Hill v. State

• Decision Date: 30 June 1987
• Docket Number: 6 Div. 166
• Citation: 516 So.2d 876
• Parties: James HILL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 876

516 So.2d 876

James HILL v. STATE.

6 Div. 166.

Court of Criminal Appeals of Alabama.

June 30, 1987.

Rehearing Denied Sept. 8, 1987.

Certiorari Denied Dec. 4, 1987

Alabama Supreme Court 86-1577.

Roy Brown, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was charged with murder in violation of § 13A-6-2, Code of Alabama (1975). He was found guilty of manslaughter and sentenced to ten years' imprisonment.

The victim, the appellant's wife, died as a result of a massive blow to her head with a baseball bat which opened her skull and bruised her brain. Although the appellant admitted throwing the baseball bat at his wife with the intention of hitting her, he testified that his wife had previously been looking for her gun under her pillow and was approaching him with a butcher's knife before he hit her. However, no gun or knife was found at the scene of the crime.

I

The appellant argues that the trial court erred in allowing a transcribed copy of his tape recorded statement into evidence, because, according to the best evidence rule, the tape recording itself should have been admitted despite the fact that it was partially inaudible. Further, he maintains that the recording shows that the appellant failed to voluntarily waive his Miranda rights.

The appellant initially contends that because "approximately half" of his answers were inaudible on the tape, the statement was "highly suspect and prejudicial" and should have been disallowed. However, he also argues that if the trial court was correct in allowing the statement, the tape recording should have been admitted rather than the transcribed statement made from the tape. The appellant maintains that transcribing the tape allowed "additional human error to be made," but fails to allege that any error was in fact made.

"The following are the most frequently stated elements that must be shown in order to lay a proper foundation for the admission of such recordings:

"(1) authentication either by the person who made the recording or [a person] who can testify to its accurate reproduction of the relevant sounds,

"(2) testimony that the recording is without any changes,

"(3) testimony that the recording has never been out of the possession of the person in charge of same,

"(4) testimony as to the accuracy of the machine which made the recording, and

"(5) testimony identifying the voices recorded.

"In deciding upon the admissibility of a sound recording, the appellate courts have set out the following procedural rules that should be followed by the trial courts:

"1. The trial court should first have the recording played away from the hearing of the jury and allow parties to make objections.

"2. If the recording contains illegal or irrelevant evidence, it should be rejected unless the illegal or irrelevant portions can be erased from the tape or kept from the jury by stopping and starting the playing instrument.

"3. If the recording is inaudible in portions likely to contain material statements, the record should be rejected if it is the only evidence as to the statements but that it should be admitted if corroborative of testimony of parties who were present when the recording was made."

C. Gamble, McElroy's Alabama Evidence (3d ed. 1977), § 123.02.

"The fact that a recording is partially inaudible in those portions likely to contain material statements does not require its exclusion from evidence unless the recording is the only evidence offered as to the statements." Austin v. State, 354 So.2d 40, 43 (Ala.Cr.App.1977), 354 So.2d 40 (Ala.1978). See also Boulden v. State, 278 Ala. 437, 179 So.2d 20, 33 (1965) (no reversible error in admitting transcriptions of tape recordings, where the trial judge played the tapes outside the presence of the jury and decided that they were sufficiently audible to be played and, further, that the appellant could not have been hurt by the playing of the tapes in light of the testimony of the officer to whom he confessed.) In the case sub judice, the State introduced the testimony of Sergeant Robert Walker, who had taken the appellant's statement and was present during its entirety. He testified to the substance of the appellant's statement and to the accurate depiction of the tape by the transcript. Both the prosecutors and the defense counsel noted, after the tape recording was played outside the presence of the jury, that they could only hear about half of the tape through the microphones in the courtroom. The trial judge admitted the transcript into evidence, stating that he could not detect any difference in the transcript and the tape. The trial judge also stated he could hear the tape "fairly well," but the tape would not adequately transmit over the court speakers. However, the trial court offered to also play the tape for the jury, but the defense counsel refused the offer.

The appellant's argument concerning the best evidence rule has also been decided adversely to the appellant.

"The best evidence rule is applicable only to writings and does not apply to tape recordings. United States v. Conway, 507 F.2d 1047 (5th Cir.1975); United States v. Duffy, 454 F.2d 809 (5th Cir.1972); Annot. 58 A.L.R.3d 598, Section 7 (1974). 'Although it is sometimes said loosely that a party must produce the best evidence which the nature of the question admits, there is no rule of law that is so all encompassing.' C. Gamble, McElroy's Alabama Evidence, Section 212.01 (3rd ed. 1977). 'Where a tape recording of accused's confession has been made, the best evidence does not require that the recording be produced in court.' 23 C.J.S. Criminal Law § 833 (e) (1961).

"However, once the State attempted to show that the confession was in writing, 'then the best evidence rule governed the question of identifying the writing setting forth the confession.' Bennefield v. State, 281 Ala. 283, 285, 202 So.2d 55 (1967); Gordon v. State, 252 Ala. 492, 493, 41 So.2d 610 (1949); Elkins v. State, 250 Ala. 672, 674, 35 So.2d 693 (1948)."

Hawkins v. State, 443 So.2d 1312, 1314 (Ala.Cr.App.1983).

The officer, who was present during the appellant's statement, in the case sub judice, as in Hawkins, could and did authenticate the typewritten transcript by testifying that the transcript accurately reflected the conversation. Id. See Watkins v. State, 495 So.2d 92, 97-98 (Ala.Cr.App.1986), for a discussion of the methods by which the accuracy of a statement transcribed from a tape recording may be established.

This issue was addressed in Kennedy v. State, 472 So.2d 1092, 1099-1100 (Ala.Cr.App.1984), aff'd, 472 So.2d 1106 (Ala.1985), cert. denied, Kennedy v. Alabama, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985), wherein it was stated:

" 'The best evidence rule has as its basic justification the prevention of fraud.... A second justification for the rule is that oral testimony simply is not as reliable as the written word.' C. Gamble, McElroy's Alabama Evidence, Section 212.02 (3rd ed. 1977). Neither purpose of the rule was violated here.

"....

"Even if the admission of the transcript violated the best evidence rule and constituted error, such error was harmless and did not prejudice [the appellant].... [W]e are convinced that the jury's verdicts, both at the guilt and sentencing phases of the trial, 'would have been the same had the tape recording been admitted into evidence instead of, or in addition to, the written transcription of that recording.' "

The appellant's argument that where a tape is transcribed, it becomes subject to human error, does not address the transcript's admissibility, but rather the weight that it would be given by the jury. Cf. Donahoo v. State, 505 So.2d 1067 (Ala.Cr.App.1986) (edited videotape).

The appellant also maintains that the tape recording demonstrated that he did not voluntarily waive his Miranda rights. The appellant refers to a portion of the tape in which his responses to Sergeant Walker's questions concerning his Miranda rights were inaudible. However, Sergeant Walker testified that the appellant was nodding his head affirmatively when asked if he understood his rights and whether he wished to make a statement. Moreover, the record indicates that at the end of the statement, Sergeant Walker questioned the appellant as follows:

"Okay, just answer these questions for me. I've got three statements for you, okay? Was this statement made on your own free will.

"His [the appellant's] answer: On my own free will.

"And you [Sergeant Walker] asked: 'Did I promise you any reward or hope of reward to make this statement?'

"[Answer: No, you didn't promise me anything.]

"[Sergeant Walker]: All right, sir. Answer: My right, sir. I don't have to answer. I can be silent if I didn't have any lawyer, well, they would just get one. Question: The court's would appoint you one? Answer: Appoint me one.

"Question: Right, sir. Okay."

Thereafter, the trial court ruled that the statement was made voluntarily. The trial court found:

"Well, the Court, after listening to it, the totality of it, the Court is of the opinion that it was voluntary because he apparently was very well aware of his rights, even recited his rights very cogently at the very back of the statement and listening to the tone of the tape the manner in which he spoke it appeared to be a willingness to talk and he was advised of his rights and since there was such a willingness to talk and responses he made the Court would determine that this was a voluntary statement and was knowingly given at the time it was given, so I'll overrule your motion to suppress at this time."

The appellant alleges error in that he did not unequivocally answer "yes."

"While all extra-judicial confessions are prima facie involuntary and can be rendered admissible only by showing that 'an express and affirmative' waiver was given, there is no set pattern or manner for a waiver. Sullivan...