Michael Francis Corley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 27 2016, 8:03 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amanda O. Blackketter Gregory F. Zoeller Blackketter Law, LLC Attorney General of Indiana Shelbyville, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Francis Corley, May 27, 2016 Appellant-Defendant, Court of Appeals Case No. 73A01-1507-CR-914 v. Appeal from the Shelby Circuit Court State of Indiana, The Honorable Charles D. Appellee-Plaintiff O’Connor, Judge Trial Court Cause No. 73C01-1501-F5-8

Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 1 of 8 [1] Michael F. Corley (“Corley”) was convicted in Shelby Circuit Court of Level 5

felony trafficking with an inmate, Level 5 felony bribery, and Class A

misdemeanor trafficking with an inmate. On appeal, Corley claims that the trial

court abused its discretion by admitting into evidence the recordings of two jail

telephone calls between Corley and two unknown individuals. [2] We affirm.

Facts and Procedural History [3] At the time relevant to this appeal, Jerrica Kirby (“Kirby”) was a jail officer

employed by the Shelby County Sheriff’s Department. As part of her duties as a

jail officer, Kirby transported inmates, checked on inmates, and passed out

food, clothing, and supplies to the inmates. [4] In December 2014, one of the inmates of the Shelby County Jail at the time was

Corley. Corley began to “jokingly” ask Kirby to bring tobacco into the jail for

him. Kirby eventually agreed to bring tobacco into the jail for Corley, knowing

that tobacco was prohibited inside the jail. Kirby and Corley agreed that she

would bring tobacco into the jail and give it to Corley in exchange for money.

To arrange this, Kirby allowed Corley to use her cell phone, even though cell

phones were also banned inside the jail. After Corley contacted his sources

outside the jail using Kirby’s cell phone, Kirby talked with Corley’s long-time

friend, Adam Bennett (“Bennett”) about obtaining the tobacco. Corley told

Kirby that Bennett would provide her with the tobacco and money for her

involvement.

Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 2 of 8 [5] Thereafter, Kirby telephoned Bennett, and the two agreed to meet at a local

drug store parking lot. At the parking lot, Bennett approached Kirby’s car and

handed her $100 and a one-pound bag of pipe tobacco. Kirby later divided the

tobacco into smaller portions and placed these portions inside zip-top sandwich

bags. The next time she went to work, Kirby took the tobacco into the jail and

slid it to Corley under the door to his jail cell while making her rounds. Kirby

repeated her actions at least two more times. [6] Another jail inmate, B.B., noticed that Corley was reselling tobacco in the jail.

Corley falsely told this inmate that he was getting the tobacco through the jail

laundry system. B.B. noticed, however, that Corley and Kirby had several

interactions, with Kirby stopping at the door to Corley’s cell. [7] Shelby County Jail Commander Jerad Sipes (“Sipes”) began to investigate the

presence of tobacco in the jail. Eventually Sipes spoke with B.B., who informed

him of Corley’s interactions with Kirby. Sipes then reviewed jail surveillance

video, which showed Kirby bending down in front of Corley’s cell door. He

also reviewed audio recordings of jail phone calls made by Corley. In one of

these recorded calls, Corley tells the woman to whom he is talking that he

found a “mule” and asks her for $100. Ex. Vol., State’s Ex. 2. He also tells her,

“I need you and Adam to . . . that’s part of the deal,” and “I really need you

guys to come through with something for me.” Id. In another call, he refers to

person on the line as “Adam” and tells him, “I’m gonna try to get that hundred

back to you.” Id., State’s Ex. 4.

Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016 Page 3 of 8 [8] When Kirby was confronted by her superiors, she admitted that she had

trafficked with an inmate. She was then fired and turned over various items in

her possession belonging to the Sheriff’s Department. She also turned over the

bag of tobacco. Kirby was later charged with the crime of trafficking with an

inmate. Bennett, who refused to cooperate with the investigation, was also

charged with trafficking with an inmate and bribery. [9] On January 28, 2015, the State charged Corley with three counts: Count I,

Level 5 felony trafficking with an inmate; Count II, Level 5 felony bribery; and

County III, Class A misdemeanor trafficking with an inmate. The State later

added an allegation that Corley was a habitual offender. [10] A three-day jury trial was held on June 8 – 10, 2015. At trial, the State offered

into evidence the video recordings from the surveillance cameras and the

recorded jail telephone calls into evidence. The trial court admitted these over

Corley’s objection. Kirby testified against Corley and admitted that she had

provided Corley with tobacco and a cell phone and had received $100 in

exchange. At the conclusion of the trial, the jury found Corley guilty as

charged. The trial court subsequently sentenced Corley to four-and-one-half

years’ incarceration on both Level 5 felony counts and to one year on the

misdemeanor count. The trial court enhanced the sentence on Count II by

thirty months and ordered the sentences on all counts to be served concurrently,

for an aggregate term of eighty-four months, i.e. seven years. Corley now

appeals.

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Standard of Review [11] Corley contends on appeal that the trial court erred in admitting into evidence

two of the recordings made of his jail telephone calls. Decisions regarding the

admission of evidence are entrusted to the sound discretion of the trial court,

and we review the court’s decision only for an abuse of that discretion. Rogers v.

State, 897 N.E.2d 955, 959 (Ind. Ct. App. 2008), trans. denied. A trial court

abuses its discretion if its decision is clearly against the logic and effect of the

facts and circumstances before the court, or if the court has misinterpreted the

law. Id.

Discussion and Decision [12] Corley argues that the trial court erred in admitting into evidence State’s

Exhibits 5 and 6 because only one of the parties to the conversation was

authenticated. Corley notes that it has been held that “the identities of both

parties must be authenticated before admitting a telephone call.” Young v. State,

696 N.E.2d 386, 389 (Ind. 1998) (citing King v. State, 560 N.E.2d 491, 494 (Ind.

1990)); see also Johnson v. State, 699 N.E.2d 746, 749 (Ind. Ct. App. 1998)

(noting that a recording is not admissible unless the voices contained thereon

are identified). A caller’s identity can be established by circumstantial evidence

and need not be proven beyond a reasonable doubt. Young, 696 N.E.2d at 389. [13] Here, Corley does not deny the presence of evidence establishing that his voice

was one of the voices on Exhibits 5 and 6. Instead, he correctly notes that the

identity of the other voices on these calls was never established. The State

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responds by noting that our courts have repeatedly upheld the admission of

recorded jail telephone calls. See, e.g., Baer v. State, 866 N.E.2d 752, 762 (Ind.

2007) (affirming trial court’s admission of recording of jail telephone call made

by defendant to his sister). However, in Baer, the identity of both parties on the

call was apparently known. The other cases cited by the State are readily

distinguishable. [14] In Dorsey v. State, 802 N.E.2d 991 (Ind. Ct. App. 2004), the defendant argued

that the conversations on a recorded phone call was hearsay. This court held

that the unidentified speaker was acting as the defendant’s agent and that the

statements were therefore not hearsay but the statement of a party. Id. at 994-95

(citing Ind. Evidence Rule 801(d)(2)(D)). Thus, in Dorsey, there was no question

regarding the authentication of the unidentified speaker on the recording. [15] In Steinberg v. State, 941 N.E.2d 515 (Ind. Ct. App. 2011), the identity of the

parties on the recorded call were known to be the defendant and his parents. On

appeal, the defendant claimed that the admission of the recordings was

improper under both the Federal Wiretap Act and the Indiana Wiretap Act and

that recordings contained hearsay and irrelevant and unduly prejudicial

information. Again, there was no question regarding the authentication of

voices on the call. [16] Thus, Corley has a colorable argument that the identity of the other participant

to the calls should have been established before Exhibits 5 and 6 were admitted

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into evidence. Even if we assume arguendo that these exhibits were improperly

admitted, though, it does not require us to reverse Corley’s convictions. [17] We will not reverse a defendant's conviction if the error was harmless. Harrison

v. State, 32 N.E.3d 240, 254 (Ind. Ct. App. 2015), trans. denied. Generally, errors

in the admission of evidence are to be disregarded unless they affect the

substantial rights of a party. Id. An error is considered to be harmless if

substantial independent evidence of guilt satisfies the reviewing court that no

substantial likelihood exists that the challenged evidence contributed to the

conviction. Id. [18] Here, we conclude there was substantial independent evidence of Corley’s guilt

other than the challenged recordings. That evidence satisfies us that there is no

substantial likelihood that the admission of these two recorded phone calls

contributed to the jury’s verdict. First, the statements on the challenged

recorded calls are brief and not terribly incriminating. On one, Corley admits

that the tobacco was “delicious.” Ex. Vol., State’s Ex. 6. On the other, the

unidentified man with whom Corley is talking states that he was “nervous” and

afraid that “something was gonna go bad.” Corley tells the man that he has

$160 in an account that he could release to the man, and the man responds that

he will “figure something out.” Id., State’s Ex. 5. [19] However, the statements in the recordings pale in comparison to the other

evidence of Corley’s guilt: Corley admitted to B.B., his fellow inmate, that he

was distributing tobacco in the jail (although he falsely claimed to be obtaining

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it through the laundry). Kirby admitted that, in exchange for $100, she gave

Corley tobacco by sliding bags of it under his cell door and unchallenged video

recordings from the jail show Kirby bending down in front of Corley’s cell.

Other unchallenged recorded telephone calls from the jail reveal that Corley

stated that he had found a “mule,” asked for $100, and told “Adam” that he

would repay him “that hundred.” Ex. Vol., State’s Ex. 2, 4. Given this rather

overwhelming evidence of Corley’s guilt, we can safely say that the admission

of State’s Exhibits 5 and 6 was, at most, harmless error. [20] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

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