Bates v. State, CR-94-0808

• Decision Date: 29 September 1995
• Docket Number: CR-94-0808
• Citation: 669 So.2d 232
• Parties: Andrew BATES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 232

669 So.2d 232

Andrew BATES v. STATE.

CR-94-0808.

Court of Criminal Appeals of Alabama.

Sept. 29, 1995.

Appeal from Colbert Circuit Court (CC-93-161); Pride Tompkins, Judge.

Alan Gargis, Muscle Shoals, for appellant.

Jeff Sessions, Atty. Gen., and Thomas Leverette, Asst. Atty. Gen., for appellee.

LONG, Judge.

The appellant, Andrew Bates, was convicted of the unlawful sale of a controlled substance and was sentenced to 15 years in prison, 5 years of which was the additional penalty provided for by § 13A-12-250, Ala.Code 1975, because the sale of the controlled substance occurred within three miles of a school campus. He raises several issues on appeal.

I.

The appellant contends that the trial court erred by allowing into evidence an audiotape recording of the alleged drug sale. The appellant's counsel objected to the admission of the tape recording on the ground that the state had failed to prove a proper predicate.

The state's evidence established the following. On the night of March 4, 1993, an undercover police investigator purchased a $30 bag of marijuana from the appellant at an establishment known as, among other names, "Doug's Club" or "Doug Bates's Club." The police investigator wore a concealed transmitter during the drug sale, and two other police officers listened and tape-recorded the transaction from a remote location. At trial, one of the police officers who had monitored and recorded the transaction, Officer Anthony Pace, testified that he recorded the transaction, that he had since listened to the recording, and that the recording "fairly and accurately portray[ed]" the conversation he heard while monitoring the transaction. (R. 145.) The tape recording was offered by the prosecution and was admitted into evidence over the appellant's objection.

The predicate for the admission of the tape recording was sufficiently established by Officer Pace's testimony.

"[W]hen a qualified and competent witness can testify that the sound recording ... accurately and reliably represents what the witness sensed at the time in question, then the foundation required is that for the 'pictorial communication' theory. Under this theory, the party offering the item must present sufficient evidence to meet the 'reliable representation' standard, that is, the witness must testify that the witness has sufficient personal knowledge of the scene or events pictured or the sounds recorded and that the item offered accurately and reliably represents the actual scene or sounds."

Ex parte Fuller, 620 So.2d 675, 678 (Ala.1993).

" 'In determining whether there is a sufficient showing of accuracy to warrant the admissibility of tape recordings, the governing standard is whether the possibility of misidentification and adulteration is eliminated, not absolutely, but as a matter of reasonable probability, and the trial judge has broad discretion in determining whether the foundation requirements for admissibility are satisfied.' "

Paige v. State, 621 So.2d 372, 373 (Ala.Cr.App.1993) (quoting 23 C.J.S. Criminal Law § 1046(b) at 325 (1989)).

There was no abuse of discretion here, and the tape recording was properly admitted into evidence.

II.

The appellant contends that his right to a fair trial was denied as a result of certain allegedly prejudicial statements and questions by the prosecution and the trial court during the proceedings.

A.

The appellant argues that the prosecution deliberately attempted to prejudice prospective jurors when, during voir dire of the venire, the prosecutor prefaced a question to jurors by stating, "The owner of the club, the former owner of the club where this incident took place is a gentleman by the name of Doug Bates." (R. 18.) The appellant's counsel objected to the prosecutor's comment, stating outside the hearing of the venire that the owner was actually named "Douglas Fuqua." Apparently, the appellant's counsel was concerned that the comment would cause veniremembers to be prejudiced against the appellant if they thought he had the same last name as, and therefore might be related to, the owner of the club. In response to the objection by the appellant's counsel, the prosecutor stated that Douglas Fuqua had previously been known for a number of years as Doug Bates. The trial court then ruled that the prosecutor could continue to ask the prospective jurors about their knowledge of both Doug Bates and Douglas Fuqua.

The prosecutor's reference to Doug Bates occurred during voir dire when he was attempting to establish whether prospective jurors knew anything about the case or were related to or acquainted with any of the parties who might in some way be involved in the case. The appellant's counsel did not dispute the prosecutor's claim that Douglas Fuqua had at one time gone by the name of Doug Bates. Moreover, during cross-examination of the appellant, it was established that the individual now known as Douglas Fuqua was, in fact, the appellant's brother. Earlier in the voir dire, before the complained-of statement by the prosecutor, the prosecutor referred to the location of the drug sale as "Doug's Club" or "Doug Bates's Club" without objection by the appellant. (R. 16.) Throughout the trial, there was testimony that was not objected to referring to the place of the drug sale as "Doug Bates's Club." In fact, at one point during voir dire of the jury venire, the appellant's own counsel referred to "Doug Bates." (R. 48.)

It is simply not apparent from the record how the appellant was prejudiced by the reference to Doug Bates of which he now complains. The prosecutor's questioning of prospective jurors concerning their knowledge of Doug Bates touched upon matters concerning jurors' possible interests or bias in the case. The nature and extent of voir dire is a matter within the trial court's discretion. Qualls v. State, 555 So.2d 1158 (Ala.Cr.App.1989). A trial court has broad discretion in overseeing voir dire of the jury venire, and the trial court's decision in exercising its discretion will be upheld absent an abuse of discretion. Lane v. State, 644 So.2d 1318 (Ala.Cr.App.1994). We do not find that the trial court abused its discretion by allowing the prosecutor to ask jurors if they knew of or were acquainted with Doug Bates.

B.

The appellant argues that the trial court made improper prejudicial remarks during voir dire when it instructed members of the venire that they were to disregard certain comments made by the appellant's counsel. After a prospective juror asked the appellant's counsel what Mr. Fuqua's residence "has to do with Mr. Bates," the appellant's counsel responded as follows: "That's a good question. If you ask me, it doesn't have anything to do with it, but the district attorney apparently believes it does." (R. 46.) The prosecutor then objected to the characterization of his question by the appellant's counsel and asked the trial court to give curative instructions. (R. 46.) The objection was sustained, and the trial court instructed the venire "to disregard the question and answer" by the appellant's counsel and further instructed them that statements by the attorneys "[are] not evidence in the case" and that the only evidence that jurors should consider "comes from the witness stand." (R. 46.) The appellant's counsel then moved for a mistrial on the grounds that "the Court has improperly told the jury that I made improper remarks to them, which is in violation of this defendant's rights to a fair trial, ... [a]nd further the Court has instructed the jury venire not to pay any attention to what I ask them." (R. 47.) The motion for a mistrial was denied by the trial court.

The trial court acted within in its discretion in instructing the venire to disregard the editorializing of the appellant's counsel. Furthermore, there was nothing improper in the trial court's instruction that statements by the attorneys are not evidence. See, e.g., Armstrong v. State, 516 So.2d 806 (Ala.Cr.App.1986). Finally, it is obvious from the record that the trial court's remarks were in no way instructions to prospective jurors to ignore further questions by the appellant's counsel. The appellant's substantial rights were not affected, and the motion for a mistrial was properly denied.

C.

The appellant argues that he was unduly prejudiced when, during cross-examination, the prosecutor asked him a question concerning his knowledge of the licensing of the establishment where the alleged drug sale occurred. The appellant's counsel objected to the question on the grounds that it was irrelevant, that it called for testimony involving crimes committed...