Reed v. State, 655

CourtCourt of Special Appeals of Maryland
Citation35 Md.App. 472,372 A.2d 243
Docket NumberNo. 655,655
PartiesJames REED, Jr. v. STATE of Maryland.
Decision Date07 April 1977

William T. Wood, Assigned Public Defender, Rockville, for appellant.

Deborah K. Handel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, and Steven A. Shaw, Asst. State's Atty. for Montgomery County on the brief, for appellee.

Argued before GILBERT, C. J., and MOYLAN and LISS, JJ.

GILBERT, Chief Judge.

The concept of spectorgraphy had it genesis in World War II. At that tiem, the Allied Intelligence Service ideated that if the specific identity of German radio operators could be ascertained the Allies would be able to follow the movement of enemy forces in Europe. Bell Telephone Laboratories was requested to, and did, develop the spectrograph for the purpose of identifying speakers.

According to Dr. Oscar Tosi, 1 spectrography 'consists of comparing both aurally and visually spectrograms of a questioned voice and a known voice, and on the basis of similarities to decide whether or not the two voices, the questioned and the known voice, are the same or belong to different persons.' 2

Spectrography, a relative newcomer to the law of evidence, compared with fingerprints and ballistics, has been admitted in some courts 3 but rejected in others. 4 Those jurisdictions which permit the introduction of spectrography do so on the ground that its reliability has been demonstrated and that the expert through whom the evidence is offered is properly qualified to give an opinion on the subject. People v. Kelly, supra, 130 Cal.Rptr. at 148, 549 P.2d at 1244.

The generally recognized test applied to new scientific techniques was articlated in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). There, Justice Van Orsdel stated for the Court:

'Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.' 5 293 F. at 1014.

After hearing 'Everything you always wanted to know about spectrographs but were afraid to ask,' 6 Judge John F. McAuliffe, in the Circuit Court for Montgomery County, admitted into evidence for the first time in Maryland, spectrography analysis, also known as 'voice print,' in the trial of James Reed, Jr., appellant, for rape, perverted practice, robbery, verbal threat and unlawful use of a telephone.

On appeal to this Court, appellant assigns six reasons, in question form, as to why the judgments of the circuit court should be reversed. We shall discuss each of the issues in the order that they have been posed to us. Antecedent to our discussion, however, we briefly recount the bizarre circumstances from which this case arose.

In the early morning hours of September 15, 1974, the prosecutrix arrived at her home, parked her car in the driveway, and began walking towards her front door. At that time, she was approached by a man who indicated that he had either a gun or a knife. This man ordered her to go with him to a wooded area behind her house. There he made her disrobe. He removed his penis from his trousers. He commanded her to commit fellatio on him, and then he had sexual intercourse with her.

At approximately 12:30 p. m. of the same day, the victim, whose purse was taken by her assailant, received a telephone call from a person who identified himself as the man who had raped her hours earlier. The prosecutrix notified the police. Corporal Thomas Evans, a detective with the Montgomery County Police Department, affixed, by suction cup, a cassette tape recorder to the prosecutrix's telephone. The recorder and the tapes belonged to the Montgomery County Police Department. Another detective instructed the prosecutrix on how to use the machine. The rape victim received and recorded telephone conversations on September 15, 17, and 18 (one call was actually recorded by the victim's daughter). There were eight (8) conversations in all, including the original call.

After each recordation, the prosecutrix telephoned Corporal Evans. He, in turn, would arrange for someone from the police department to pick up the used tape and raplace it with another one. Corporal Evans kept the used tapes locked in his desk drawer. After the Corporal made a master composite tape of all the recorded conversations, he returned the individual tapes to the police department secretarial pool for dictation use.

During the course of a telephone conversation in which the prosecutrix's caller asked to have intercourse with her again, she offered to pay him $1,000 in lieu of intercourse '(e)ven though there's no guarantee that I (the caller) won't bother you. . . . The only thing you have is my word.' In a subsequent conversation, the prosecutrix and her caller arranged for the prosecutrix to deliver $1,000 in a white envelope to the locker room of the Greyhound Bus Station in the District of Columbia. She was to find the key of locker number 326 on top of an electrical 'plug' box, open the locker and place the envelope therein, and return the key to its original location on the box. The prosecutrix then complied with her caller's instructions.

Thereafter, the appellant appeared at the bus station, entered the locker room, picked up the key from the box and proceeded to locker 326. As he approached the locker, Sergeant Lanigan of the District of Columbia Police Department, who had been watching the locker room from a hole drilled in the door between the locker and boiler rooms, emerged from the boiler room. After a brief struggle with appellant, Sergeant Lanigan placed him under arrest.

The appellant was then placed in a lineup at the Montgomery County Detention Center. The prosecutrix was unable visually to recognize anyone, but after hearing the participants in the lineup speak, she identified with 85-90% certainty the appellant as being the person who raped and called her.

Eventually the master tape was sent to the Michigan State Police where Sergeant Lonnie Smrkovski 7 compared by spectrograph the master tape with voice exemplars made by appellant. Sergeant Smrkovski formed the opinion and was allowed to testify at trial that the voice on the master tape and that in the exemplars was one and the same. 8

I.

'Did the trial court err in permitting, for the first time in the State of Maryland, the process of voice identification through spectrographic analysis, introduced through a police sergeant, to be used as substantive proof?'

To determine the admissibility of the spectrographic evidence at trial, a pretrial suppression hearing was conducted. Appellant, through his counsel, vigorously sought to discredit voice identification. Appellant zeroed in on the 'error' factor that is present in an effort to succeed in having the trial judge reject testimony concerning spectrographic analysis as unreliable. Doctor Tosi conceded an error rate of roughly 2% in identification through voice print but pointed out that the 2% error rate is in elimination, not identification. In Tosi's view, a guilty person may be excluded, but an innocent person will not be included. There was expert testimony that the error rate could be considerably higher. Dr. Donald J. Baker, Associate Professor of Hearing and Speech in the Division of Behavioral Social Sciences at the University of Maryland, testified that based upon his readings on the subject of spectorography he thought the error rate for false identification could be as high as 16%. 9

One of the problems surrounding spectrographic analysis in general and the spectrograph in particular had its origin with the inventor, Lawrence Kersta, who was with Bell Laboratories, and who announced that voice prints had the infallibility of fingerprints. 10 That statement, seemingly equating his invention to Newton's Law of Gravity, was a 'red flag' for the scientific community. It created an aura of dubiety that still clings tenaciously to the subject of spectrography. Although great strides have been made since Kersta's comment, there are still many disbelievers.

What has been proven and is acceptable scientifically is usually legally admissible evidence, but what is legally admissible is not necessarily scientifically accepted. Scientists deal in exactitudes, the law in reasonable probabilities. As Judge McAuliffe opined at the pretrial hearing, 'If we did not decide cases except where things were absolutely and mathematically certain, we would not ever decide cases. Even in a criminal case proof beyond a reasonable doubt does not require mathematical certainty.' 11

Were the courts to rely upon 'absolute certainty' in order for forensic evidence to be admissible, many of those areas of scientific expertise commonly received into evidence would of necessity be rejected. By way of example, speed, 12 handwriting, 13 balistics, 14 neutron activation test, 15 seminal stain test, 16 blood tests, 17 analysis of hair and soot, 18 and fibers, 19 are all '. . . known to be incapable of resulting in positive identification . . .', People v. Rogers, supra, 385 N.Y.S.2d at 234, yet the acceptance of such evidence is widely upheld.

In the cases that refuse to permit the introduction of voice prints, supra note 4, the common thread permeating them is that the science of spectrography has not reached the point where it passes muster under the Frye test. In United States v. Addison, supra, the United States Court of Appeals for the District of Columbia, through a three judge panel, held in 1974 that voice prints...

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