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Thursday, February 21, 2013

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Curtis Tyrell Cutler v. State of Indiana, an 8-page opinion, Sr. Judge Shepard writes:

A few weeks after the effective date of Indiana’s new rule requiring that custodial interrogations be recorded as a condition of admissibility, appellant Curtis Tyrell Cutler broke into Tymesha Coleman’s home and stole her television, her computer, and the like.

The question Cutler’s appeal presents is whether the State may impeach a testifying defendant by using a prior custodial statement that was indeed recorded but was not “available at trial” as required by Evidence Rule 617 because neither defense counsel nor the prosecutor knew of its existence until trial was under way.

We conclude that the trial court did not err in permitting use of the statement for impeachment, and affirm the conviction. * * *

The trial court overruled Cutler’s objection, noting that even a statement taken in violation of Miranda v. Arizona may be used at trial against a testifying defendant. “The theory being,” said the trial judge, “that if a defendant chooses to take the stand he can’t be insulated from his prior statements and that those statements can be used for impeachment purposes only.” Tr. p. 96. The Indiana Supreme Court has recognized this principle, citing the U.S. Supreme Court. Page v. State, 689 N.E.2d 707, 710 (Ind. 1997) (citing Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46, 28 L. Ed. 2d 1, 4-5 (1971)) (“The shield provided by Miranda cannot be perverted into a license to use perjury by way of defense, free from the risk of confrontation with prior inconsistent utterances.”). In accord with these authorities, the trial court promptly instructed the jury that the statements from Cutler’s interrogation could be considered “if at all, solely in evaluating his credibility as a witness.”

NFP civil opinions today (0):

NFP criminal opinions today (2):

Robert A. Carmer v. State of Indiana (NFP)

David Purlee v. State of Indiana (NFP)

Posted by Marcia Oddi on February 21, 2013 11:37 AM
Posted to Ind. App.Ct. Decisions