Flaherty v. State

• Decision Date: 01 October 1973
• Docket Number: No. CR,CR
• Citation: 500 S.W.2d 87,255 Ark. 187
• Parties: Claude Earl FLAHERTY and Gene Whipple, Appellants, v. STATE of Arkansas, Appellee. 73-70.
• Court: Arkansas Supreme Court

Page 87

500 S.W.2d 87

255 Ark. 187

Claude Earl FLAHERTY and Gene Whipple, Appellants, v. STATE of Arkansas, Appellee.

No. CR 73-70.

Supreme Court of Arkansas.

Oct. 1, 1973.

Rehearing Denied Nov. 5, 1973.

Franklin Wilder, Fort Smith, for appellants.

Jim Guy Tucker, Atty. Gen., by James W. Atkins, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

The appellants were charged and convicted of operating a gambling house in violation of Ark.Stat.Ann. § 41-2001 (Repl. 1964). The jury assessed a one year penitentiary sentence for each of them. For reversal of the judgment, the appellants first contend there was no gambling conducted at appellant Flaherty's home and, therefore, the evidence was insufficient to support a conviction for operating a gambling house.

The state adduced evidence that for approximately three weeks the police had observed Whipple driving Flaherty's car during which time he was picking up and delivering parlay cards. The police, with a search warrant, went to Flaherty's residence where they were invited in. The search warrant was exhibited and both appellants, the only occupants, were placed under arrest. The officers then discovered parlay cards, betting slips, racing forms, and a stack of football schedule sheets. For approximately one hour, an officer answered and tape recorded all incoming telephone calls. These calls were mostly from people placing bets on football games and horse racing. The callers would identify themselves either by first name or initials. Some would ask to speak to Earl (appellant Flaherty) and some would ask for Whip (appellant Whipple). During this hour two individuals appeared at the residence and upon police inquiry it was determined they had in their possession a weekly football schedule. As a result of the raid the police confiscated and introduced into evidence one telephone listed in Flaherty's name and another in a relative's name; a small indexed code book containing unidentified numbers; envelopes containing a large quantity of what appeared to be betting slips with 'numbers' on them; numerous parlay cards and parlay card stubs; a roll of money wrapped with a rubber band ($1,174); a sack containing 121 weekly current football schedule sheets; racing forms; and an envelope with telephone bills. The appellants did not testify.

On appeal we review that evidence which is most favorable to the appellee with all reasonable inferences deducible therefrom and we must affirm if there is any substantial evidence to support the finding of the trier of the facts. Miller v. State, 253 Ark. ---, 490 S.W.2d 445 (1973). In the case at bar, we are of the view that the evidence was amply substantial to sustain the findings of the jury.

The argument is further made that Flaherty's home could not constitute a gambling house since he had lived for many years in a nice residential area and his neighbors testified they had observed no gambling activities about his premises. This was a fact question to be considered by the jury. Furthermore, in Liberto & Mothershed v. State, 248 Ark. 350, 451 S.W.2d 464 (1970), we said 'the keeping of a gambling house is not limited to a place where those engaged in gambling find shelter.'

Appellant next asserts that the admission of the telephone recordings into evidence was error. The police officer placed a suction cup, or recording device, on the mouthpiece of the telephone receiver. Whenever the phone rang the conversation was recorded. The portable cassette tape recorder was admitted into evidence and the recorded conversations, between the officer and the callers placing bets, were heard by the jury. The appellants contend that the recordings were inadmissible hearsay and in violation of the Federal Communications Act, 47 U.S.C. § 605, and further the introduction of the evidence denied appellants their Sixth Amendment right to confront witnesses against them. We cannot agree.

In Liberto & Mothershed v. State, supra, the officer answered incoming telephone callers placing bets. We approved the admissibility of the officer's testimony as being permissible to show that the out-of-court statement '* * * is not hearsay if it is given in evidence for the purpose of proving that the statement was made, providing that the purpose is otherwise relevant in the case at trial. The statements here given were obviously relevant to show the use of the telephone numbers involved.' Similarly, in the case at bar, the officer could have testified as to the conversations he heard since such testimony is not introduced to support the truth of the matter asserted, but only to show that such statements were made. On the same basis, the tape recorded conversations were admissible.

Appellants also assert that the tape recording was inadmissible as being in violation of Federal Communications Act, 47 U.S.C. § 605. We examine this contention in the light of 18 U.S.C. § 2510 et seq., which is the wire interception provision of the Omnibus Crime Control and Safe Streets Act. That section is the 1968 amendment to 47 U.S.C. § 605. In the case at bar, we consider § 2510 et seq., controlling. The question then becomes whether the officer at the Flaherty residence improperly 'intercepted' the communication in violation of 18 U.S.C. § 2511 which would render the contents of the communication inadmissible in a court of law as required by 18 U.S.C. § 2515. 'Intercept' is defined in § 2510 as meaning the 'aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.' The authorities are to the effect that testimony repeating the contents of police answered telephone calls during a valid search is admissible in evidence pursuant to either § 605 or § 2511.

In United States v. Pasha, 332 F.2d 193 (7th Cir. 1964), a government agent was assigned to answer calls to an apartment during the search. The contents of those calls were testified to during defendant's prosecution for failure to pay an occupational tax on gambling. The testimony was held relevant, not hearsay, and admissible as circumstantial evidence of the type of operations conducted on the premises. Further, the officer's impersonation of defendant was held not to constitute an 'interception' under 47 U.S.C. § 605. See, also, Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957).

The 1968 enactment of 18 U.S.C. § 2511(2)(c) provides:

'It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.'

As we construe this section, it cannot be said that the officer in the case at bar illegally intercepted the telephone communications.

A most recent case on this subject is State v. Vizzini, 115 N.J.Super. 97, 278 A.2d 235 (1971). There the defendant was convicted of permitting his premises to be used to conduct a lottery. During a valid search of defendant's home an induction coil (like the one used in the case at bar) was placed on the phone to record incoming calls. The callers placed bets. The defendant objected, as here, to the introduction of the tape at trial. The New Jersey court held that no interception had taken place, making the same distinction that was utilized in interpreting the old act 47 U.S.C. § 605, supra:

'Castellano's (the police officer) acquisition of the contents of the telephonic communications resulted from his answering the telephone when it rang, not 'through the use of any electronic, mechanical or other device.'

'In answering the telephone when it rang, he did not 'intercept' the telephone calls in violation of the federal act.' (See Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957.)

Similarly, in the case at bar, the taped recordings were admissible since the incoming calls were not intercepted and recorded in violation of any federal act. We need not deal in fine distinctions as to the meaning of the word 'intercept,' since 18 U.S.C. § 2511(2)(c), supra, clearly states that no illegal interception takes place when an officer is a party to the communication acting under color of law. The device on the telephone receiver recorded conversations the officer legally heard and could have testified to from memory.

Nor can we agree with appellants' argument that presenting the taped conversations to the jury was a violation of their Sixth Amendment right to confront the witnesses against them. The officer, who took the incoming calls and recorded them, testified and was subjected to cross-examination. As previously discussed the tapes reproduced the voices of those placing bets and were admissible to show that such statements (calls) were made. We perceive no violation of the confrontation clause.

Appellants further contend that the trial court erred in refusing their instruction which would allow the jury to consider a conviction under Ark.Stat.Ann. § 41-2003 (Repl.1964) (misdemeanor statute for keeping a gaming device). Appellants assert that they were entitled to this instruction because keeping a gaming device is a lesser included offense within the alleged offense of operating a gambling house.

The intricacies of lesser offenses in Arkansas were recently explored at length in Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972), and need not be repeated here. There we said that in order to find error in the refusal of the trial court to give a requested lesser offense instruction it must appear that the offense in the requested instruction was one necessarily contained within the higher offense and the evidence showed the existence of all the elements of the lesser offense. So in Caton, supra, it was not error to refuse a shoplifting...