Cornett v. State

• Decision Date: 01 July 1983
• Docket Number: No. 1081S284,1081S284
• Citation: 450 N.E.2d 498
• Parties: Glenn R. CORNETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 498

450 N.E.2d 498

Glenn R. CORNETT, Appellant, v. STATE of Indiana, Appellee.

No. 1081S284.

Supreme Court of Indiana.

July 1, 1983.

Debra K. Luke, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Glenn R. Cornett was convicted of Murder at the conclusion of a jury trial in Lake Superior Court on March 4, 1981. The trial court sentenced Cornett to life imprisonment. Cornett now appeals.

Three errors are raised on appeal, concerning: 1) whether the trial court erred by admitting into evidence the results of spectrographic analysis; 2) whether the trial court erred by allowing a surprise witness to testify at trial; and, 3) whether the trial court failed to maintain an impartial and neutral position during the trial.

The evidence most favorable to the State reveals that on June 6, 1977, about 7:00 a.m., Hazel LaBona heard a knock on her door and a cry for help. Upon investigation, Mrs. LaBona found her neighbor, Mrs. Flora Isakson, in a badly beaten condition. The police arrived pursuant to a call made by Mrs. LaBona. The Isakson residence had been ransacked and Mr. Isakson's body was discovered in a bedroom. A gunshot wound to the neck had caused his death.

Approximately three years later, defendant Cornett's ex-wife, Phyllis Cornett, informed the police about the murder. Subsequent testimony revealed that Glenn Cornett, Phyllis Cornett, and William Shields, along with three other people, decided one night to burglarize the Isakson residence. The group drove in one car to the Isakson home. Once there, Glenn Cornett left the car. After a few minutes, Shields also left the car and approached the front of the house. As Shields entered the front door, Mrs. Isakson attempted to run past him. Shields and Cornett pushed Mrs. Isakson back into the house. Cornett smacked her a couple of times and then shot her once. Phyllis Cornett then entered the house and both Phyllis and Shields heard another shot from a rear portion of the residence. Phyllis walked down a hallway and saw a man's foot in one of the bedrooms. Shields saw Mr. Isakson lying partially on a bed, with part of his foot extending past the bed. After Cornett found some money in the house, the group finally drove away.

I

Defendant Cornett argues that the trial court committed reversible error when it allowed an expert on voice spectrography to testify at trial. The defendant specifically argues that spectrographic analysis has not gained general acceptance in the scientific community to which it belongs, and any introduction of such evidence constitutes reversible error.

Phyllis Cornett was one of the witnesses who testified for the State about the defendant's involvement in the murder. After the State rested, the defense presented its case-in-chief. One of the witnesses called by the defense was attorney Calvin K. Hubbell. Mr. Hubbell testified that on September 18, 1980, Phyllis Cornett telephoned his office about 5:00 p.m. Hubbell recorded this conversation and it was played in open court. On the tape, the woman identified as Phyllis Cornett stated that she did not know anything about the murder. Hubbell testified that he had talked with Phyllis on a number of occasions when he represented her in another matter, and that he recognized her voice. Phyllis Cornett, however, denied under oath that she had made that phone call to Hubbell.

On rebuttal, the State introduced evidence by two voice spectrography experts. After listening to the original tape and a voice exemplar provided by Phyllis Cornett, and after examining the spectrograms produced by the tapes, both experts concluded that Phyllis Cornett did not make the phone call to Calvin Hubbell. The defense, in turn, introduced the testimony of another expert witness who stated that spectrographic analysis was not reliable and that fraud was being perpetrated on the courts of this country every time it was admitted into evidence.

This is a case of first impression in this jurisdiction. We have in the past allowed the introduction of voice exemplars, holding that court-ordered submission to such a "purely physical test" does not violate the privilege against compulsory self-incrimination. Allen v. State, (1981) Ind., 428 N.E.2d 1237, 1239; Frances v. State, (1974) 262 Ind. 353, 358, 316 N.E.2d 364, 366. Spectrographic analysis of voices, however, is far different from merely providing a voice exemplar. Basically, voice spectrography is founded on the premise that voices, like fingerprints, are unique to individuals. Some experts in the past have called the results of this scientific study "voiceprints", a term coined by scientists working for Bell Telephone Laboratories. C. Gray & G. Kopp, Voiceprint Identification, Report Presented to Bell Telephone Laboratories, Inc. (1944), footnoted in William R. Jones, Evidence vel non: The Non Sense of Voiceprint Identification, 62 Ky.L.J. 301, 303. Courts and experts generally avoid use of the term "voiceprints" because it may potentially lead to an unwarranted association with fingerprint evidence, which has repeatedly been shown to be undeniably accurate in the identification of individuals. See United States v. Williams, (2d Cir.1978) 583 F.2d 1194, 1197, f.n. 5, cert. denied, (1979) 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77.

The theory behind identification by the voice spectrography method is that people have different vocal cavities and articulators. Thus, one expert's theory of voice uniqueness was based on the way "the articulators interacted with one another and the vocal cavities. The articulators include the lips, teeth, tongue, soft palate, and jaw muscles. The vocal cavities are the throat, nose, and the two oral cavities formed in the mouth by the positioning of the tongue." People v. Rogers, (1976) 86 Misc.2d 868, 874, 385 N.Y.S.2d 228, 233. Since every person has these unique anatomical characteristics, some experts feel that the sound produced through the interaction of these features should lead to a means of identifying people by their voices alone.

The spectrographic machine is a device which receives sound vibrations and records the visual image of these vibrations by a series of patterns on paper. This paper is mounted on a rotating drum and the pattern is burned on the paper. The display of the graphic patterns produced by this method is called a spectrogram. The graph represents a tri-dimensional plane with time shown on the horizontal axis, frequency shown on the vertical axis, and the relative amplitude of the voice's intensity displayed by the darkness of the lines.

Malcolm Hall, a detective sergeant in the Michigan State Police Department, was one of two witnesses who testified on behalf of the State. Sergeant Hall stated that he was assigned to the Voice Identification Unit of the Forensic Science Laboratory. Hall received a Bachelor of Science Degree in Sociology and a Master of Arts Degree in Audiology and Speech Science. He had also completed the curriculum studies for a Ph.D. at the time of trial. Hall belonged to the Accoustical Society of America and was currently president of the International Association of Voice Identification. This latter organization was founded in 1972 and was made up of members who support voice spectrography. Hall had written various articles, including one published in Human Communication (University of Alberta, Edmonton) and his Master's Thesis was published through the Acoustical Society of America. Hall had previously testified before state and federal courts, and also before the Queen's Court in Ontario.

Sergeant Hall listened to the original tape, made a copy, and then copied it onto the sound spectrograph machine in order to produce a spectrogram. Phyllis Cornett then made a recording, speaking the same words as the unknown caller, and a spectrogram was produced from this tape. Hall testified that experts in voice spectrography listen to the two tapes (the original recording and the taped exemplar) and then compare the two spectrograms. Thus, there is both an aural and visual comparison. Hall concluded that the known voice (Phyllis Cornett) and the voice on the telephone did not belong to the same person.

Hall talked about the intravariables and intervariables involved in voice spectrography. Intravariables are the changes found within one individual's voice. Some factors which may alter a person's voice are fatigue, happiness, unhappiness or illness. The intervariables are differences found between the voices of two individuals. Unlike fingerprints, which remain constant, spectrograms thus show changes in the same voice. In addition, the spectrogram is not the primary evidence but a graphic means of examining the sounds produced. The supporting experts argue, however, that while intravariables are present, these changes are never greater than the intervariables. Thus, according to Hall, it is both possible to identify a voice and also tell the difference between two voices.

Hall stated that the process was as reliable as the criteria will permit and was generally accepted by those who work with voice spectrography and are familiar with its process. The drawbacks were that the recording of two individuals talking at the same time, or a speaker and such background noise as a baby crying or a dog barking, could not be examined by the above method. Hall admitted that a person's voice could be altered by stress, such as brought about by a criminal charge. Also, the time lapse between the recording of the two tapes could be a factor and there are always variances present in trying to reenact a phone conversation. Over ninety words were used from the tapes to make the positive elimination. Only 3% of the examinations result in either a positive identification or a positive elimination.

John A. McClung also testified for the State. His company engaged in consulting...