Loy v. State, CR
| Decision Date | 22 June 1992 |
| Docket Number | No. CR,CR |
| Citation | 832 S.W.2d 499,310 Ark. 33 |
| Parties | Michael Marvin LOY, Appellant, v. STATE of Arkansas, Appellee. 92-67. |
| Court | Arkansas Supreme Court |
Terri Harris, Hot Springs, for appellant.
Didi Sallings, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, Michael Marvin Loy, appeals his conviction for solicitation to commit first-degree murder by use of a homemade bomb and his sentence to a term of forty-two years. He asserts as grounds that it was reversible error for the circuit court to admit into evidence 1) an audiotaped conversation between Loy and an informant, and 2) a video depiction of certain demonstrations and a simulated explosion of the bomb. We hold that neither point has merit, and we affirm.
On March 9, 1991, at about 3:00 p.m., an informant, Donald Hurt, advised the Garland County Sheriff's Office that earlier that day he had been offered $5,000 by Loy to kill Charles McCoy using a homemade bomb. The matter was assigned to Lieutenant Larry Selig at the sheriff's office, who asked Hurt to wear a body microphone and record a discussion of the planned murder with Loy. Hurt agreed to do so. On that same day at about 5:30 p.m., Hurt met with Loy wearing a body microphone at the Food-4-Less parking lot in Hot Springs. The meeting was videotaped and observed by three members of the sheriff's department, including Lieutenant Selig. The body mike worn by Hurt allowed the conversation between Hurt and Loy to be monitored.
After the meeting, Hurt got out of the car carrying a paper sack, and Loy was arrested. Hurt then turned over the paper sack which contained the bomb to the sheriff's office. The bomb consisted of a glass jar, firecrackers, black gunpowder, and BB's.
The sheriff's office next enlisted the assistance of the Air Force Base explosives squad to disarm the bomb. When the squad attempted this, however, the bomb detonated. The resulting debris was recovered and sent to the F.B.I. in Washington, D.C., which rebuilt a similar bomb and exploded it under controlled circumstances. The bomb and three demonstrations of how it worked were videotaped by the F.B.I.
Loy was charged with solicitation to commit murder and criminal possession of explosives, although the possession charge was subsequently nolle prossed by the State. Prior to trial, he moved to suppress the audiotape of the conversation between Hurt and himself and also the F.B.I. videotape of the explosion. A hearing was held on the motions on September 26, 1991, and Loy was unsuccessful on both scores. The tapes were admitted into evidence at the ensuing trial by jury on October 17, 1991, and Loy was found guilty as charged and sentenced to forty-two years imprisonment.
Loy first contends that the audiotaped conversation between Hurt and himself was inaudible in several places and consequently was inadmissible because it was misleading and untrustworthy. He argues in conjunction with this point that the untrustworthiness was further proved by the fact that the prosecution tried to introduce a transcript of the tape after the tape was played to the jury. The circuit court refused to admit the transcript into evidence.
We have held that tape recordings are admissible "unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy." Hamm v. State, 301 Ark. 154, 157, 782 S.W.2d 577, 579 (1990); Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). We have also said that this is a matter within the trial court's discretion, and we will not reverse absent an abuse of discretion. Id.
In this case, the circuit court heard the tape recording at the hearing on Loy's motion to suppress and denied that motion. The tape was then played for the jury at trial. The prosecutor next attempted to introduce a transcript of the tape after the tape was played to facilitate the jury's understanding, and the court refused to admit it.
Loy's argument on appeal is premised largely on the colloquy that occurred between the prosecutor and Lieutenant Selig at trial outside of the presence of the jury:
....
This colloquy and the prosecutor's attempt to introduce the transcript are not sufficient, in and of themselves, to establish untrustworthiness of the entire tape. We do not agree that anytime a tape is inaudible in many places, this renders the intelligible portions of the tape inherently prejudicial and unreliable....
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