People v. King

• Decision Date: 10 October 1968
• Docket Number: Cr. 13588
• Citation: 266 Cal.App.2d 437,72 Cal.Rptr. 478
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Lee KING, Defendant and Appellant.

Page 478

72 Cal.Rptr. 478

266 Cal.App.2d 437

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Lee KING, Defendant and Appellant.

Cr. 13588.

Court of Appeal, Second District, Division 2, California.

Oct. 10, 1968.

Rehearing Denied Oct. 28, 1968.

Hearing Denied Dec. 4, 1968.

[266 Cal.App.2d 440] Kenneth R. Thomas, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.

NUTTER ^*, Associate Justice Pro Tem.

Appellant was convicted by a jury of arson, the burning of a Thrifty Drug Store at Central and Washington in the Watts area of Los Angeles. He was acquitted of two other counts of arson. This appeal follows a denial of probation, a sentence to state prison and a denial of a motion for new trial.

This case was an outgrowth of the fires, riots and disturbances in the south central area of Los Angeles in August 1965, and involves the first known use of 'voiceprint' evidence as a means of identification of a defendant in California. We must determine if the admission of an identification opinion based upon a 'voiceprint' was error.

Prosecution of the appellant was initiated as a result of a television showing on CBS nationwide television on December 7, 1965, of a documentary film entitled 'Watts, Riot or Revolt.' The film, which was presented by CBS to show the causes and effects of the riots, portraryed an apparently unidentifiable young male Negro who made incriminating statements about his role in the riots and the burnings while CBS newsman Bill Stout was conducting a walking interview at different locations in the Watts area. Following the TV showing certain law enforcement officials initiated an investigation to identify the speaker.

On December 25, 1965, defendant was arrested on a narcotics charge and his property was booked including a wallet containing the business card of a CBS cameraman who filmed the interview, a paper containing the name of the associate producer of the film and a watch and ring A prefilm interview was tape recorded in CBS Los Angeles studios between Stout and a young male Negro on September 20, 1965. Both the pre-interview tape and a ten minute segment of the broadcast documentary film containing alleged admissions and confessions of arson were played and heard by the jury. However, they were not received in evidence by the trial court until after Kersta, the prosecution's 'voiceprint' expert gave an opinion that the voice obtained in the tape of the jail interrogation was the same as the one making the incriminating statements.

later claimed to be identified in the film. Suspecting a connection of appellant with the TV interview, on January 28, 1966, defendant was interrogated in a bugged room at the county jail for the purpose of obtaining his voice on tape and comparing it with the voice on the TV broadcast by means of 'voiceprint.' He was not told that the purpose of the taping was to obtain a 'voiceprint' but was told the purpose of the interview was an investigation of the Watts disturbances. An exemplar of this tape recording was admitted in evidence for the limited purpose of 'voiceprint' identification but was not played for the jury.

CBS personnel photographed, screened and edited the film so that no pictorial identification could be made of the individual who made the inculpatory statements. CBS personnel asserted the newsmen's privilege under section 1881(6) of the Code of Civil Procedure and refused to identify the speaker on the film.

The trial which lasted from October 24, 1966 to December 9, 1966 was to a large part concerned with examination of Mr. Kersta and expert witnesses in the field of sound engineering, phonetics and acoustics, and extensive arguments concerning the order of proof and admission of the films and admission of expert testimony in these fields. While Mr. Kersta defended his 'voiceprint' method of identification as having the infallibility of fingerprints, all seven of the defense witnesses who were either scientists, engineers or in one case, Dr. Gerstman, a colleague who monitored Kersta's work at Bell Telephone Laboratories, testified that the method had not reached sufficient scientific certainty to be reliable as a positive means of identification in a court of law; that Kersta did not have adequate training, qualifications and education for interpreting and identifying voices by use of the spectrograms.

In addition to the issue involving the admissibility of Mr. Kersta's opinion and the weight to be given to the 'voiceprint' technique as a means of identification, other issues involved alleged prejudicial misconduct by the deputy district attorney in commenting upon the failure of the defendant to testify and his comments and innuendos about assertion by CBS personnel of the newsmen's privilege; the refusal of the trial court to rule on Kersta's qualifications as an expert witness; the judge's abdication of this duty to the jury, the receipt of the films and exemplars in evidence without proper foundation and the surreptitious taking of 'voiceprint' materials without appellant's knowledge, the playing of the tapes to the jury without the deletion of certain prejudicial racial comments which it is alleged were unnecessary for the 'voiceprint' identification; an improper showup or identification procedure which allegedly denied defendant's due process because of the part that this showup played in his identification; the ruling of the court denying a motion for new trial on these issues and the further ground of newly discovered evidence.

The chief prosecution witness, Mr. Lawrence Kersta, identified appellant's voice on the CBS film by a comparison of a visual picture or 'voiceprint' of appellant's voice obtained from the tape recordings. He claims that no two persons will produce identical 'voiceprints'; that his technique and equipment have the accuracy of fingerprint identification.

QUALIFICATION OF KERSTA AS AN EXPERT

The trial of this case focused on the CBS documentary, the so-called confession or admission tape recordings. While there was certain circumstantial evidence presented, the opinion of Mr. Kersta was the only evidence identifying the voice on the tape to be that of the defendant. As the trial judge stated in appellant's motion for a new trial, without this tape 'there would be no case.'

The determination of whether a scientific test has received general acceptance by recognized experts in the field so as to justify the admission of expert testimony based on the results of the test is primarily a question of fact for the trial court. (Huntingdon v. Crowley, 64 Cal.2d 647, 656, 51 Cal.Rptr. 254, 414 P.2d 382; People v. Busch, 56 Cal.2d 868, 878, 16 Cal.Rptr. 898, 366 P.2d 314; State v. Cary, 49 N.J. 343, 230 A.2d 384, 389.)

The trial court enjoys considerable latitude in determining the qualification of an expert. Its ruling will not be disturbed upon appeal unless a manifest abuse of discretion is shown. (Huffman v. Lindquist, 37 Cal.2d 465, 476, 234 P.2d 34, 29 A.L.R.2d 485; People v. Busch, supra; Coast Counties Gas & Electric Co. v. Miller & Lux Inc., 118 Cal.App. 140, 143, 5 P.2d 34; Vallejo etc. R.R. Co. v. Reed Orchard Co., 169 Cal. 545, 575, 147 P. 238; Bennett v. Los Angeles Tumor Institute, 102 Cal.App.2d 293, 296, 227 P.2d 473; Crooks v. Pirrone, 228 Cal.App.2d 549, 553, 39 Cal.Rptr. 622; Witkin, California Evidence, 2d Ed., § 1175, p. 1088.)

The standards used in the exercise of judicial discretion in determining the qualifications of an expert, like other questions of law, are subject to appellate review. (People v. Davis, 62 Cal.2d 791, 800, 44 Cal.Rptr. 454, 402 P.2d 142.)

'The opinion of an expert must not only be on a proper subject * * * but must be based on reliable 'matter' ('facts, data, and such matters as a witness' knowledge, experience, and other intangibles upon which an opinion may be based'; * * *' (Witkin, California Evidence, 2d Ed., § 409, p. 367.)

'Wigmore states the rule as follows: 'When the testimony thus appearing to the ordinary layman to lack a rational basis is founded on observations made with esoteric methods or apparatus * * * the method should be explained by the witness, and if It be vouched for as accepted in his branch of learning, it suffices to admit his testimony. '' (Emphasis added.) (People v. Williams, 164 Cal.App.2d Supp. 858, 860--861, 331 P.2d 251, 253.)

'(T)here is no rigid classification of expert and non-expert witnesses, and experts need not necessarily be professional men. Expertness is relative to the subject, and any person who has special knowledge, skill or experience in any occupation, trade or craft may be qualified as an expert in his field. (See Estate of Toomes (1880), 54 C. 509, 514; Estate of Gore (1953) 119 C.A.2d 796, 799, 260 P.2d 859; People v. Smith (1956) 142 C.A.2d 287, 293, 298 P.2d 540 ('A university degree, earned by scientific pursuits * * * is not indispensable'); People v. Hopper, (1956) 145 C.A.2d 180, 190, 302 P.2d 94; Oakes v. Chapman, (1958) 158 C.A.2d 78, 83, 322 P.2d 241; McCormick, p. 28; 7 Wigmore, § 1923; Selected Writings, p. 493; 1 BAJI, No. 33; 1946 A.S. 1168; 2 Am.Jur. Trials, pp. 293, 585; * * *' (Witkin, California Evidence, 2d Ed., § 411, pp. 370--371.)

'Evidence of * * * a (scientific) test will not be admitted unless its scientific basis and reliability are generally recognized by competent authorities. (See People v. Spigno (lie detection evidence inadmissible) (1957) 156 C.A.2d 279, 290, 319 P.2d 458; People v. Williams (nalline) (1958) 164 C.A.2d Supp. 858, 860, 331 P.2d 251, infra, § 656; Huntingdon v. Crowley (1966) 64 C.2d 647, 653, 51 C.R. 254, 414 P.2d 382; McCormick, p. 363.)' (Witkin, California Evidence, 2d Ed., § 652, p. 614.)

'Before a witness advanced as an expert is permitted to give his...