377, 394 (1968) (ruling defendants are protected against use of substantive evidence of
their testimony offered in support of a motion to suppress evidence). In
this case, the trial courts reliance on Thomas pre-trial admission that the voice
on the recording was his own was improper for purposes of authenticating the
recording. Not only was Thomas asserting a statutory right, see supra note
1, but also the record shows that Thomas made the pre-trial admission upon
cross-examination by the State. R. at 1083.
Nonetheless, the trial court did not err in admitting the recording into evidence.
A caller's identity can be established by circumstantial evidence and need not
be proven beyond a reasonable doubt. Young v. State, 696 N.E.2d 386,
389 (Ind. 1998); King v. State, 560 N.E.2d 491, 494-95 (Ind. 1990).
As we have already indicated, when evidence establishes a reasonable probability that an
item is what it is claimed to be, the item is admissible.
Lockhart, 671 N.E.2d at 901. Independent of Thomas pre-trial admission, the circumstantial
evidence recounted above was sufficient to authenticate the recording.
We affirm the trial courts judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.
Thomas was actually challenging the propriety of the State filing charges
against him when he returned to Indiana to testify on behalf of his
Indiana Code § 35-37-5-8 provides,
If a person comes into this state in obedience to a subpoena directing
him to attend and testify in a criminal prosecution in this or any
other state, he shall not while in this state pursuant to such subpoena
be subject to arrest or the service of process, civil, or criminal, in
connection with matters which arose before his entrance into this state under subpoena
Thomas pursed an interlocutory appeal challenging the denial of his motion to dismiss.
The Court of Appeals affirmed in a Memorandum Decision. Thomas v.
State, No. 48A02-9604-CR-193 (Ind. Ct. App. Dec. 16, 1996). The issues raised in
that appeal are not before us here.