Jennifer Nelson for www.theindianalawyer.com
A man convicted of raping his wife after drugging her – and recording several sexual encounters – could not convince the Indiana Court of Appeals that the wife’s recordings of the videos she found on her husband’s cellphone should not have been admitted at his trial.
David Wise was convicted of one count of rape and five counts of criminal deviate conduct, all as Class B felonies. Wise was accused of using his wife’s prescription Xanax, which made her sleepy, to drug her in order to have sex with her. M.B., who became suspicious that Wise may have been sneaking the drug into her soda, found three videos on his cellphone. One depicted Wise having sexual intercourse with her and two showed Wise attempting to engage in oral sex with her. M.B. did not recall these incidents.
She used a handheld camcorder to record the videos from Wise’s cellphone. After the couple divorced, she turned the videos over to police. Wise received 20 years, with eight years served on in-home detention and 12 years suspended to probation.
In David Wise v. State of Indiana, 49A02-1406-CR-408, Wise argued the trial court should have not admitted the videos into evidence. He claimed they did not satisfy the requirements of the “silent witness†theory, that the recordings could not be properly authenticated, and that admission of the recordings would violate his right to confrontation under the Sixth Amendment to the United States Constitution.
The Court of Appeals rejected all of Wise’s claims regarding the admission of the videos. They found the testimony from M.B., Wise and a friend to whom Wise admitted he had drugged his wife established a sufficient foundation upon which the trial court could admit the recordings under the “silent witness†theory.
The renaming of the videos on Wise’s phone by his wife did not mean that they had somehow been altered, as he argued, and his confrontation rights weren’t violated because M.B. was cross-examined on the recordings by Wise’s counsel, the COA held.
There was also no err by the trial court to deny his motion to compel M.B. to answer questions regarding any potential extramarital affairs. He argued that it could have been another man in the videos. Again, Wise was able to cross-examine his wife concerning her identification of him in the video and the possibility of the recording by someone other than Wise.
