People v. Tobey

• Decision Date: 01 November 1976
• Docket Number: No. 2,2
• Citation: 401 Mich. 141,257 N.W.2d 537
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bradley Lynn TOBEY, Defendant-Appellee. ,
• Court: Michigan Supreme Court

Page 537

257 N.W.2d 537

401 Mich. 141

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bradley Lynn TOBEY, Defendant-Appellee.

No. 2, November Term, 1976.

Supreme Court of Michigan.

Sept. 20, 1977.

William F. Delhey, Washtenaw County Pros. Atty. by Lynwood E. Noah, Senior Asst. Pros. Atty., Ann Arbor, for plaintiff-appellant.

O'Brien, Moran & Dimond by Michael C. Moran, Ann Arbor, for defendant-appellee.

Before the entire bench.

LEVIN, Judge.

Bradley Tobey was convicted of two charges of sale of heroin ¹ set forth in separate informations which were joined for trial.

The two sales, on February 17 and February 29, 1972, were made to a police undercover agent who, between the first and second sales, made three telephone calls to Tobey. The police recorded the calls, and the recordings were subjected to spectrographic (voiceprint) analysis. The results of that analysis were admitted at the trial, over objection, to corroborate the undercover agent's identification of Tobey as the person with whom he had conversed on the telephone.

The Court of Appeals reversed Tobey's conviction on the ground that there was not an adequate foundation in this case ² for admission of voiceprint evidence.

The people contend that the foundation was adequate, and that spectrographic evidence is admissible.

Tobey, on cross appeal, contends that the trial judge erred in refusing to sever the two charges for trial.

We affirm the Court of Appeals, and remand for further proceedings.

We are of the opinion that the people failed to discharge their obligation of establishing that identification by use of the sound spectrograph has gained general acceptance in the scientific community; therefore, sound spectrographic evidence is not admissible. ³

The two informations charged distinct and separate offenses, and Tobey was entitled to a separate trial on each offense. On remand the prosecutor shall determine on which charge he first wishes to proceed.

I

This Court recently reconsidered, in light of scholarly criticism, ⁴ the Frye ⁵ rule adopted in earlier decisions of this Court, ⁶ limiting the admission of scientific evidence to a technique which has become "sufficiently established to have gained general acceptance in the particular field in which it belongs," and reaffirmed our adherence to that rule. People v. Barbara, 400 Mich. 352, 255 N.W.2d 171, p. 172 (1977). In holding that polygraph (lie detector) evidence may be considered by a judge in deciding whether to grant a new trial but is not admissible at trial, this Court declared that general scientific recognition may not be established without the testimony of "disinterested and impartial experts," "disinterested scientists whose livelihood was not intimately connected with" the new technique. Id., pp. 171, 180.

In the instant case, the people sought to establish the admissibility of voiceprint evidence through the testimony of Dr. Oscar Tosi and Lt. Ernest Nash. ⁷ The original voiceprint work was done by Lawrence Kersta for Bell Laboratories. Nash, an experienced police officer but not a scientist, was Kersta's pupil and assisted Tosi, a professor of audiology in planning and conducting the study from which he concluded that voiceprints are reliable. ⁸ Neither Nash nor Tosi, whose reputations and careers have been built on their voiceprint work, can be said to be impartial or disinterested.

Reviewing this history, the supreme courts of California and Pennsylvania concluded recently that voiceprint evidence has not "achieved that degree of general scientific acceptance as a reliable identification device which will permit the introduction of voiceprint evidence." People v. Kelly, 17 Cal.3d 24, 28, 130 Cal.Rptr. 144, 146, 549 P.2d 1240, 1242 (1976). Commonwealth v. Topa, Pa., 369 A.2d 1277 (1977). Maryland's intermediate appellate court reached the contrary conclusion that such evidence is admissible. Reed v. State, 35 Md.App. 472, 372 A.2d 243 (Ct.Spec.App. 1977), cert. granted, No. 62/Sept. 1977 (Md.Ct.Apps. June 29, 1977). Nash or Tosi or both had testified in all three cases. Indeed, the work or testimony of Kersta, Tosi or Nash has been the principal evidence offered in support of the reliability of voiceprints in almost every case. ⁹

The essential difference between the approaches of the Maryland court and of the California and Pennsylvania courts is that the Maryland court did not require independent and impartial proof of general scientific acceptability, and the California and Pennsylvania courts require such proof, as does this Court, People v. Barbara, supra.

The California court, after considering the work of Kersta and Tosi, and Nash's testimony, concluded that "additional and impartial evidence regarding general acceptance" was required before the people would be deemed to have carried "their burden of establishing the reliability" of voiceprint evidence. People v. Kelly, supra, 17 Cal.3d pp. 38, 40, 130 Cal.Rptr. pp. 153, 155, 549 P.2d pp. 1249, 1251.

The Pennsylvania court, expressing its respect for Lt. Nash's "considerable expertise in the area of spectrography," similarly stated that "his opinion, alone, will not suffice to permit the introduction of such scientific evidence into a court of law. Admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs." Commonwealth v. Topa, supra, 369 A.2d 1281 (emphasis in original).

The Pennsylvania court concluded, after reviewing the criticism of Kersta's and Tosi's work in articles published in the Journal of the Acoustical Society of America, ¹⁰ "that the reliability of the sound spectrograph and voiceprint identification has not, as yet, been generally accepted by the scientific community concerned with acoustical science." Id., 369 A.2d 1282.

We conclude that the people have failed to demonstrate that voiceprint evidence has achieved general scientific acceptance as a reliable identification device, and therefore the trial court erred in admitting the voiceprint evidence. We echo the statement of the California Supreme Court that this "decision is not intended in any way to foreclose the introduction of voiceprint evidence in future cases * * * when there is demonstrated solid scientific approval and support of (this) new method" of identification. People v. Kelly, supra, 17 Cal.3d p. 41, 130 Cal.Rptr. p. 155, 549 P.2d p. 1051.

II

The Court of Appeals rejected the people's contention that "the two offenses, which occurred 12 days apart, constitute a single transaction for purposes of double jeopardy and therefore must be tried together," but concluded that the trial judge had discretion which he did not abuse by denying Tobey's motion for separate trials.

In People v. Johns, 336 Mich. 617, 59 N.W.2d 20 (1953), this Court reviewed its earlier opinions and ruled that separate and distinct offenses may be charged as separate counts in an information and joined for trial where they are "committed by the same acts at the same time and the same testimony must be relied on for conviction." ¹¹ "It is to be noted that this Court has emphasized that the offenses charged in the several counts must arise out of substantially the same acts committed at the same time." People v. Johns, supra, p. 623, 59 N.W.2d p. 23 (emphasis supplied).

While Tobey's conduct in selling heroin on different days to the same person is substantially similar conduct, it is not the same conduct or act. For double jeopardy and joinder purposes each sale is separate conduct, a separate act and transaction, and, as the Court of Appeals correctly noted, a separate and distinct criminal offense.

In Blockburger v. United States, 284 U.S. 299, 301, 302, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the defendant was convicted of three sales of morphine to the same purchaser and sentenced to serve five years and pay a fine on each count, the terms of imprisonment to run consecutively. The United States Supreme Court, affirming the convictions and sentences, rejected the defendant's contention that the second and third sales constituted but one offense because they were made to the same person on successive days:

"The sales charged in the second and third counts, although made to the same person, were distinct and separate sales made at different times. It appears from the evidence that shortly after delivery of the drug which was the subject of the first sale, the purchaser paid for an additional quantity, which was delivered the next day. But the first sale had been consummated, and the payment for the additional drug, however closely following, was the initiation of a separate and distinct sale completed by its delivery.

"The contention on behalf of petitioner is that these two sales, having been made to the same purchaser and following each other with no substantial interval of time between the delivery of the drug in the first transaction and the payment for the second quantity sold, constitute a single continuing offense. The contention is unsound. The distinction between the transactions here involved and an offense continuous in its character is well settled, as was pointed out by this court in the case of In re Snow, 120 U.S. 274 (7 S.Ct. 556, 30 L.Ed. 658 (1887))." ¹²

Reference has been made to the ABA Standards Relating to Joinder and Severance which permit joinder of offenses which "are of the same or similar character," or which "are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." ¹³ The Standards also provide, however, that when offenses have been joined "solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses," and that in the other situations where joinder is permitted the court shall grant a severance "whenever * * * it is deemed appropriate to promote a fair determination...