






ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLEE:

PATRICK R. RAGAINS                      JEFFREY A. MODISETT
Smith, Ragains & Cotton                      Attorney General of Indiana
Anderson, Indiana
                                        STEPHEN K. TESMER
                                        Deputy Attorney General
                                        Indianapolis, Indiana



                                   IN THE

                          SUPREME COURT OF INDIANA


ELLIS THOMAS,                           )
                                        )
      Appellant-Defendant,              )
                                        )    Supreme Court Cause Number
            v.                          )    48S00-9802-CR-81
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MADISON SUPERIOR COURT
                                DIVISION III
                   The Honorable Thomas Newman, Jr., Judge
                        Cause No.  48D03-9401-CF-017

                              ON DIRECT APPEAL

                              September 6, 2000

RUCKER, Justice


                                Case Summary

      A jury convicted Ellis Thomas of murder, attempted  murder,  attempted
robbery, and attempted carjacking.  The trial court  sentenced  him  to  110
years imprisonment.  In this direct appeal, Thomas contends the trial  court
erred in introducing into evidence a letter Thomas authored and a  telephone
conversation recorded between Thomas and another person.  We affirm.

                                    Facts


      In the early morning hours of October  3,  1993,  Marvin  McCloud  and
Damon Nunn were seated in McCloud’s car in the  parking  lot  of  an  after-
hours night club.  Thomas, along with his brother  Walter  Goudy,  a  cousin
Lamont Thomas, and an acquaintance Kaidi  Harvell,  saw  McCloud’s  car  and
devised a plan to take the rims and tires.  As McCloud began to drive  away,
two gunmen approached the car with handguns drawn and began firing.  McCloud
died as a result of a  gunshot  wound  to  the  chest.   Nunn  survived  the
fusillade although he was severely injured by five  gunshot  wounds  to  the
face, chest, and leg.  All four men were charged in  the  shootings.   Under
terms of an agreement, Harvell pleaded guilty to assisting a  criminal.   He
testified at trial that Thomas and Goudy were the shooters.  At  a  separate
trial, in which Harvell also  testified,  Goudy  was  convicted  of  murder,
attempted murder, attempted robbery, and attempted  carjacking.   See  Goudy
v. State, 689 N.E.2d 686 (Ind. 1997).
      While Goudy’s case was pending, Thomas wrote a letter to the presiding
judge claiming that he, and not Goudy, was responsible for shooting  McCloud
and Nunn.  In fact, Thomas claimed that he and Harvell  were  the  shooters.
Thomas also telephoned Goudy’s  attorney  making  the  same  representation.
The conversation was recorded.  Over Thomas’ objection at trial,  the  State
introduced into evidence both the  letter  and  the  recorded  conversation.
Ultimately the jury returned a verdict of guilty as charged, and  the  trial
court sentenced Thomas to  110  years  in  prison.   This  appeal  followed.
Additional facts are set forth below where relevant.
                                 Discussion
      Thomas contends the trial court erred  in  admitting  the  letter  and
recorded conversation into evidence.  He argues the State failed  to  lay  a
proper foundation for either exhibit.  “The  requirement  of  authentication
or identification as a condition precedent to admissibility is satisfied  by
evidence sufficient to support a finding that  the  matter  in  question  is
what its proponent claims.”   Ind.  Evidence  Rule  901(a).   When  evidence
establishes a reasonable probability that an item is what it is  claimed  to
be, the item is admissible.  Lockhart v. State, 671 N.E.2d  893,  901  (Ind.
Ct. App. 1996).  When a  trial  court  has  made  a  ruling  concerning  the
sufficiency of the foundation laid to justify the admission of evidence,  we
review that decision for an abuse  of  discretion.   State  v.  Walton,  715
N.E.2d 824, 828 (Ind. 1999).

                         I.  Admission of the letter

      The record shows the envelope in which the letter was contained  bears
a postmark from Flagstaff, Arizona with a  return  address  for  “Mr.  Ellis
Thomas 112188 Arizona State Prison, Winslow.”  R.  at  1077.   Although  the
postmark date on the envelope is unclear, the heading of the letter bears  a
date of “12/06/95.”  R. at 1074.   At  the  time  the  letter  was  written,
Thomas was incarcerated in the Arizona  State  Prison  located  in  Winslow,
Arizona.  The record also shows that detectives Randy Tracy and  Stan  Young
of the Anderson  Police  Department  traveled  to  Arizona  and  interviewed
Thomas while he  was  incarcerated.   The  letter  makes  reference  to  the
Tracy/Young interview.  It also identified a person by the name  of  “Kaidi”
as being involved with Thomas in  the  shootings.   Before  the  letter  was
admitted as evidence, Kaidi Harvell testified that he was  in  fact  present
when McCloud and Nunn were shot, and that Thomas was on the  passenger  side
of  McCloud’s  car  during  the  shooting.  Although   Harvell’s   testimony
regarding his own involvement in the crime differs from  that  described  in
the letter, Harvell’s testimony nevertheless  showed  that  the  person  who
authored the letter had knowledge about the events of the  crime  that  were
not likely known by anyone in the Arizona State Prison  other  than  Thomas.
Finally, the record  reveals  that  as  the  letter  requested,  Thomas  was
transported from Arizona to Indiana to testify at his brother’s  trial.   We
conclude there was sufficient evidence to  support  a  finding  that  Thomas
authored the letter.  Thus, the State laid an adequate  foundation  to  meet
the requirements for authentication.  The trial  court  did  not  abuse  its
discretion by admitting the letter into evidence.

              II.  Admission of the recorded telephone message

      The record shows that in July 1995 someone placed a call to the office
of Goudy’s trial attorney.  The caller identified himself as  Ellis  Thomas,
Jr. and said he was calling from Arizona.   Although  the  details  are  not
contained in the record, the call was prearranged,  and  the  caller  agreed
that it should be recorded.  The investigator hired by Goudy’s attorney  was
present and questioned the  caller.   Through  a  series  of  questions  and
answers the caller gave a detailed forty-five  minute  statement  concerning
the events leading up to, during, and  after  the  shooting.   As  with  the
letter, the caller made reference to the Tracy/Young  interview  and  talked
about his and Kaidi’s involvement in the shooting.  At a  pre-trial  hearing
on a motion to dismiss the charging information,  Thomas  conceded  that  it
was his  voice  on  the  recorded  telephone  interview.[1]   Admitting  the
recording into evidence at trial, the trial court ruled  the  recording  had
been  properly  authenticated  in  part   because   of   Thomas’   pre-trial
concession.
      As a general rule  a  defendant’s  pre-trial  testimony  can  be  used
against him at trial.  Johnston v. State, 517 N.E.2d 397, 401  (Ind.  1988).
However, exceptions to this  general  rule  have  been  established  when  a
defendant raises questions involving his rights in pre-trial  matters.   Id.
For example, testimony  at  a  hearing  on  a  motion  to  suppress  is  not
admissible at trial as evidence of the  defendant’s  guilt.   Livingston  v.
State, 542 N.E.2d 192, 194 (Ind. 1989).  In like fashion, evidence that  the
defendant entered a plea  agreement  and  withdrew  it  prior  to  trial  is
inadmissible at trial on the charge.  Cambridge v. State, 428  N.E.2d  1252,
1254 (Ind. 1981).  The exceptions were created to prevent the  accused  from
being placed in a position of having to sacrifice  one  right  for  another.
As the United  States  Supreme  Court  long  ago  observed,  “[W]e  find  it
intolerable that  one  constitutional  right  [under  the  Fifth  Amendment]
should have to be surrendered in order to assert another [under  the  Fourth
Amendment].”  Simmons v. United States, 390 U.S.  377,  394  (1968)  (ruling
defendants are protected  against  use  of  substantive  evidence  of  their
testimony offered in support of a motion to  suppress  evidence).   In  this
case, the trial court’s reliance on Thomas’  pre-trial  admission  that  the
voice  on  the  recording  was  his  own  was  improper  for   purposes   of
authenticating the recording.  Not only was  Thomas  asserting  a  statutory
right, see supra note 1, but also the record shows that Thomas made the pre-
trial admission upon cross-examination by the State.  R. at 1083.
      Nonetheless, the trial court did not err in  admitting  the  recording
into evidence.  A caller's identity can  be  established  by  circumstantial
evidence and need not be proven beyond a reasonable doubt.  Young v.  State,
696 N.E.2d 386, 389 (Ind. 1998); King  v.  State,  560  N.E.2d  491,  494-95
(Ind. 1990).  As we have already  indicated,  when  evidence  establishes  a
reasonable probability that an item is what it is claimed to  be,  the  item
is admissible.  Lockhart, 671 N.E.2d at 901.  Independent  of  Thomas’  pre-
trial admission, the circumstantial evidence recounted above was  sufficient
to authenticate the recording.

                                 Conclusion

      We affirm the trial court’s judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.
-----------------------
      [1]  Thomas was actually challenging the propriety of the State filing
charges against him when he returned to Indiana to testify on behalf of  his
brother.  Indiana Code § 35-37-5-8 provides,


      If a person comes into this state in obedience to a subpoena directing
      him to attend and testify in a criminal prosecution  in  this  or  any
      other state, he shall  not  while  in  this  state  pursuant  to  such
      subpoena be subject to arrest or the service  of  process,  civil,  or
      criminal, in connection with matters which arose before  his  entrance
      into this state under subpoena.

Thomas pursed an interlocutory appeal challenging the denial of  his  motion
to dismiss.  The  Court  of  Appeals  affirmed  in  a  Memorandum  Decision.
Thomas v. State, No. 48A02-9604-CR-193 (Ind. Ct. App. Dec.  16,  1996).  The
issues raised in that appeal are not before us here.

