State v. Cadle, 28

• Decision Date: 08 January 1982
• Docket Number: No. 28,28
• Citation: 634 S.W.2d 623
• Court: Tennessee Court of Criminal Appeals
• Parties: STATE of Tennessee, Appellee, v. Jimmy CADLE, Appellant.

Page 623

634 S.W.2d 623

STATE of Tennessee, Appellee, v. Jimmy CADLE, Appellant.

No. 28

Court of Criminal Appeals of Tennessee, at Knoxville.

Jan. 8, 1982.

J. Andrew Hoyal II, Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevierville, Richard Scroggins, Asst. Dist. Atty. Gen., Dandridge, for appellee.

A. Benjamin Strand, Jr., Dandridge, for appellant.

OPINION

DAUGHTREY, Judge.

The appellant-defendant, Jimmy Cadle, was charged in two separate indictments with the sale of controlled substances. The two charges were tried at the same time resulting in guilty verdicts and the imposition of two consecutive four year sentences. On appeal Cadle raises multiple issues for our review, the most crucial of which stem from a violation of Rule 16(a)(1)(A). For the reasons stated below, we remand the case for a new trial.

The proof at trial showed that the two drug sales in question were made by Cadle to an undercover narcotics agent, Mack Smith, who had been introduced to the defendant through an area informant, Terry Lyle. Lyle was allegedly present at the first sale of 50 methaqualone (Quaalude) tablets which occurred in the defendant's trailer home. According to Smith, he contacted the defendant by telephone four days later and arranged for a similar buy of 50 Quaaludes, which also occurred at Cadle's residence, on this occasion in the presence of the defendant's live-in girlfriend, Penny Reneau.

Cadle took the stand in his own defense, and, while admitting that he had a "drug and alcohol problem" and had possessed small amounts of drugs for his own use in the past, he denied making any sales to Mack Smith. He also denied having ever met the agent or having talked to him on the telephone. Penny Reneau likewise testified that she had never met Smith nor witnessed a drug sale by Cadle to Smith.

In rebuttal, the State was permitted to introduce through agent Smith a tape-recorded telephone conversation supposedly held between Smith and Cadle a month after the two sales occurred. On surrebuttal Cadle testified that it was not his voice on the telephone, but he was prevented from calling Penny Reneau to testify to the same effect.

It is the introduction of the taped telephone conversation which, under the circumstances, has produced reversible error in this case. The defendant had filed a pre-trial discovery motion under Rule 16(a)(1)(A), Tennessee Rules of Criminal Procedure, seeking (among other items) the disclosure of any written or recorded statements made by him to any state representative. The assistant prosecutor responded by letter three weeks prior to trial, saying that he was "unaware of any statements, as such, made by the defendant." But according to statements made by the District Attorney on the morning of trial, undercover agent Mack Smith had recalled making the tape recording of his conversation with Cadle only the night before trial and searched through his records to locate it. He turned it over to the prosecutor while the jury was being selected. After jury selection was completed, but before the jury was sworn, the District Attorney informed defense counsel of the tape's existence. The prosecutor, the defense attorney, and the defendant then retired from the courtroom to listen to the tape. After hearing the recording, the defendant told his lawyer that it was not his voice on the tape.

Returning to the courtroom, the defense attorney claimed violation of Rule 16 and requested a continuance, saying that he wished to investigate the legality of the recording, as well as its authenticity. He notified the court that his client maintained that the voice on the tape was not his, and he suggested to the court that he wished to inspect the tape more closely and perhaps secure voice analysis in an effort to disprove its authenticity.

The trial court decided that the State had indeed violated Rule 16 and therefore could not introduce the tape as part of its case-in-chief. However, the trial judge ruled that the recording could be used for impeachment purposes. The State now argues that this restriction, together with the fact that the defendant had the opportunity to hear the tape before it was played to the jury and the opportunity to cross-examine the witness who introduced it, was a sufficient sanction and contends that under Rule 16(d)(2), the trial judge did not abuse his discretion in this regard.

Rule 16(d)(2), governing failure to comply with a request for pre-trial discovery, provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.

From a reading of the rule, it becomes obvious that the sanction to be applied for non-compliance must fit the circumstances of the individual case. Thus, in some instances mere inspection, coming even as late as it did in this case, may serve to protect the defendant's interests. In other situations, a continuance may be required to give the accused a chance to meet the State's previously undisclosed evidence, or the court may be required to exclude the evidence altogether. The suitability of an individual alternative will always depend on the nature of the statement and the basis upon which it is being challenged.

Thus, in United States v. Fogelman, 586 F.2d 337 (5th Cir. 1978), the trial court partially suppressed an undisclosed tape recording of the defendant's marijuana-related conversation with an informant, disallowing its use during the government's case-in-chief. The court permitted use of a transcript of the tape for impeachment purposes, however, after the defendant testified that his acquaintance with the informant was superficial only and did not involve marijuana. The reviewing court upheld this ruling, holding that a procedural shield should not be perverted into a license to engage in perjury, provided that the trustworthiness of the evidence is not in question.

In this case, by contrast, the defendant called into question the trustworthiness of the evidence, i.e., its authenticity, as soon as he learned of its existence, requesting a continuance at a timely point prior to the swearing of the jury and the commencement of the trial. The trial judge denied the continuance, telling defense counsel, "(Y)ou could only be in a much worse position when it (the trial?) came back.... If it were tried tomorrow or next week, then you would be on full notice. You would have no objection whatsoever. It would be admissible...."

This was the only reason given by the trial judge for denying a continuance, and, of course, it begs the question. For by giving defense counsel a continuance, the trial judge would indeed have guaranteed the defendant "full notice" of the content of the recording, a right which is provided him under Rule 16(a)(1)(A), and would thus have avoided any objection to the introduction of the recording at the rescheduled trial.

To compound the problem, the trial court allowed the undercover agent to testify that in his opinion, based on only one prior telephone conversation with the defendant, it was Cadle's voice at the other end of the recorded conversation. But the court barred defense testimony by a witness much more familiar with the defendant's telephone voice to the effect that the voice on the recording was not Cadle's. Thus, we conclude that the defendant was improperly prevented from meeting evidence which was presented against him at the last minute and which he was unable to rebut other than through his own uncorroborated denial. See generally Stroup v. State, 552 S.W.2d 418, 420 (Tenn.Cr.App.1977); Annot., 70 A.L.R.2d 995.

There can be little doubt that the tape recording in this case was crucial evidence against the defendant. As his own attorney characterized the lawsuit, it amounted to a "swearing contest" between Cadle and Smith, tried in the absence of a material witness to one of the sales, informant Terry Lyle. ^* It cannot be doubted that under these circumstances the tape recording which purported to be a drug-related conversation between Cadle and Smith took on critical importance in the jury's...