State v. Couch

• Citation: 646 P.2d 447,103 Idaho 205
• Decision Date: 08 June 1982
• Docket Number: No. 13724,13724
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Michael C. COUCH, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 447

646 P.2d 447

103 Idaho 205

The STATE of Idaho, Plaintiff-Respondent, v. Michael C. COUCH, Defendant-Appellant.

No. 13724.

Court of Appeals of Idaho.

June 8, 1982.

Gerald L. Weston of Gigray, Miller, Downen & Weston, Caldwell, for defendant-appellant.

David H. Leroy, Atty. Gen., Lance D. Churchill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

SWANSTROM, Judge.

A jury found appellant guilty on two counts of delivering cocaine. The deliveries occurred on two separate occasions and were to an undercover police officer. Appellant defended against the charges, claiming entrapment. He now contends that the trial court erred: (1) in admitting into evidence a tape recording of a conversation between the police officer and himself; (2) in allowing the contents of that taped conversation to be read to the jury after they had begun their deliberations; (3) in refusing to grant his motion for a mistrial based on the alleged misconduct of the deputy prosecutor in advising a principal witness to "hide out" in order to avoid being subpoenaed by the defendant; and (4) in refusing to grant a mistrial or dismissal of the charges based on the state's failure to make adequate disclosure of evidence it intended to use at trial. The appellant also maintains that there was insufficient evidence to support the verdict. We affirm appellant's conviction.

Suspicion that appellant was selling cocaine was based on information given to the police by an informant who was then on probation. The information was given to the appellant's arresting officer in exchange for the officer's agreement to "talk to somebody" about restitution owed by the informant to the court. The informant was awaiting a probation revocation hearing due to his failure to pay this restitution in a timely manner.

The informant set up a meeting between appellant and the undercover police officer. The informant drove appellant to the meeting and introduced the officer to the appellant. The informant testified that after the introductions were made he left the car and took a walk. One of the transactions for which appellant was convicted took place in the car at this time. Subsequent to that meeting, the officer telephoned the appellant. The conversation was recorded by the officer via a suction cup device attached to the officer's phone. The appellant was unaware that the conversation was being recorded. No authorization for the recording of the conversation had been obtained from appellant or the phone company. The officer met with the appellant a second time, and again bought cocaine from him.

As the time of trial approached, the informant told the deputy prosecutor that he wouldn't testify for the prosecution; that an officer had promised him he would not have to testify. Hearing that, the deputy recommended that he leave for a couple of weeks in order to avoid being subpoenaed by the appellant's counsel. The informant later testified during an in-camera hearing that the same attorney also told him that, if he did testify and if he "said anything to hurt the prosecution, (his) PV (probation violation) would stand a good chance of going to court, and (the deputy prosecutor) would prosecute it to the fullest." The deputy prosecutor, in his cross-examination of the informant, implied that he had told the informant only to tell the truth if he was subpoenaed as a witness. The informant told the attorney that he would leave his parent's house and go live with some friends. Despite this knowledge, the deputy prosecutor gave defense attorneys the informant's parent's address as the place where the informant could be found.

At trial, the tape recording of the telephone call made by the undercover officer to appellant between their first and second meetings was admitted into evidence and played to the jury. After the jury had retired to deliberate they requested a transcript of the tape recorded conversation. Over appellant's objection the court had the court reporter "read back" the conversation to the jury.

I.

Appellant urges us to find that the officer violated I.C. § 18-6705 when he recorded the telephone conversation between the appellant and himself. This section, as adopted in 1972 Idaho Session Laws ch. 336, p. 968, before its repeal in 1980, provided:

Unauthorized connection with telegraph and telephone wires.-Whoever shall wilfully and maliciously cut, break, tap or make any connection with, any telegraph or telephone wire, or read or copy, by the use of telegraph or telephone instruments or otherwise, in any unauthorized manner, any message, either social or business, sporting, commercial or other news reports, from any telegraph or telephone line, wire or cable, so unlawfully cut or tapped in this state; or make unauthorized use of the same, or who shall wilfully and maliciously prevent, obstruct or delay, by any means or contrivance whatsoever, the sending, conveyance or delivery, in this state, of any authorized communication, sporting, commercial or other news reports, by or through any telegraph or telephone line, cable or wire, under the control of any telegraph or telephone company doing business in this state, or who shall wilfully and maliciously aid, agree with, employ or conspire with, any other person or persons to do any of the aforemention unlawful acts, shall be deemed guilty of felony.... (Emphasis added.)

The statute plainly was intended to prevent interception, by unauthorized connections, of information transmitted by telephone or telegraph wires. We find that the statute is inapplicable to the situation before us. The officer attached a suction cup listening device to his phone to record the conversation. He did not make any contact with the telephone wire, nor did he intercept a message intended for another person. Consequently, the officer did not violate the statute in recording this conversation with the appellant.

Appellant contends that People v. Trieber, 28 Cal.2d 657, 171 P.2d 1 (1946), mandates a different conclusion than we have reached above. Trieber was an appeal from the dismissal of an indictment under a statute similar to I.C. § 18-6705. In Trieber the defendant, with aid from a telephone company employee, obtained extensions from the telephones of two of his neighbors. Although these extensions were installed with the consent of his neighbors, he did not get authorization from the telephone company. The court found that phone company authorization was necessary, and the dismissal of the indictment was held to be error. Here appellant claims that the failure of the police to obtain phone company authorization for the recording made by the officer rendered the recording illegal. However, two important distinctions are present. First, the extensions in Trieber involved installation of equipment and connections with phone company wires in neighboring apartments. Second, the result in Trieber was the interception of messages intended for another person. In this case there was no connection with a telephone wire, but more importantly, there was no unauthorized interception of a message intended for another person.

Thus, even if we assumed that the statute in this case could be treated as a rule for exclusion of evidence, we hold that the trial court did not err in refusing to suppress the recording, because the statute was not in fact violated.

II.

The appellant next contends that the trial court erred in allowing the recorded telephone conversation to be read to the jury after it had begun its deliberations. He argues that this action by the trial court gave undue emphasis to this portion of the evidence, thus minimizing other testimony and evidence presented to the jury.

In Idaho it has been held proper to allow a jury to return to the courtroom from its deliberations in order to rehear testimony. State v. Jester, 46 Idaho 561, 270 P. 417 (1928); State v. Leavitt, 44 Idaho 739, 260 P. 164 (1927). The court in these cases relied upon the predecessor to I.C. § 19-2204. This section provides that After the jury have retired for deliberation, if there is any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, or after they have been called.

The procedure required by this statute was followed.

Idaho Code § 19-2204 was adopted from California Penal Code § 1138. Therefore, cases interpreting California's § 1138 are helpful in determining the application of I.C. § 19-2204. In both People v. Butler, 47 Cal.App.3d 273, 120 Cal.Rptr. 647 (1975) and People v. Litteral, 79 Cal.App.3d 790, 145 Cal.Rptr. 186 (1978), the court reversed criminal convictions where the trial court refused to provide the jury with requested testimony. These cases hold that it is the right of the jury which is the primary concern of the statute.

The Colorado Supreme Court in Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972) stated that:

The overwhelming weight of authority in this country is that the reading of all or part of the testimony of one or more of the witnesses at trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court.

It is, of course, essential that evidence is not so selected, nor used in such a manner that there is a likelihood of it being given undue weight or emphasis by the jury. Id.

From these authorities, we hold that the rule in Idaho requires the trial court to attempt to meet any reasonable requests by the jury for the rereading of testimony. The trial court should exercise its discretion to ensure that a party to the litigation is not prejudiced. Appellant argues that he was prejudiced and he cites State v. Ross, 85 N.M. 176, 510 P.2d 109 (19...