People v. Schram

• Decision Date: 17 June 1980
• Docket Number: 45389,Docket Nos. 45327
• Citation: 296 N.W.2d 840,98 Mich.App. 292
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael SCHRAM, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul B. ALEXANDER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 840

296 N.W.2d 840

98 Mich.App. 292

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael SCHRAM, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul B. ALEXANDER, Defendant-Appellant.

Docket Nos. 45327, 45389.

Court of Appeals of Michigan.

June 17, 1980.

Released for Publication Sept. 24, 1980.

Kenneth G. DeBoer, Lansing, for Alexander.

Paul E. Lincolnhol, Lansing, for Schram.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Michael G. Woodworth, Asst. Pros. Atty., Janis L. Blough, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and KELLY and FREEMAN, ^* JJ.

KELLY, Judge.

On January 26, 1979, codefendants Michael Schram and Paul Alexander were convicted by a jury of attempted safe-breaking, contrary to M.C.L. § 750.351; M.S.A. § 28.799, and breaking and entering with intent to commit larceny, contrary to M.C.L. § 750.110; M.S.A. § 28.305. Following a bench trial on January 27, 1979, both defendants were convicted as habitual offenders, M.C.L. § 769.13; M.S.A. § 28.1085. Defendant Alexander received a sentence of 7 1/2 to 30 years imprisonment with a jail time credit of 138 days. Defendant Schram was sentenced to a term of 25 to 40 years imprisonment with jail time credit of 174 days. Defendants appeal as of right.

Defendants were arrested on October 26, 1978, at 608 North Larch Street, Lansing, Michigan, which is the location of Jack's Automotive Service, owned by Mr. Jack Woodward. Mr. Woodward testified that when he closed his garage on October 26, 1978, he telephoned the Sonitrol Alarm System Company and requested that his alarm system be activated. The system included two microphones which enabled Sonitrol to monitor noises throughout the garage and switches which set off an alarm in the Sonitrol office when a door or window was opened.

Ann Steffen, an employee of Sonitrol, testified that she was on duty on the evening in question and that at 11:27 p. m. she monitored unusually loud noises at Jack's Automotive Service, after which a door opened. Ms. Steffen made a tape recording of the incident covering the period from 11:28 p. m. until she heard police arrive at the scene. Ms. Steffen identified the cassette recording at trial and there was additional testimony by the president and vice-president of Sonitrol concerning the chain of custody of the recording.

Officer Malcolm Hall testified that he made a filtered copy of the original recording. He stated that the filtering process does not alter the tape in any way other than emphasizing the speaking voices while reducing background noise interference. Police Detective Homer Phelps testified concerning the chain of custody of the cassette tape recording in the hands of the police department.

Dr. Oscar Tosi, a voice identification expert from Michigan State University, explained the procedure he followed in making the filtered copy of the original recording and the filtered tape was subsequently played for the jury over defense counsel's objection. Pursuant to a jury request, the filtered tape was played a second time during the deliberation stage of the proceedings.

On the day following return of the jury's guilty verdict, the trial court began the habitual offender proceeding. The trial court denied defense counsel's motion for adjournment, indicating that defendant could attack the validity of his prior convictions in a Tucker ¹ hearing subsequent to the habitual offender proceeding and prior to sentencing. Following the court's further denial of a motion for a new jury, both defendants, contrary to advice of counsel, waived the right to a jury trial and were subsequently found guilty by the court of being habitual offenders.

I. Issues Raised by both Defendant Schram and Defendant Alexander.

Defendants claim that the trial court erred in admitting the filtered tape recording into evidence and in allowing that recording to be played for the jury at both the evidentiary and deliberation stages of the proceedings on the grounds that it was not an accurate reproduction of the original. MRE 1003 provides the following guidelines for the admission of duplicates:

"A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

Since the authenticity of the original tape is not disputed by defendants, we need only decide whether, under the circumstances, it was unfair to admit the duplicate in lieu of the original. The record reveals that before deciding to admit the filtered tape, the trial court heard testimony regarding its accuracy and genuineness and, out of the jury's presence, listened to both recordings and concluded that the only difference was the reduced amount of background noise on the duplicate. Our review of the record indicates that the people produced sufficient evidence on the question of chain of custody of the recordings to withstand defendants' challenge on that basis. See 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); People v. Stevens, 88 Mich.App. 421, 424, 276 N.W.2d 910 (1979).

In light of the proper foundation laid by the people in seeking admission of the challenged evidence, the trial court's care and diligence in dealing with this matter, and guided by the Fifth Circuit's decision in Fountain v. United States, 384 F.2d 624 (CA 5, 1967), cert. den. sub. nom. Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968) ², we find no error in the admission of the filtered tape.

In Fountain, the defendants were convicted of the illegal sale or distribution of narcotic drugs, bribery of public officials, soliciting and accepting bribes, and aiding and abetting solicitation. At the defendants' trial, there was received into evidence and presented to the jury a tape-recorded telephone conversation involving the defendants. The defendants appealed the reception into evidence of copies of the original recording on the grounds that no justification was shown for not using the original tapes and that the noise suppression may have eliminated part of the conversation, thus making the copies unreliable. In Fountain, as in the present case, both the original and the copy of the original recording were admitted and in both cases the copy of the original recording was a filtered copy. In both cases there was testimony by experts indicating that the copy was an accurate reflection of the original. The Fountain Court held that:

"The existence of a significant degree of background noise which might well have interfered with the jury's ability to understand the substance of the conversations, plus the availability of a reliable method of removing the interference by making a copy and running it through the noise suppression device sufficiently justify the admission and use of the copy. The District Court found, and it is not seriously disputed here, that the copy was an accurate reflection of the conversations transcribed on the original tape. Considering the strong showing here of the accuracy and reliability of the copy and its value in making the conversations more easily discernible, its admission was not error." Fountain, supra, 631.

The Fountain Court relied on United States v. Hall, 342 F.2d 849 (CA 4, 1965), in which the Fourth Circuit reached an identical conclusion under similar circumstances. Defendant in Hall challenged the admission of a tape copy of an original wire recording and the written transcript of the conversation on the grounds that the duplicate was untrustworthy and that allowing the jury to hear both the original recording and the copy placed unwarranted emphasis on this evidence. The Court in Hall held that it was within the discretion of the trial court to determine the necessity and effect of admitting the evidence and declined to disturb its ruling. Based upon the same reasoning, we approve of the court's decision in the case before us. Having concluded that the filtered tape was indeed admissible evidence, the decision to permit the second playing during the deliberation stage differs little from the typical compliance with a jury request for a reading back of certain portions of trial testimony. See Moldovan v. Allis Chalmers Mfg. Co., 83 Mich.App. 373, 384, 268 N.W.2d 656 (1978), lv. den., 406 Mich. 916 (1979), and cases cited therein.

Defendants jointly and individually claim several errors with regard to the habitual offender trial: 1) that they were not arraigned on the habitual offender charges until after trial on the principal offense, nor advised by their attorney of these charges; 2) that the trial court should have granted the motion for adjournment; 3) that the trial court abused its discretion in denying the motion for a new jury; 4) that defendants were not properly identified at the habitual offender trial; 5) that defendants were entitled to a Tucker hearing before or during the habitual offender proceeding; and 6) that conviction under the habitual offender statute, M.C.L. § 769.13; M.S.A. § 28.1085, constitutes a violation of the constitutional guarantee against double punishment.

Both defendants testified at trial on the principal charges and were impeached on cross-examination by evidence of prior convictions. Due to an admitted oversight on the part of defense counsel, defendants did not receive copies of the supplemental informations filed by the prosecutor charging them as habitual offenders. Defense counsel did, however, advise them of the likelihood of such charges and the prosecutor informed them of his intention to file the charges at the arraignment on the principal offenses.

In People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968), this Court approved the procedure whereby the same jury that...