Lamar v. State, 471S106

• Decision Date: 25 May 1972
• Docket Number: No. 471S106,471S106
• Citation: 258 Ind. 504,282 N.E.2d 795
• Parties: , 57 A.L.R.3d 736 Ralph James LAMAR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 795

282 N.E.2d 795

258 Ind. 504, 57 A.L.R.3d 736

Ralph James LAMAR, Appellant, v. STATE of Indiana, Appellee.

No. 471S106.

Supreme Court of Indiana.

May 25, 1972.

John G. Bunner, Evansville, for appellant.

Theo. L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of voluntary manslaughter and was sentenced to imprisonment for not less than two nor more than twenty-one years and disfranchised for two years. At the trial, the jury, over objection of the defendant, was permitted to hear a tape recording of his in-custody interrogation by police officers which took place at the police station on the morning following the homicide. The basis for defendant's objection was that a proper foundation for the recording had not been laid.

We have previously held sound recordings to be admissible upon proper identification and authentication. Sutton et al. v. State (1957), 237 Ind. 305, 145 N.E.2d 425. In 1970, in the case of Schmidt v. State (1970), Ind., 265 N.E.2d 219, rehearing denied March 23, 1971, Ind., 267 N.E.2d 554, the admissibility of tape recordings was not challenged per se, but it was argued that since the tapes did not reflect the required Miranda warnings, while otherwise reflecting all of the proceedings, the testimony of the police officer that such warnings were given was unbelievable and that the tapes should, therefore, be excluded. We there held that the question of whether or not the required warnings were given was merely one upon which there was a conflict in the evidence and not within the province of this Court to determine. We further held that the inaudibility of small portions of the tapes did not render them inadmissible, since it could be determined that such inaudibility detracted very little, if any, from their total content.

Defendant, relies upon the early case of Solomon v. Edgar (1955), 92 Ga.App. 207, 88 S.E.2d 167, wherein the court established the following seven requirements for proper foundation:

(1) It must be shown that the mechanical transcription device was capable of taking testimony.

(2) It must be shown that the operator of the device was competent to operate the device.

(3) The authenticity and correctness of the recording must be established.

(4) It must be shown that changes, additions, or deletions have not been made.

(5) The manner of preservation of the record must be shown.

(6) Speakers must be identified.

(7) It must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress.

Additionally, the defendant asked that we impose an eighth requirement, namely a showing that the mechanical transcription device does not contain matter otherwise not admissible into evidence.

Improved methods of obtaining, preserving and presenting competent evidence, of whatever type, should not only be sanctioned but encouraged as well. In the process, we may not lose sight of fundamental safeguards, but neither should we sacrifice the advantages available to us through scientific and technological progress to the preservation of traditional rules that may have outlived their usefulness. Our mission is to find the truth. Having recognized that sound recordings can assist us in our quest, how do we obtain maximum benefit from them? Our first concern is with authenticity and correctness. In reviewing the rules laid down in Solomon v. Edgar (supra) it is immediately apparent that numbers 1, 2, 4, 5 and 6 are merely methods of assuring number 3. If the authenticity and correctness of the transcription can be better or more easily established by other methods, they should be utilized; and if any of the methods formerly utilized are in fact unnecessary, they should no longer be required. Solomon v. Edgar (supra) was decided in 1955. Without reflecting upon the complexities of tape recording devices or their degree of proficiency at that time, they are in common use today, relatively simple of operation and heavily used and relied upon for innumerable purposes. The tape speaks for itself with regard to its audibility. If it is of adequate quality in this regard, it is immaterial how it became so; and there is no more reason for inquiring into the specifications of the device which recorded it and the capabilities of the person who operated it than there would be to make similar inquiries concerning the camera, the film, developing and printing processes and the technician who produced a photograph before admitting it into evidence. All that is required is a showing that the photograph is an adequate representation of that which is intended to be portrayed. We see no reason for requiring more of a sound recording.

Rules 4 and 5 from Solomon v. Edgar (supra) are essentially the same, the purpose of requiring the manner of preservation to be shown being to assure that no changes, additions or deletions have been made. These questions may be adequately resolved by conforming to our 'chain of custody' rules as laid down in Graham v. State (1970), Ind., 255 N.E.2d 652 and modified in Guthrie v. State (1970), Ind., 260 N.E.2d 579.

'* * * where as in the case of seized or purchased narcotics, the object offered in evidence has passed out of the possession of the original receiver and into the possession of others, a chain of possession must be established to avoid any claim of substitution, tampering or mistake, and failure to submit such proof may result in the exclusion of the evidence or testimony as to its characteristics.' Graham v. State (supra). 255 N.E.2d at 656.

'* * * Need the evidence be excluded merely because there is a possibility, regardless of how remote that possibility is, that the evidence may have been tampered with?

* * * Needless to say, extreme care is required in such a situation to insure that the composition of the evidence is not altered.' Guthrie v. State (supra). 260 N.E.2d at 583.

'* * * The question was simplified in the Graham case because there was a clear break in the chain for a six day period. However, where as here, the State has introduced evidence which strongly suggests the exact whereabouts of the evidence, the issue becomes one of probabilities.

Appellee has cited several cases the holdings of which indicate that all possibility of tampering need not be excluded; upon reasonable assurance that the exhibit has passed through the various hands in an undisturbed condition its admission is proper and any remaining doubts go to its weight only. * * * We believe such a rule is well grounded in logic and reason.' Guthire v. State (supra). 260 N.E.2d at 584.

As to rule number 6 from Solomon v. Edgar (supra), we agree that the speakers should be identified. It would be preferable that such identification be determinable from the tape itself, but we do not agree with the defendant's contention that this should be required. Keeping in mind that our concern is with authenticity and correctness, it is readily apparent that it may become necessary or advisable to call one or more of the participants to testify for impeachment purposes; but we do not perceive any other reason why the identity of such persons would be relevant. For this purpose, it would be immaterial how their identity is made known.

Solomon (supra) rule number 7, requiring a showing that the testimony elicited was freely and voluntarily made, without any kind of duress, is no different than that of long standing with respect to the introduction of inculpatory statements or writings. We would add to it, of course, the requirement that it be shown that any waiver of the declarant's constitutional rights was voluntarily, knowingly and intelligently made. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Again, it would be greatly preferred for warnings, acknowledgments and waivers to be reflected upon the tape as well as by the customary documents signed by the declarant and the witnesses. Such procedure gives additional protection to both the accused and the State, and the benefits to be derived therefrom would seem greatly to outweigh the inconvenience, which appears to be but slight.

The defendant's purposed eighth rule, i.e. a showing that the mechanical transcription device does not contain matter otherwise not admissible into evidence, is sound and has been recognized in other jurisdictions. Although it was not determinative of the case, in State v. Meyer (1951) 37 Wash.2d 759, 226 P.2d 204, a case wherein the appellant objected to the introduction into evidence of a typewritten transcription of a sound recorded interview, the court there said '* * * We recognize the seriousness of the question raised with reference to those parts of the interview which made reference to the commission of the offense and to appellants. The court should have required respondent to segregate those parts of the interview and should not have permitted their introduction in evidence. * * *.' In Commonwealth v. Bolish (1955), 381 Pa. 500, 113 A.2d 464, the court after first holding tape recordings to be admissibe when a proper foundation is made, reversed because the tape contained material that was inadmissible and prejudicial. A like result was had in Leeth v. State (1951), 94 Okl.Cr. 61, 230 P.2d 942. Assuming it to have been mechanically possible, these unfortunate situations could have been averted by a prior editing by the court so that the jury would have heard only the admissible portions, together with a proper instruction as to why portions had been deleted, that it should not speculate nor make any determination as to the reason for such deletions and that it should draw no inferences therefrom nor consider the fact of such deletions in its deliberations. This, in fact, was done in the case at bar. We are not unaware of numerous cases from other jurisdictions that have held sound recordings admissible, notwithstanding...