Brown, J.
Danny Cherry appeals his convictions for attempted murder as a class A felony, …. Cherry raises three issues which we consolidate and restate as: …
I. Whether the trial court abused its discretion by admitting Cherry’s recorded interview with police …
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On January 6, 2014, James Len, his wife, their three children, and a cousin of the children were at home on Rentham Lane in Indianapolis. Between midnight and 1:00 a.m. someone banged on a door, and James Len reported that he had been shot in the mouth by a tall young black man in dark clothing.
As a result of the injury, James Len suffered a stroke, underwent surgery, was in intensive care for twenty-three days, and is currently unable to speak.
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On April 14, 2014, Detectives Fogarty, Brickley, and Dan Asher went to Huntsville, Alabama. … where Cherry was jailed. Investigator Hughes told Detective Brickley that there was a toggle switch on the outside of the door of the interview room and that he could turn the recording devices on and off by flipping the switch. … At some point, Cherry was placed in the interview room. When Detective Brickley walked into the interview room, he flipped the switch.
… Detective Brickley read him his Miranda rights, and Cherry waived those rights and agreed to speak. After Cherry signed the waiver, the two continued casual conversation. They then took a break, and Detective Brickley flipped the switch as he left the room. Detective Brickley and Detective Fogarty entered the interview room, and Detective Brickley flipped the switch again as he entered. … ….
The next morning, the detectives from Indiana went to the Madison County Sheriff’s Office to pick up a DVD of the interview, and Detective Brickley was told that there was a malfunction and the first part of the interview where Detective Brickley and Detective Asher were in the interview room with Cherry did not record.
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Cherry points to Ind. Evidence Rule 617 and argues that the court abused its discretion in admitting the recorded portion of his interview with police because the portion of the interview lasting twenty or twenty-five minutes during which he signed the waiver of his Miranda rights was not recorded and there was no clear and convincing evidence as to how or if the recording equipment malfunctioned. …
The State contends that the exception in Rule 617(a)(3) was tailor-made for this case and points out that the detectives were in an unfamiliar interview room in Alabama, that Detective Brickley followed the instructions and flipped the switch before commencing the interview, and that the detectives had no way of knowing if the recording device was functioning while they were inside the interview room. …
Ind. Evidence Rule 617 is titled “Unrecorded Statements During Custodial Interrogation,” and provides:
(a) In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following:
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(3) The law enforcement officers conducting the Custodial Interrogation in good faith failed to make an Electronic Recording because the officers inadvertently failed to operate the recording equipment properly, or without the knowledge of any of said officers the recording equipment malfunctioned or stopped operating; or
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Ind. Evidence Rule 617(a)(3) applies here. Detective Brickley testified that he followed the instructions that Investigator Hughes gave him and that there was some type of malfunction. Investigator Hughes testified that when he was waiting for Cherry to be transported, he turned the switch to start the recording, that he was not present when Detective Brickley went in and flipped the switch, and that it was possible that Detective Brickley actually turned it off because Investigator Hughes had already turned it on and Detective Brickley did not know it. …
Based upon the record, we cannot say that the trial court abused its discretion in finding that there was clear and convincing evidence that the exception in Rule 617(a)(3) applied. Accordingly, we cannot say that the trial court abused its discretion by admitting the recorded portions of the interview of Cherry.
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For the foregoing reasons, we affirm Cherry’s convictions.
Affirmed.
Baker, J., and May, J., concur.