Gomien v. State
| Citation | 172 So.2d 511 |
| Decision Date | 26 February 1965 |
| Docket Number | No. 64-628,64-628 |
| Parties | Donald S. GOMIEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Whitman & Knott, Miami, for appellant.
Earl Faircloth, Atty. Gen., and John Smith, Asst. Atty. Gen., for appellee.
Before TILLMAN PEARSON, HORTON and HENDRY, JJ.
Appellant, a former police officer of the City of Miami, was tried in the Criminal Court of Record for Dade County on a two count information charging him with extortion and accepting unauthorized compensation. The defendant entered a plea of not guilty to each of the charges and waived jury trial. Upon trial, he was found not guilty on the count charging extortion and guilty on the count charging him with accepting unauthorized compensation. 1 He was adjudged guilty and sentenced for a term of one year in the State Penitentiary. The defendant appeals from this final judgment and sentence.
The evidence, as shown by the record, reveals that the defendant and a fellow police officer of the City of Miami, while acting within the scope of their employment, entered a bar, known as the Barbaran Night Club on March 15, 1964 at approximately 5:10 A.M. The defendant arrested two patrons for being drunk and the manager, Sergio Niebla, for serving beer after hours. Niebla, upon being informed of their arrest, telephoned his employer, Kay Smith, and apprised him of the arrests. Smith promptly went to the Barbaran, where he found the officers and the parties they had placed under arrest. He discussed the matter with the officer who had accompanied the defendant on his mission. He also made a telephone call to a detective at the police station and discussed the arrest. Niebla testified that the defendant had asked him for $150, and that he had promised it to the defendant. After these conversations, the defendant and his fellow officer informed these people that they were not under arrest.
Nothing further was heard from the defendant until one week later when he went back alone to the Barbaran Club at between 2:00 and 2:30 A.M., dressed in his police uniform. He was asked by Niebla what he wanted. His answer was, 'I come for my money.' Niebla gave him One Hundred Dollars in Twenty Dollar bills which had been marked and given to him by two undercover investigating officers of the Police Department.
Further in anticipation of the defendant's visit, the undercover police officers set up a tape recording machine in the premises, and arranged with Niebla to have the transmitter and microphone concealed on Niebla's person. He was instructed how to turn the transmitter on so as to record the conversation that was to take place at the time the money was paid over to the defendant. One Hundred Dollars in Twenty Dollar bills was given to the defendant outside the club only a few feet from where the recording machine and the undercover officers were concealed. The tape recording was made of the conversation between Niebla and the defendant. As soon as the defendant had received the money from Niebla, the undercover police officers asked him for it. The defendant put his hand in his pocket, got the money and surrendered it to the officers. The tape recording was preserved and used as evidence in the trial of the defendant. The following is a transcript of such recording of the conversation between the defendant and the witness, Niebla, which was admitted in evidence:
I told him the same thing.'
'Mr. NIEBLA: 'That car is customer.'
Appellant asks reversal on two grounds. His first contenting is that the trial court erred in admitting in evidence the tape recording. The second contention questions the sufficiency of the evidence to sustain an adjudication of guilty of the charge of accepting unauthorized compensation.
Appellant argues in support of his first contention that it was error to admit the tape recording in evidence because the state failed to lay a proper predicate for its admission.
The question of tape or other mechanical sound recording as admissible evidence and the extent of its probative value have never previously been squarely considered by the courts of this state. A discussion in regard thereto seems appropriate.
There Florida Supreme Court first recognized sound motion picture film as admissible evidence in Gulf Life Ins. Co. v. Stossel, 131 Fla. 127, 179 So. 163 (1938) where Justice Terrell stated:
The next occasion upon which this question was considered was in Padgett v. State, Fla.1951, 53 So.2d 106. There, however, the court was not concerned with the general question of the admissibility of a sound recording, but treated this sound recording as an exhibit, and dealt with the substantive material contained in the recording and its use for impeachment purposes. The court did, however, go on to state:
'Even if it [recording] had been offered in proper order as rebuttal testimony for impeaching the testimony of defense counsel it would have been inadmissible as defense counsel had not testified regarding the recording.' [Emphasis supplied.] 53 So.2d at 109 .
The court evidently gave as an additional reason for failing to admit the recording into evidence, the failure to authenticate the recording and the failure to lay a proper predicate as required by Gulf Life Ins. Co. v. Stossel, supra.
The second district in Wilson v. Rooney, Fla.App.1958, 101 So.2d 892, 897 made an off-hand reference to the admissibility of sound recordings:
'If the wire recording were of telephone conversations between the plaintiff and the defendant offered in evidence with the proper degree of authenticity, of course he should have allowed it.'
The result of these cases is that the sound recording is admissible in evidence, 2 provided that a satisfactory degree of authenticity has been achieved. These cases do not, however, offer any guidelines as to what is necessary in order to satisfy the requirement of authenticity. Accordingly, we must look to our sister jurisdictions for assistance.
The Federal Court of Appeals for the District of Columbia set out a guideline as to the necessary preliminary steps which must be shown in order to...
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Herrera v. State, 87-893
...4th DCA 1985), cause dismissed, 500 So.2d 1341 (Fla.1987); State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982); Gomien v. State, 172 So.2d 511 (Fla. 3d DCA 1965). Cf. Springer v. State, 429 So.2d 808 (Fla. 4th DCA 1983) (admission of almost totally inaudible tape reversible error); Cart......
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Rodriguez v. State, 80-704
...Furthermore, no in camera inspection of the recordings to eliminate prejudicial and irrelevant material took place. Gomien v. State, 172 So.2d 511 (Fla. 3d DCA 1965). The state, however, is correct in pointing out that Rodriguez was required to renew pretrial objections to contested evidenc......
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Parnell v. State
...fails to indicate any error on the part of the trial judge. His ruling is in accord with this court's opinion in Gomien v. State, Fla.App.1965, 172 So.2d 511, wherein it was concluded that in order for a tape recording to be admissible the State must show to the trial court's satisfaction t......
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State v. Harris
...these factors in admitting sound recordings into evidence. People v. Vetri, 178 Cal.App.2d 385, 2 Cal.Rptr. 795 (1960); Gomien v. State, 172 So.2d 511 (Fla.1965); People v. Frison, 25 Mich.App. 146, 181 N.W.2d 75 (1970); State v. Myers, 190 Neb. 146, 206 N.W.2d 851 (1973); State v. Driver, ......