Alea v. State, 71--1419

• Decision Date: 25 July 1972
• Docket Number: No. 71--1419,71--1419
• Citation: 265 So.2d 96
• Parties: Jose B. ALEA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 96

265 So.2d 96

Jose B. ALEA, Appellant, v. The STATE of Florida, Appellee.

No. 71--1419.

District Court of Appeal of Florida, Third District.

July 25, 1972.

Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., and PEARSON and HAVERFIELD, JJ.

PEARSON, Judge.

The appellant was charged by information, found guilty after a nonjury trial, and adjudged guilty of extortion and conspiracy to commit extortion. He was sentenced to one year in the county jail. The single point presented for our review argues that the trial judge committed reversible error when he allowed the results of a spectrographic analysis to be admitted into evidence. The results of the spectrographic analysis were used to support the proof of appellant's identity as the perpetrator of the crime.

A spectrograph is an instrument which scientifically processes the sounds of human speech and reproduces them graphically as a spectrogram or 'voiceprint.' Spectrographic analysis is based on the theory that no two human voices are identical. Therefore, in criminal prosecutions, the voiceprints of a suspect can be compared with other voiceprints in a manner which resembles fingerprint interpretation.

The expert testimony of witnesses Dr. Oscar Tosi, Professor of Audiology and Speech Sciences at Michigan State University, and Ernest Nash, police officer in charge of the Michigan State Police Voice Identification Unit was admitted. It should be noted that in the case at bar, appellant's point on appeal does not include an assertion that his voiceprint was improperly taken, nor does it include an assertion that appellant's constitutional rights were violated.

Appellant insists that there is absolutely no Florida appellate authority to sustain the admission for any purpose, of spectrographic voiceprint identification. It is further contended that only three appellate courts have dealt with the admission of spectrographic voiceprint identification in the entire country, and two of those courts have refused its admission for any purpose. People v. King, 266 Cal.App.2d 437, 72 Cal.Rptr. 478 (1968); State v. Cary, 99 N.J.Super. 323, 239 A.2d 680 (1968), aff'd., 56 N.J. 16, 264 A.2d 209 (1970). The appellant argues that only the Supreme Court of Minnesota has admitted spectrographic voiceprint identification, and then solely for the purpose of establishing, at a habeas corpus hearing, probable cause to justify the issuance of an arrest and search warrant. State ex rel. Trimble v. Hedman, 291 Minn. 442, 192 N.W.2d 432 (1971). Therefore, appellant urges that it was clearly prejudicial error for the trial court to admit spectrographic voiceprint identification into evidence except for the limited purpose approved in State ex rel. Trimble v. Hedman, supra.

The state argues that admissibility of voice identification has long been the law in Florida. Such testimony is admissible to establish the identity of a suspect as direct and positive proof, although its probative value is a question for the jury. In Martin v. State, 100 Fla. 16, 129 So. 112 (1930), the Supreme Court of Florida stated the rule as follows:

'This court has held that testimony is admissible to establish the identity of an accused even by one having heard his voice, and such evidence is not to be considered as circumstantial, but as direct and positive proof of a fact, and its probative value is a question for the jury. Pennington v. State, 91 Fla. 446, 107 So. 331; Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A., N.S., 373, 14 Ann.Cas. 78; Martin v. State, 86 Fla. 616, 98 So. 827.'

Also see Simon v. State, Fla.App.1968, 209 So.2d 682. Furthermore, a recorded telephone conversation made with the consent of one of the parties to the conversation, is admissible. See Walker v. State, Fla.App.1969, 222 So.2d 760; Barber v. State, Fla.App.1965, 172 So.2d 857. This is particularly true when the recording is used to corroborate the testimony of the consenting party. See Parnell v. State, Fla.App.1969, 218 So.2d 535; Koran v. State, Fla.App.1968, 213 So.2d 735; State ex rel. Trimble v. Hedman, supra. In the case at bar, three tape recordings of extortionary telephone calls to a prosecution witness, depicting the voice of the defendant, were introduced into evidence to corroborate the witness' testimony. Two of the telephone calls were recorded by the prosecution witness himself. The third was recorded by the prosecution witness while a police officer was listening in with the witness' consent. The introduction into evidence of these tape recordings was proper according to the latest pronouncement of the Supreme Court of Florida in Tollett v. State, Fla.1972, Case No. 40,993, filed May 24, 1972. In that case, the Court clearly outlined the requirements for admissibility of such tape or electronic recordings:

'We take note of Chapter 934, F.S., enacted as Chapter 69--17 at the 1969 legislative session and particularly Section 934.01(4) thereof, which reads in part:

'(4) To Safeguard the privacy of innocent persons, the interception of wire or oral communications When none of the parties to the communication has...