Question: Are Recorded Jail Telephone Calls Admissible Into Evidence?
Answer: Yes, When Consent To The Recording Is Given By Either The Sender Or The Receiver.
In 2015, Brian Wynne began work on a home improvement project at Tyson Burris’s home. Wynne did not provide Burris with a written agreement or set a price, but stated that the labor cost would not exceed $2500. Wynne worked over the next several days, appearing progressively later each day. During the project, Wynne brought a set of kitchen appliances to Burris’s home to sell. Burris began to suspect that the appliances had been stolen and decided to contact local authorities. He learned that Wynne was a suspect in a recent burglary. Burris provided a detailed statement to the sheriff’s office. Thereafter, Wynne was arrested for burglary while working at Burris’s home. As a result of his arrest, Wynne did not finish the project. Burris eventually hired others to complete the work.
Wynne bonded out of jail and then tried to contact Burris regarding the project. Burris refused his calls but communicated with Wynne via text. They discussed a payoff amount, and Burris directed Wynne to contact Brian Alsip, Burris’s attorney, to complete the settlement. Burris provided Alsip with a cashier’s check made out to Wynne. Alsip and Wynne arranged to meet, and Wynne understood that he would need to sign a release in order to receive the check. This meeting did not occur because Wynne was arrested on a warrant. While in jail, Wynne made phone calls to Mooney, his longtime girlfriend. Wynne indicated on a number of occasions that he wanted Mooney to pick up the check, as well as handle other matters for him. In one phone call, Wynne reminded Mooney that she had his power of attorney (POA), and he referenced the POA in another recorded call. With respect to the check from Burris, Wynne directed Mooney to sign my name on the back, take it to the ATM machine and deposit it. Mooney understood from her discussions with Wynne that the amount of the settlement check was to be $1400. As directed by Wynne, Mooney contacted Burris to complete the settlement. Mooney met with Alsip, and presented him with the POA and her driver’s license. She also signed an affidavit prepared by Alsip regarding the settlement agreement and the POA. Mooney then signed the Settlement Agreement and General Release on Wynne’s behalf, and Alsip gave her the $1400 cashier’s check made payable to Wynne.
Later, Wynne filed a small claims action against Burris for services rendered and Alsip for negligence in releasing the cashier’s check to Mooney. The basis of Wynne’s claims was that the POA was invalid and possibly forged. Wynne appeared telephonically from prison and represented himself at trial. Burris was represented by counsel, and Alsip represented himself. The trial court determined that both Wynne and Mooney believed that Wynne had appointed Mooney as his attorney in fact and that Wynne authorized her to obtain the settlement check on his behalf. Thus, the court concluded that Wynne had provided Mooney with actual authority to act as his agent in this matter, and Wynne could not now seek to avoid the Agreement. Wynne now appeals.
On appeal, Wynne contends that the trial court abused its discretion by admitting into evidence the recorded telephone conversations from the jail between him and Mooney. Wynne argued that the recordings violated the “Wiretap Act of Indiana” because Alsip illegally intercepted wiretap without authorization through a search warrant or any other means. The recording of a communication with the consent of either the sender or the receiver is not an interception, as defined by the Indiana Wiretap Act. Here, the evidence establishes that Mooney was aware that the jail calls were being recorded, and she still accepted them. Additionally, Wynne acknowledges that the calls included an automated voice that tells the called party that the phone call may be recorded. Under these circumstances, Mooney consented to the recording when she accepted the collect calls after being warned that the calls could be recorded. The recordings were, therefore, not in violation of the Indiana Wiretap Act and were admissible. 105 N.E.3d 188