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State v. Hebert1/16/2004
cific crimes were that led to the defendant's probation, or what the defendant had been arrested for prior to that.
At trial, the defendant objected to the introduction of the defendant's videotaped confession on the grounds that the tape had not been redacted to omit mention of defendant's prior crimes.
During the confession, the defendant mentioned being arrested by Sheriff Caldwell on an aggravated battery charge, violating his parole, and escaping from jail. The court ruled:
"We all knew he was in Cloud County and that he escaped from the Cloud County Jail. If that's all it is, that it simply mentions the fact that he'd been arrested by Sheriff Caldwell and mentions the possibility of a crime for which he was arrested but does not talk about a conviction of that or necessarily a conviction about any other crime other than his PV in Cloud County, then I'm going to allow that to go forward. . . .
"It strikes me is it goes to the veracity of his reason why he knew Sheriff Caldwell. I don't know how I can redact that out of there without completely taking out of context how he knew Sheriff Caldwell, and although it might have some prejudicial effect to the defendant, that, in my opinion, is not outweighed by the probative value which the statement has, especially in light of the fact that the jury is aware that Mr. Hebert has some prior criminal record or he would not have been in the Cloud County Jail. So based on the totality of the circumstances I'm going to go ahead and allow that over the objection of the defendant."
The videotape was then played for the jury. The defendant's specific complaint is in regards to the following portion of the confession:
"Q: How do you know Sheriff Caldwell? How do you know him by sight?
"A: He's the sheriff. Who doesn't know him?
"Q: Okay. So you've . . .
"A: Had contact with him before, yeah.
"Q: You've seen him and had previous contact several times?
"A: Mm-hmm.
"Q: And has he ever arrested you before?
"A: Shit, I'm sure he has for something.
"Q: You just can't think of a particular incident--possibly arrested you before?
"A: Yes. He and Kelly Kemp came and got me one day for something, but I don't know what it was for.
"Q: He and Kelly Kemp?
"A: Yeah.
"Q: Kelly Kemp is a sheriff's officer?
"A. Yeah, a cop of some kind--I don't know what he is.
"Q: Okay. And what were you arrested before on, Jeff? Why did they arrest you?
"A: I don't know what it was for that time. Shit I don't know. I think it was felony ag battery at that time.
"Q: Felony ag battery?
"A: Yeah, I think so.
"Q: You . . . The way you're saying this, Jeff, you say 'This time,' and so forth. It sounds like you've been arrested quite a bit in the past. I don't know this.
"A: Yeah, I've got a record.
"Q: You've got a record? You've been arrested quite a bit in the past? Ag battery was something you've been arrested for?
"A: The only time.
"Q: That was the only time--Okay. What other things have you been arrested for?
"A: DUI, DUI, minor in consumption, breaking a city park curfew--ah, shit, I don't know. Minor in possession, minor in consumption, I don't know shit. I don't know.
"Q: Okay, minor as far as drinking violations?
"A: Yes.
"Q: Okay."
Seven different prior crimes of the defendant were thus introduced into evidence: (1) aggravated batte
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