People v. Slaton

• Decision Date: 19 September 1984
• Docket Number: Docket No. 66683
• Citation: 354 N.W.2d 326,135 Mich.App. 328
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leander SLATON, Defendant-Appellant. 135 Mich.App. 328, 354 N.W.2d 326
• Court: Court of Appeal of Michigan — District of US

Page 326

354 N.W.2d 326

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leander SLATON, Defendant-Appellant.

Docket No. 66683.

135 Mich.App. 328, 354 N.W.2d 326

Court of Appeals of Michigan.

Submitted April 9, 1984.

Decided June 18, 1984.

Released for Publication Sept. 19, 1984.

[135 MICHAPP 329] Frank J. Kelley, Atty. Gen., Louis J. [135 MICHAPP 330] Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty., Civil and Appeals, and Larry L. Roberts, Asst. Pros. Atty., for the people.

James R. Neuhard, State Appellate Defender by Herb Jordan, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before HOOD, P.J., and KELLY and LIVO ^*, JJ.

KELLY, Judge.

Following a mistrial, defendant was convicted by a jury of felony murder, M.C.L. 750.316; M.S.A. 28.548, in connection with the death of 70-year-old Frederick Trombley, who was found beaten and unconscious in his home on April 30, 1981. Trombley died on July 2, 1981, without regaining consciousness. Defendant was sentenced to life imprisonment and he now appeals his conviction as of right. We affirm.

Rosilind Lee, a 911 operator, testified that on April 30, 1981, she received a call from a man subsequently identified as Mr. Trombley reporting that some person or persons had broken into the basement of his home at 115 Tuxedo, Highland Park, and were attempting to break down the door which separated him from the basement. Lee requested police assistance and spoke to the caller for approximately five minutes when she heard the phone drop. Lee testified that she then heard a loud banging noise and the caller yelling and two voices ordering the caller on the floor, repeatedly demanding money. Near the end of the call, Ms. Lee heard a crashing sound and about five minutes later, heard a male voice yell "freeze". The call began at 10:43 p.m. and ended at 11:12 p.m.

[135 MICHAPP 331] Highland Park Police Officer Michael Gardenhire testified that on April 30, 1981, between 10:30 p.m. and 10:35 p.m., he received a call to go to 115 Tuxedo. Upon arriving at the scene, Officer Gardenhire checked the front door and windows on the front and side of the house and found them locked. He received no response when he knocked on the front door but observed some movement through a window. His partner, Officer Morris Cotton, was at the same time investigating the rear of the house when he observed a man exit from one of the windows and begin running down an alley. Officer Gardenhire chased the man until he recognized him as Shawn Bigham and then returned to the house. Backup officers arrived and Officer Gardenhire kicked in the front door, observing as he entered the house some movement behind the den door. He discovered defendant hiding in the den and placed him under arrest. He then discovered Mr. Trombley lying on his stomach on the floor with his hands bound and his mouth gagged. Mr. Trombley's pants pockets were turned out and he was suffering from injuries to his head. The house was in a state of disarray.

Defendant introduced testimony attempting to establish that he was not present when the beating occurred but arrived at the house shortly thereafter. Three alibi witnesses testified that on the evening of April 30, 1981, Shawn Bigham showed up at defendant's home, which was located less than one block away from Mr. Trombley's home, and persuaded defendant to accompany him to a house where they were to meet some women. According to defendant's version of the incident, he was then led by Bigham to Mr. Trombley's home where Mr. Trombley already lay injured on the floor.

[135 MICHAPP 332]

I

At trial, the prosecutor sought to introduce into evidence a tape of the entire recording of Mr. Trombley's 911 telephone call.

Defense counsel objected on the grounds that the tape was inadmissible hearsay and that its prejudicial effect far outweighed any probative value it may have had. The trial court excluded the portion of the tape containing Lee's conversations with her supervisor but admitted the remaining portions of the tape under the excited utterance and present sense impression exceptions to the hearsay rule. On appeal, defendant argues that the admission of portions of the 911 tape constitutes error because the tape was irrelevant to the only disputed issue at trial, the identification of defendant as one of the perpetrators. Defendant alternately argues that even if the tape was properly admitted as relevant evidence, its prejudicial effect so seriously outweighed its probative value as to constitute error. Defendant argues that the probative value of the tape is significantly reduced by the availability and presentation of Lee's in-court testimony.

We first consider defendant's relevancy challenge to the admission of the 911 tape. Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. MRE 401. All relevant evidence is admissible unless otherwise provided under the constitution or rules of evidence. MRE 402; People v. Prast (On Rehearing ), 114 Mich.App. 469, 489, 319 N.W.2d 627 (1982).

We believe that the edited 911 tape was probative of at least two issues in this case. First, the tape tended to prove that Mr. Trombley's fatal injuries were inflicted by the perpetrators of the [135 MICHAPP 333] breaking and entering. Second, and perhaps more importantly, the tape is probative of the credibility of defendant's story regarding his limited involvement in the incident. Given the testimony of defendant's alibi witnesses, a critical issue is whether defendant had the opportunity to enter the Trombley house unobserved after Shawn Bigham and some unidentified person had inflicted the injuries upon Mr. Trombley and departed.

The 911 call began at 10:43 p.m. The tape was cut off at trial at a point that would have been approximately 10:48 p.m. or 10:49 p.m. on April 30, 1981. As of that cutoff point, the sound of only one entry is heard. According to Officer Cotton, he and Gardenhire arrived at the Trombley house at 10:50 p.m., following which Officer Cotton was at all times positioned at the rear of the house. He saw no one enter or even walk near the house during that time. Officer Gardenhire was positioned at the front of the house until he chased Shawn Bigham down the alley. After this brief absence he returned to the front of the house and did not see anyone enter or leave. The officers remained outside the house until they broke down the front door and entered. The portion of the tape admitted at trial begins again just before the officers' entry. Thus, the combination of the tape and the officers' testimony tends to prove that no one entered the Trombley house after the 911 call was placed and before the officers' entry. We find no abuse of discretion in the trial court's threshold finding that the tape was relevant to a material issue of fact and therefore admissible at trial. People v Howard, 391 Mich. 597, 603-605, 218 N.W.2d 20 (1974).

However, even relevant evidence must be excluded if its probative value is substantially outweighed[135 MICHAPP 334] by the risks of unfair prejudice. MRE 403. Defendant in this case alternatively argues that the edited tape should have been excluded as unfairly prejudicial and that failure to do so constitutes error. We have already described the highly probative nature of the admitted portions of the tape. Our inquiry now is whether the trial court abused its discretion in concluding that the probative value of the tape outweighed its prejudicial effect.

Included in the edited portions of the 911 tape heard by the jury were Mr. Trombley's calls for help and pleas not to be hurt, followed by his muffled moans. We agree with defendant that these sounds were likely to elicit an emotional response from the jury. We do not, however, agree that the effect of these sounds upon the jury was so prejudicial to the issue of defendant's guilt or innocence as to require exclusion of this otherwise highly probative evidence. Defendant's voice was not identified as one of the voices on the tape, leaving the question of defendant's involvement in the crime to be decided in light of other evidence. We cannot say that the trial court abused its discretion in its balancing of the probative value and prejudicial effect of the 911 tape as evidence.

Defendant further argues that the edited 911 tape should have been excluded as inadmissible hearsay. MRE 802. We disagree. Mr. Trombley's statements to Ms. Lee informing her that some person or persons had broken into his basement and were trying to break down the door separating him from the basement as he spoke described an event as he was perceiving that event and were therefore admissible as present sense impressions under MRE 803(1). Moreover, Trombley's statements related to a startling event and were made [135 MICHAPP 335] while under the stress or emotional shock of that event and were therefore also admissible as an excited utterance under MRE 803(2). Similarly, Ms. Lee's statements to Mr. Trombley related to a startling event made while she was under the stress of that event and were also admissible under MRE 803(2). See Hewitt v. Grand Trunk Western R. Co., 123 Mich.App. 309, 333 N.W.2d 264 (1983). The background noises on the tape are not inadmissible hearsay as they are not statements.

We finally note that the admission of sound recordings in general must be supported by a proper foundation. The requirements for a proper foundation are:

" '(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...