Briggs v. State, 4 Div. 28
| Decision Date | 30 June 1989 |
| Docket Number | 4 Div. 28 |
| Citation | 549 So.2d 155 |
| Parties | David Lee BRIGGS, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Banks T. Smith of Carter, Hall & Sherrer, Dothan, for appellant.
Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for appellee.
The appellant, David Lee Briggs, Jr., was indicted by a Houston County grand jury for arson in the first degree, in violation of § 13A-7-41, Code of Alabama (1975). The appellant was found guilty in a jury trial of the offense charged, and was sentenced to a term of ten years' imprisonment and was ordered to pay restitution in the amount of $15,393.43. Seven issues are raised in this appeal of the appellant's conviction.
The appellant first contends that the trial court erred by admitting into evidence State's Exhibits Nos. 1 and 2, which were tape recordings made of telephone calls between the appellant and his estranged wife, Nancy Briggs, who was the victim of the arson. In support of his argument, the appellant contends that the State failed to establish a proper chain of custody for the tapes, and also failed to lay the proper predicate for their admission. This Court does not agree.
The record indicates that, after her home was burned on March 15, 1987, Ms. Briggs met with Tommy Shirley, the owner of Special Investigation and Consultant Services. Shirley was hired by Auto Owners Insurance Company to investigate the arson of Ms. Briggs's home. Shirley testified that he gave Ms. Briggs a telephone answering machine containing a recording device, and that he also provided her with several blank tapes. Shirley likewise testified that he had shown Ms. Briggs how to use the answering machine and recorder.
Ms. Briggs testified that she knew the appellant's voice, and that she received several calls from him at her home in mid-April 1987. Ms. Briggs testified that she would operate the recorder each time that she received one of these calls. Ms. Briggs further stated that, during the last week of April 1987, she notified Shirley that she had two tapes which contained telephone conversations between the appellant and her and that Shirley took possession of the tapes a short time later.
The record indicates that on May 1, 1987, Shirley met with Shelby Womack of the Dothan Fire Department at the district attorney's office to listen to the two tapes. Shirley testified that, between the time he received the tapes from Ms. Briggs and this meeting, the tapes remained in his briefcase, which he always kept with him. Shirley further testified that he did not alter or change the tapes in any way.
After hearing the tapes, Womack and Shirley met Ms. Briggs at her place of business and gave her the tapes. Ms. Briggs wrote her name on the tapes, and immediately returned them to Womack, who kept the tapes in his possession and control until they were transcribed by his secretary. After the transcription, the tapes were returned to Womack, who retained custody of them until the appellant's trial. Womack also testified that he had not marked, altered, or changed the tapes in any way. Ms. Briggs likewise testified that she did not alter the tapes and did not arrange for anyone to portray the appellant's voice or pretend to be the appellant.
The tapes, which contained numerous admissions by the appellant, were then played to the jury, over the appellant's objection. After the tapes were played, Ms. Briggs testified that the voices heard on them belonged to the appellant and her and that the content of the recordings consisted of the telephone conversations between the two. During the hearing on the appellant's motion in limine held prior to his trial, Ms. Briggs testified that the tapes had not been erased or altered in any other manner since she relinquished possession of them.
In Voudire v. State, 387 So.2d 248, 256 (Ala.Cr.App.1980), this Court held that, before a sound recording may be properly admissible as evidence, the following must be shown:
Id. See also, Walker v. State, 416 So.2d 1083, 1094 (Ala.Cr.App.1982).
In this Court's opinion, each of the requirements set forth in Voudire, supra, has been satisfied in the present case. Although the appellant argues that the State failed to show a proper chain of custody, this argument finds little support in the evidence contained in the record. Moreover, Ms. Briggs testified that the tapes had not been altered or changed in any way since she relinquished possession of them.
Armstrong v. State, 516 So.2d 806, 811 (Ala.Cr.App.1986). See also Hiett v. State, 548 So.2d 483 (Ala.Cr.App.1986).
The appellant further argues that the trial court erred in admitting the tapes into evidence because Ms. Briggs did not "log" the calls allegedly made by him, and was therefore unable to state the dates and times the calls were made, or the number of such calls. The appellant has failed, however, to cite any authority requiring such information for a sound recording to be admissible. Moreover, the testimony of Ms. Briggs indicated that the calls were received between April 10, 1987, and May 1, 1987. In our opinion, this, together with the other evidence offered, is sufficient to establish the authenticity of the tapes.
The appellant argues that the trial court erred in admitting evidence of two earlier fires allegedly set by him in February 1987. The appellant argues that he was never charged with these fires, that he was not seen starting them, and that the evidence of these prior incidents was admitted only for the purpose of showing his propensity to commit the type of crime for which he was then being tried.
Ms. Briggs testified that, on February 9, 1987, apparently after a domestic dispute, she and her children left her house and ran down the street to call the police. When Ms. Briggs and her children returned to the house, she noticed that much of her clothing had been placed in a large pile in their backyard, and had been set on fire. Ms. Briggs testified that, when she left, the clothes were in her closet. Shortly thereafter, the police arrived, and questioned the appellant, who remained inside the house.
About four days later, Ms. Briggs came home to find that another fire had been set in the backyard. This time, both Ms. Briggs's possessions and of her daughter were burned. Ms. Briggs testified that although the appellant was not living there at the time he still had a key to the house.
On March 15, 1987, Ms. Briggs came home shortly after midnight. Thereafter, the appellant drove up in front of the house, sounding the horn of his vehicle. Ms. Briggs testified that she raised her window and told the appellant that she was calling the police, and that he then left. Ms. Briggs further testified that, after she had gone to bed, the appellant telephoned and asked her why she had called the police. After telling the appellant that she called the police because he would not leave her alone, Ms. Briggs took the telephone off the hook. Ms. Briggs testified that, at about 5 a.m., she was awakened by smoke in her bedroom and, realizing that there was a fire, took her children out of the house.
" 'The general rule is that evidence of other crimes not charged in the indictment is inadmissible if its only purpose is to show the bad character, inclination or propensity of the accused to commit the type of crime for which he is being prosecuted.' " Barton v. State, 494 So.2d 943, 952 (Ala.Cr.App.1986) (citations omitted). See also, C. Gamble, McElroy's Alabama Evidence, § 69.01(1) (3d ed. 1977). However, evidence of distinct and independent offenses is admissible in the trial of a person accused of a specific crime when its purpose is to establish identity or a single plan, design, scheme, or system. Dowdell v. State, 480 So.2d 45 (Ala.Cr.App.1985).
In the case sub judice, identity was very much in question at the appellant's trial, as he denied setting fire to his estranged wife's house, because there were no witnesses who could place him at the house at the time the blaze began. Evidence of the two fires that occurred in February 1987 was properly admissible in the present case as tending to prove that the appellant was the person who set the house fire.
The appellant contends in his brief that he was never charged with the two earlier fires, that no one saw him set them, and therefore...
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