Com. v. Lykus

• Decision Date: 27 March 1975
• Citation: 327 N.E.2d 671,367 Mass. 191
• Parties: COMMONWEALTH v. Edward Stanley LYKUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 671

327 N.E.2d 671

367 Mass. 191

COMMONWEALTH v. Edward Stanley LYKUS.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 7, 1975.

Decided March 27, 1975.

Ronald D. Harper, New Bedford, for defendant.

Philip A. Rollins, Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

In this case of first impression in this Commonwealth, the single issue argued by the defendant concerns the judge's allowing in evidence, from an expert witness introduced by the Commonwealth, opinions as to voice identification based in part on visual analysis of spectrograms, commonly referred to as 'voiceprints.' We conclude that the evidence was properly admitted.

The defendant was convicted, after a jury trial, on three indictments charging him with the kidnapping and first degree murder of Paul Cavalieri, and extortion from the victim's father. ¹ The appeal is under G.L. c. 278, §§ 33A--33G.

The evidence in the case was as follows. Paul Cavalieri, thirteen years old, left his house in the early evening of November 2, 1972. He did not return home that night, or ever thereafter. Two days later the boy's mother received a tlephone call in which a voice said in a whisper, 'You will receive instructions.' Although Mrs. Cavalieri had known the defendant for seventeen years, she did not recognize the voice.

With permission of the Cavalieris, a 'tap' was placed on their telephone for the recording of incoming calls, and a so called 'trap' was also placed on the telephone to assist in the tracing of such calls.

A few days after that, a ransom note was received demanding $50,000. In the ensuing several days, the victim's father received several telephone calls all concerned with his son and the payment of ransom. He did not recognize the caller's voice. Following instructions in the note and in the telephone calls, the father left the ransom money at two different locations; the money was not picked up. As a result of the third telephone call, he left the money at a new and different location. At 12:10 A.M. on November 10, 1972, a white male was observed by police picking up the money. Sometime later, and not far away, other officers observed a man carrying a white bag come out of the woods and get into a red station wagon. By tracing the vehicle, they learned the identity of the driver, one Tardiff. From him, they learned of the identity of the defendant as a person who, on a pretext, had persuaded Tardiff to leave the defendant on a highway near the place where the ransom had been left, and to pick up the defendant later, at a prearranged place.

The defendant was arrested. The police warned him of his constitutional rights in terms that are not now contested, as to adequacy, by the defendant. The defendant admitted to the police that he had picked up the package, but he contended that he had done it for pay of $500 from a man in the drug traffic business. He denied having made telephone calls to the Cavalieris.

The defendant told of leaving the money where he had been instructed to by the man who had hired him. The police recovered the money later (not at the place told to them by the defendant), but rather as a result of information received from a man named Delaney, in whom the defendant had confided the location of the money. A package of black bags, identified as the same kind as the bag in which the ransom had been recovered by the police, was found in the defendant's vehicle. The defendant's personal effects and his automobile were stained by the dye that had been put on the ransom money.

On April 12, 1973, the body of Paul Cavalieri was found in a wooded area in North Attleborough. Death had been caused by gunshot wounds. In addition to the evidence outlined above, it was shown at trial that a .38 caliber Colt revolver had been found by police in the defendant's apartment. An expert testified that the bullets found in the victim's body could have been fired from that gun, as shown by rifling impressions on the bullets, but due to oxidation on the bullets there were not sufficient microscopic marks for identification. Ammunition for the gun was also discovered in the defendant's apartment and this ammunition, like the bullets found in the victim's body, was of a rare type. In addition, five staples found in the ranson note were examined and determined to be consistent in manufacture and size with a stapler and staples owned by the defendant. About the time of the victim's disappearance, the defendant was admittedly near the place where the victim was last seen alive. The defendant's car was seen several times near the place where the 'drop' of ranson money was first made, at the time when the money, in response to telephoned instructions, had been left at that location.

Eight witnesses listened at the trial to of these witnesses had heard the defendant speak on the telephone on prior occasions. Six of them identified the voice as that of the defendant. The eighth witness had not heard prior telephone talks of the defendant; he also identified the voice as that of the defendant. The witnesses were particularly definite in identifying certain words which were said, not in a whisper, but clearly. Only one of the eight witnesses, called as to this issue, could make no voice identification.

All of the 'tapped' recorded telephone calls to the Cavalieris had been whispered, at least for the most part, by the caller. Several exemplars of the defendant's voice reading the words of the previously recorded telephone calls, including exemplars in the defendant's whispering voice, were given to the police. The telephone tapes and the exemplars were sent to Lt. Ernest W. Nash of the Michigan State Police.

We turn now to the issue raised in these appeals: the admission in evidence of the voice identification opinions based on voice spectrograms. In an extensive voir dire hearing as to the admissibility of the evidence, Dr. Oscar Tosi, described as 'a professor at Michigan State University and director of the Speech and Hearing Research Laboratory,' and Lt. Ernest W. Nash of the Michigan State Police, described as 'of the Voice Identification Unit, which is a unit of the Scientific Criminal Laboratory, stationed at East Lansing, Michigan,' both introduced by the Commonwealth, testified at length in support of the admissibility of the evidence. Of the two only Lt. Nash subsequently testified before the jury, after the judge had ruled that his expert opinions were admissible. Dr. Louis J. Gerstman, introduced by the defendant, testified in general that voice spectrogram analysis is unreliable and that, at this time, voice spectrograms should not be used as a means of identification in a forensic situation. No issue is raised as to the qualifications of Lt. Nash, or, indeed, any of the three expert witnesses. The sole issue relates to whether the expert evidence of Lt. Nash offered here as been shown to be sufficiently reliable to be admissible in evidence.

In Commonwealth v. Fatalo, 346 Mass. 266, 269, 191 N.E.2d 479 (1963), and Commonwealth v. A. Juvenile (No. 1), --- Mass. ---, --- - ---, ^a 313 N.E.2d 120 (1974), cases concerned with the admissibility of polygraphic evidence, we adopted the standard of admissibility as to expert opinions based on scientific discoveries as first stated in the case of Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923); 'Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs' (emphasis added).

In the Fatalo case, supra, 346 Mass. at 269, 191 N.E.2d at 481, we said: 'Judicial acceptance of a scientific theory or instrument can occur only when it follows a general acceptance by the community of scientists involved. When supported by substantial authority establishing scientific reliability, this court has not hesitated to accept the benefits of science.' See also Commonwealth v. Stappen, 336 Mass. 174, 176--177, 143 N.E.2d 221 (1957), and Commonwealth v. Devlin, --- Mass. ---, ---, fn. 3, ^b 310 N.E.2d 353.

In accordance with the standards articulated in the Fatalo case, we, as a preliminary matter, consider the nature of the scientific machine involved. Like some other scientific devices, a spectrographic machine signifies its results by producing graphic patterns on a paper, patterns which are then the subject to analysis by the examiner. The spectrogram portrays three main parameters of speech: time (horizontal axis), frequency (vertical axis), and relative amplitude or intensity (degree of shading in the different time/frequency regions). Identification is attempted by both aural and visual means. The operator compares voices by listening to recordings of known and unknown voices, and by visually analyzing high-speed sound spectrograms of each voice. If he finds sufficient points of similarity, he will indicate that two voice exemplars were made by the same person.

The examiner thus draws his conclusions not only from a visual but also from an aural comparison. It can be said that, at least in these aspects and considering the relative importance of subjective reasoning by the examiner, the process bears a closer resemblance to polygraph testing than it does to fingerprint or handwriting analysis. In some important respects, however, the claims made in support of the polygraph are fundamentally different from those made for the spectrograph, and in those distinctions lies part of our reasoning in treating the two...