ILNews

Inadmissible evidence leads to new trial

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals today reversed and remanded for a new trial a case in which a defendant was convicted of fraud on a financial institution and identity deception based on documents that should not have been admitted as evidence.

In William J. Speybroeck v. State of Indiana, 20A05-0701-CR-40, Speybroeck appealed his conviction, arguing the state did not properly authenticate business documents pursuant to Indiana Evidence Rule 902(9) and that the trial court abused its discretion by admitting documents into evidence under Indiana Evidence Rule 803(6), the business records exception to the hearsay rule. Speybroeck also appealed whether a retrial is appropriate.

Speybroeck purchased a Kawasaki motorcycle from Maple City Cycle by opening a credit card through the business using the Social Security number and date of birth of his father, Robert, without Robert's permission. William also purchased parts for the motorcycle with the Kawasaki credit card; he never made any payments on the card.

Robert learned that William used his personal information to open an account in his name through HSBC bank and authorized police to investigate William. In October 2004, the state charged William with fraud on a financial institution and identity deception.

Before the jury trial began, William objected to the admissibility of the state's Exhibit 11, which included a notarized affidavit signed Oct. 23, 2006, by a bank employee and numerous documents from Kawasaki. William argued the affidavit wasn't authentic because it didn't indicate how many pages were attached nor did it identify what documents it was authenticating. Computer printouts included in Exhibit 11 were dated a day after the affidavit.

Williams also argued the Kawasaki documents, which included invoices and credit slips used by William, could not be admitted because the affidavit couldn't authenticate how Maple City and Kawasaki conducted its businesses nor could they be admitted because HSBC didn't create them in the ordinary course of its business.

The trial court overruled William's objection and admitted Exhibit 11 into evidence. William was found guilty and sentenced to an aggregate term of 16 years with six years suspended.

The court agreed the affidavit from HSBC bank does not authenticate the attached documents because it never specified which documents it purports to authenticate and it lacks a specific number of pages of documents. The affidavit lacks trustworthiness and does not comply with Rule 902(9) and all non-authenticated documents must be excluded from Exhibit 11, wrote Judge Edward Najam.

HSBC's submission of Kawasaki letters and documents are also not covered by the affidavit because the person recording the documents must do so in the regular course of business and have personal knowledge of the information. None of the Kawasaki documents satisfy Rule 803(6)'s requirements of reliability. Someone at HSBC was required to have personal knowledge of the information contained in the Kawasaki documents.

Because Exhibit 11 should not have been admitted into trial, William's convictions must be reversed, wrote Judge Najam. The state repeatedly used Exhibit 11, so it had to have impacted the judgment. The court remanded for a new trial and cited Ground v. State (Ind. Ct. App. 1998) and Stahl v. State (Ind. 1997).
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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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