ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. MICHAEL TRUEBLOOD KAREN M. FREEMAN-WILSON
Trueblood & Graham, P.C. Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
DONTE KIDD, )
) Supreme Court Cause Number
v. ) 79S00-9911-CR-640
STATE OF INDIANA, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT 2
The Honorable George Heid, Judge
Cause No. 79D02-9903-CF-32
ON DIRECT APPEAL
November 16, 2000
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 Kidds 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 Kidds prior convictions
during the habitual offender phase of the trial? Finding no error, we
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 Kidds conviction for dealing. This appeal followed.
Additional facts are set forth below.
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 States 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 courts 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.
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 Kidds 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 Fassoths 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.
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 Kidds 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
Kidds 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.
See footnote 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 officers
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.
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 Kidds 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), rehg 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.
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
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 defendants Sixth Amendment right of confrontation.).