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COA answers first impression issue on custodial statements

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A defendant convicted of a burglary in St. Joseph County challenged the admission of his prior statement to police while in custody, arguing the statement couldn’t be allowed at his trial because a recorded version of the statement wasn’t available at trial as required by Indiana Evidence Rule 617.

New Evidence Rule 617 says 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 … .”

When Tyrell Cutler took the stand in his own defense, the prosecutor sought to confront him with the statement he gave to police denying knowing the victim, where she lived, and that he couldn’t explain how his DNA ended up in her home. Cutler’s attorney objected because he hadn’t received an electronic recording of the interview, only the written police report describing it. The prosecution only had the written report. Both thought there was no recording of the interview.

But it turns out the police did make a recording of the interview. That led the trial court to overrule Cutler’s objection because even a statement taken in violation of Miranda v. Arizona may be used against a testifying defendant, a principle recognized by the Indiana Supreme Court.

The Court of Appeals agreed in Tyrell Cutler v. State of Indiana, 71A05-1206-CR-339, with Senior Judge Randall T. Shepard noting that it appears there haven’t been any appellate decisions elsewhere in the country on this issue raised by Cutler.

“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,” he wrote. “Still, it is difficult to see defense counsel’s failure to make such a request as constituting waiver.”

The judges also found there was sufficient evidence to convict Cutler of the burglary.

 

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  1. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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