Cutler v. State, No. 71A05-1206-CR-339, __ N.E.2d __ (Ind. Ct. App., Feb. 21, 2013).

Shepard, Senior Judge

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.

. . .

Cutler’s appeal presents an issue of first impression concerning Indiana’s new rule about the admissibility of custodial statements. The rule provides, in part: “In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial . . . .” Ind. Evidence Rule 617(a).

The applicability of Rule 617 arose at trial not during the State’s case in chief, but rather after Cutler took the witness stand in his own defense. As will be described in more detail later, the thrust of Cutler’s trial testimony was that he had once visited Coleman’s home and thus come to touch various objects, leaving his blood behind. He explained, for example, that he had exited the house as the result of an argument, then forced his way back inside through the kitchen door, cutting himself in the process. “That’s how your blood got there?” asked his lawyer. “Right,” he answered. Tr. p. 75.

In the course of the State’s cross-examination, the prosecutor sought to confront Cutler with the statement he had given in July 2011, during which he denied knowing Coleman, denied knowing where she lived, and said he could not explain how his DNA came to be in the residence. Defense counsel objected, saying that he had not received any electronic recording of the interview, only a written police report describing it, and thought there had not been a recording. Id. at 90.

The trial court invited the jury to depart the courtroom, upon which the judge and counsel examined Rule 617 and other resources such as Robert L. Miller’s Indiana Evidence. Counsel made inquiry of the South Bend Police Department, which promptly reported that there was in fact a recording made of the Cutler interview. The prosecutor appears to have had in his file only the same thing defense counsel had – a written report of the interrogating officer. Tr. pp. 90, 95.

. . . .

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.” Tr. p. 99.

Had the State attempted to use Cutler’s statement from July as substantive evidence, Rule 617 would surely have required the prosecution to produce the recording before evidence of the statement could be admitted. Indeed, it seems that under the spirit of Rule 617, the defense would have been within its rights to insist on hearing the recording before the prosecutor could confront Cutler with his statements, even given the late moment at which counsel and the court became aware of its existence.

. . . .

Thus, on the main point at issue, we conclude that the principle recognized in Page and Harris v. New York applies.  . . .

The court did not err in overruling Cutler’s objection.

FRIEDLANDER, J., and BRADFORD, J., concur.

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