People v. Ely

• Decision Date: 18 December 1986
• Parties: , 503 N.E.2d 88 The PEOPLE of the State of New York, Respondent, v. Karen T. ELY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 532

510 N.Y.S.2d 532

68 N.Y.2d 520, 503 N.E.2d 88

The PEOPLE of the State of New York, Respondent, v. Karen T. ELY, Appellant.

Court of Appeals of New York.

Dec. 18, 1986.

Stephen R. Coffey and Salvatore D. Ferlazzo, New York City, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, Albany of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered. Absent such proof, the defendant's concession that the voice on the tapes is his or hers and that he or she recalls making some of the statements on the tapes does not exclude the possibility of alteration and, therefore, does not sufficiently establish authenticity to make the tapes admissible. Moreover, when, as here, tapes which are admitted to prove motive contain evidence of crimes other than that for which defendant is on trial, unrelated to motive or the relevance of which to motive is outweighed by its prejudicial effect, which is not itself otherwise admissible and not explanatory of the acts done or words used in the admissible part of the tapes, such material should be redacted before submission of the tapes to the jury. The tapes admitted in this case having been admitted without sufficient foundation and without proper redaction, the order of the Appellate Division affirming the judgment of conviction, 115 A.D.2d 171, 495 N.Y.S.2d 240, should be reversed and a new trial ordered.

I

On February 6, 1982, Raymond Ely was to have commenced overnight visitation with his son, Robert, pursuant to a stipulation entered into during the course of the divorce proceedings between him and defendant, Karen Ely, his estranged wife. On February 5, 1982, however, Raymond Ely was found dead on the passenger side of the front seat of his station wagon, which was parked behind a bus terminal in downtown Albany. Defendant and Robert Huntington were charged with his murder in an indictment alleging that the deceased was strangled in the cellar of defendant's Rensselaer home on the night before his body was discovered, and then transported to Albany. Defendant's primary motive for the killing, the People later would argue, was to deny Raymond Ely the opportunity to visit overnight with their son.

Huntington pleaded guilty to murder in the second degree and was the prosecution's chief witness against defendant at the trial out of which this appeal arises. He testified that during the first week of January 1982, defendant approached him and enlisted his services in the murder of her husband. Pursuant to a prearranged plan, Raymond Ely was invited to defendant's home on February 4, 1982 at 7:30 P.M. to pick up certain items of personal property which it had been agreed were to be retained by him. Stating that she needed assistance with some cleaning up in the cellar, defendant, according to Huntington, lured her husband into the basement where Huntington was waiting. While defendant held her husband's wrists, Huntington strangled him with a clothesline. After defendant checked him for a pulse and removed all his possessions "to make it look like a robbery had occurred," the two carried the body of Raymond Ely into his station wagon, which Huntington then drove into downtown Albany, where he abandoned it. The following day, defendant told Huntington that she and Robert's baby-sitter had disposed of defendant's possessions in a dumpster in East Greenbush.

Huntington testified that the purpose of the murder, as he understood it, was to stop the deceased from exercising his "visiting rights * * * for their son, Robert." According to Raymond Ely's matrimonial attorney, Paul Oliver, defendant and the deceased had stipulated that defendant would have five successive Sunday visits with their son, after which overnight weekend visitation would commence on Saturday, February 5, 1982. Notably, Huntington told the jury that when on the night of the killing he expressed doubt about carrying out the murder plan, defendant stated, "Don't back out on me now. We have to do it tonight. We have to do it before the weekend."

The most damning evidence of motive, however, consisted of three tapes of recorded telephone conversations between defendant and the deceased (exhibits 39, 40 and 41). The recordings were made by the deceased at his attorney's suggestion during August and September 1981, and were intended for use as evidence in the parties' then pending divorce proceeding. Prior to commencement of the trial, defendant's attorney sought a ruling (see, People v. Ventimiglia, 52 N.Y.2d 350, 362, 438 N.Y.S.2d 261, 420 N.E.2d 59) excluding the tapes on the ground of relevance, marital privilege and prejudice. The Trial Judge denied the request, reasoning that the conversations were not privileged because not made as part of an attempted reconciliation, but reserved decision as to relevancy pending proof at trial "as to what the motive is." In response to the prosecutor's offer of proof, the court further commented that if the People succeeded at trial in presenting evidence that defendant's motive was to prevent the deceased from keeping the child overnight, the court would admit the tapes as relevant, subject to proof of the requisite foundation.

The evidence of foundation presented at trial as to exhibits 39 and 40 came from Raymond Ely's roommate, who testified that the tapes had been made by him outside their home, at a time and place unknown to her, and then placed by him in a shopping bag which he stored in the living room and later moved into the bedroom closet. After the murder she retrieved the tapes from the closet and turned them over to the police.

As to the tape designated exhibit 41, Paul Oliver testified that, in or about September 1981, he received it from Raymond Ely and thereafter kept it in Ely's file at his office until he, too, handed the tape to the police. He also testified that in his opinion the notations on all three tapes were in the handwriting of Raymond Ely. He conceded, however, that Ely had had exhibit 41 in his own possession "probably" for "anywhere from three weeks to a month" before delivering it to him.

Custody of all three tapes after delivery to the police was established by the testimony of Police Officer Mancuso, and defendant stipulated in court that the female voice on the tapes was hers. In separate rulings as to exhibits 39 and 40 and then as to exhibit 41, the Trial Judge held that sufficient foundation had been established.

A substantial portion of the content of the tapes involved Raymond Ely's unsuccessful efforts to persuade defendant to allow him visitation with their son. Defendant's steadfast refusal to acquiesce in such requests is evidenced by those portions of the tape in which she offered to waive her claim to child support, despite her $50 per week wages, in exchange for an agreement that the deceased would have no visitation rights, and by her repeated statements that he would be afforded visitation "over my dead body."

Defendant based her position in respect of visitation, at least in part, on her contention that Robert, then about two years old, did not want to see his father because he had done "something" to frighten the boy. But she also maintained that the deceased was not the boy's father and the tapes include the first conversation during which she so informed him. In response to Raymond Ely's statements that he thought that her pregnancy was their attempt at improving a troubled marriage, defendant explained that she would have left the deceased before the child was even conceived but remained with him because she was then under indictment for arson and it was the feeling of her attorney that her defense would be enhanced if she continued in the marriage. She had, therefore, waited until the charges were dropped before leaving him.

Similar references to the arson charges appear throughout the tapes. On a number of occasions defendant reacted to her husband's asking, in disbelief that he was not the father of the child, how she could "live a lie" by not revealing that to him earlier, by responding repeatedly that she lied because she had to, in light of her attorney's advice that she remain married while the arson charge was pending. On one occasion, however, she added that if the deceased pressed forward with court proceedings, she would "swear" in court, in support of her claim for child support, that he was Robert's father, adding that "of course I'll do what I have to in Court. Doesn't everybody?"

After the Trial Judge held the foundation of the tapes sufficient, defendant moved that there be redacted from them references to the fire and related arson charge, as well as the fact that defendant's lawyer had advised her to live with the deceased until the arson charge was dismissed. ¹ He argued that these references were unfairly prejudicial, especially in light of the dismissal of the arson indictment. The prosecutor countered that the tapes, themselves, would inform the jurors about the dismissal and that "the rest go to the willingness and ability to lie," i.e., to defendant's credibility. The Trial Judge denied the motion, reasoning that "the entire tape is relevant to motive, that there's a flavor to it. It is a cohesive whole and to chop it up into little pieces like that really diminishes the integrity of the exhibit." Defense counsel requested reconsideration of that ruling after the playing of the first tape revealed 12 separate references to the arson charge. Reasoning again that the conversations went to motive and that "many of these things are intertwined," the Trial Judge denied the motion, adding that defendant's claim of prejudice was overstated because the dismissal of the arson charge was mentioned on the tapes.

Defendant testified in her own behalf, denying involvement in the murder and stating that Huntington...