People v. Berkey

• Decision Date: 11 March 1991
• Docket Number: Docket No. 88641
• Citation: 467 N.W.2d 6,437 Mich. 40
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dennis Joseph BERKEY, Defendant-Appellee. 437 Mich. 40, 467 N.W.2d 6
• Court: Michigan Supreme Court

Page 6

467 N.W.2d 6

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dennis Joseph BERKEY, Defendant-Appellee.

Docket No. 88641.

437 Mich. 40, 467 N.W.2d 6

Supreme Court of Michigan.

March 11, 1991.

Rehearing Denied April 19, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., and Edward Reilly Wilson, III, Asst. Pros. Atty., Detroit, for the People.

Thomas J. Trenta, Bloomfield Hills, for defendant-appellee.

OPINION

PER CURIAM.

This is a murder case in which the trial court admitted into evidence some audiotapes that the victim recorded several months before her death. The tapes contain conversations with the defendant in this case, who was the victim's spouse.

The Court of Appeals reversed the defendant's convictions on the ground that the prosecutor had failed to offer sufficient evidence to authenticate the tapes. However, the Court of Appeals employed the incorrect standard for determining the authenticity of the tapes. Under Rule 901 of the Michigan Rules of Evidence, we are satisfied that the tapes were authenticated properly.

Therefore, we vacate the judgment of the Court of Appeals, and remand this case to that Court for consideration of the other issues raised by the defendant, including his remaining claims concerning the admissibility of the tapes.

I

On the morning of April 3, 1987, Theresa Berkey was found dead in her home. Her throat had been slashed.

At the time of her death, the victim had been involved in rancorous divorce proceedings with the defendant. ¹ Though an obvious suspect, the defendant could not be directly linked to the killing.

Eventually a confession was obtained from a woman named Donna Shudell, who was romantically involved with the defendant. According to Ms. Shudell, the defendant had attempted without success to find someone willing to perform a contract killing of his spouse. He then persuaded Ms. Shudell to do the deed. Though her nerve failed the first couple of times she was in the victim's house, ² she eventually committed the murder on April 2, 1987.

According to Ms. Shudell, the initial plan had been to fake a robbery. She therefore took some of the victim's property and tried to make the victim's house look as though a robbery had taken place. That plan began to fail even as the murder was being committed, since Ms. Shudell herself was cut during the struggle, leaving her own blood at the scene. ³ The backup plan was to pretend that Ms. Shudell had acted in self-defense, when attacked by the victim. However, neither of these stories could withstand much scrutiny, and Ms. Shudell soon told the police that she had killed the victim intentionally, at the defendant's behest.

Having promised to provide such testimony at the defendant's trial, Ms. Shudell was permitted to plead guilty of second-degree murder. She received an agreed-upon sentence of from ten to twenty years in prison.

A lengthy jury trial took place in December 1987. The defendant did not testify. ⁴ In arguing the case to the jury, the defendant's attorney characterized Ms. Shudell as an admitted liar who had killed the victim on her own, and had manufactured her incriminating story in order to secure a shorter sentence.

At the conclusion of the trial, the defendant was convicted, as charged, of first-degree premeditated murder and conspiracy to commit first-degree murder. M.C.L. Secs. 750.316, 750.157a; M.S.A. Secs. 28.548, 28.354(1). On each count, the defendant received a term of life in prison. ⁵

In an unpublished opinion, the Court of Appeals reversed the defendant's convictions and remanded the case for a new trial. ⁶ The Court later denied rehearing.

The prosecutor has applied to this Court for leave to appeal.

II

When the police began investigating the murder, they found in the victim's home approximately a dozen cassette tapes on which she had recorded conversations. Some were telephone calls. Others were conversations that had taken place at her home. A police officer later testified that the victim had a device attached to her phone that permitted the recording of telephone calls. No one knows how she managed to record conversations in her home.

The only person who knew about these tape recordings was a neighbor named Carol Fawaz. In November 1986, the victim asked Ms. Fawaz to listen to a couple of tapes. One had evidently been recorded shortly before Ms. Fawaz heard it replayed. Ms. Fawaz did not know when the other one was recorded, but the police thought it was recorded in July 1986.

The prosecution selected two tapes to play for the jury. The tape that was made in November 1986 begins with a telephone conversation between the victim and the defendant, concerning the defendant's visitation with the couple's children. Later, the tape contains the defendant's arrival at the victim's house to pick up the children for a midweek visitation. This scene begins with an angry misunderstanding regarding the gist of the earlier telephone conversation. The tape then degenerates into a physical confrontation during which the victim was apparently hurled against a wall. To a background of children screaming that daddy shouldn't hurt mommy and mommy should do what daddy says, one hears the defendant issue a number of barely veiled threats against the victim's life. The defendant's fury is evident in his spoken voice.

After the November 1986 tape was played, the jury heard the earlier tape. This recording captures another scene at the victim's home. There is an argument about some of the defendant's personal effects that remained in the home. The argument includes statements that more directly threaten the victim's life. Partway through the taped conversation, one of the children arrives home. As the adults are shouting and the child is screaming, the defendant further threatens the victim's well-being.

Before these tapes were played for the jury, the assistant prosecutor stated his intention to present three tapes to the jury. Later he settled on the two that the jury heard. The defendant chose to introduce the third tape himself. It apparently contains a telephone conversation between the defendant and the victim. Evidently this tape was recorded sometime shortly before the March 1986 divorce hearing, and contains statements that are more conciliatory. ⁷

III

The admission of these tapes had been foreseen by the defense, and a written motion to suppress admission was filed before the case was tried. During the course of the trial, the defendant also presented a great variety of objections to the taped materials.

The defense arguments included an assertion that the prosecution was unable to authenticate the tapes in the manner required by People v. Taylor, 18 Mich.App. 381, 383-384, 171 N.W.2d 219 (1969), aff'd 386 Mich. 204, 191 N.W.2d 310 (1971). In Taylor, the Court of Appeals adopted from an ALR article ⁸ a seven-part test to determine the admissibility of sound recordings. The Court of Appeals said in Taylor that there must be:

(1) a showing that the recording device was capable of taking testimony,

(2) a showing that the operator of the device was competent,

(3) establishment of the authenticity and correctness of the recording,

(4) a showing that changes, additions, or deletions have not been made,

(5) a showing of the manner of the preservation of the recording,

(6) identification of the speakers, and

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

On the first day of trial, the court indicated that the tapes would be admissible if a witness could identify the voices on the tape. Several days later, there was a more detailed discussion of this question. First, the prosecutor presented Ms. Fawaz who identified the voices of the victim, the defendant, and the children. This testimony took place outside the presence of the jury.

As defense counsel questioned Ms. Fawaz about the November tape, she testified that she was not present when the tapes were made, did not know what tape recorder was used, did not personally know who made the tapes, did not know whether the tapes contained entire conversations or only portions of conversations, did not know whether the tapes had been changed or altered in any way, had no way of personally determining whether the tapes had been changed or altered, and did not know whether the statements contained on the tape had been made voluntarily and without inducement.

After Ms. Fawaz testified concerning the July tape, there was additional argument from the attorneys, and this ruling from the trial court:

The Court: Well People versus Taylor takes a rule that is set forth in 58 ALR Sec 1024, requires one, a showing that the recording device was capable of testimony.

Seems to be no argument about that.

A showing that the operator of the device was competent. Again it is self-authenticating in that there is a recording and quite a recording that the defense doesn't want in. Subsequent authenticity and correctness of the recording, the witness heard these recordings before.

And a showing that changes, deletions have not been made. The witness believes that these are the same recordings she heard before.

A showing that the manner of preservation of the recordings, I think we heard the evidence technician and other people showing where they got them and six, the identity of the speaker and number seven the defendant concedes showing that testimony elicited was voluntarily made without any kind of inducement.

[Defense Counsel ]: I do not concede that, just to correct the record.

The Court: I don't believe they are too remote. These are in November. The homicide took place on the second of April. It is therefore not too remote.

I will allow the recordings to be played to the jury this afternoon at 2:15.

When the jury returned to the courtroom, Ms. Fawaz again identified the voices on the tapes, and the tapes were played for the...