State v. Fenley
| Decision Date | 08 June 1982 |
| Docket Number | No. 13481,13481 |
| Citation | 103 Idaho 199,646 P.2d 441 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Charley Carver FENLEY, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Isaac McDougall, Pocatello, for defendant-appellant.
David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.
The Fenley house in Boise was quiet. The body of Dorothy Fenley remained in a chair where she had been sitting when a shotgun blast struck her. Nearly a full day later, the crime had not yet been discovered.
A telephone rang at the home of an Ada County deputy coroner. A male voice told him to go to a specified address where he would find a woman shot to death in a chair. At first the anonymous call was disregarded. But shortly thereafter an inquiring neighbor discovered the body, and the deputy coroner was dispatched to the scene.
After examining the body, the deputy coroner met Charley Fenley at the neighbor's residence. They had talked only for a moment when the deputy coroner abruptly broke off the conversation. "That's the guy I talked to on the phone," he exclaimed to a police officer. "It's the husband."
After several weeks of investigation, the police arrested Fenley and charged him with first degree murder. A jury found him guilty as charged. He is now serving a life sentence in custody of the Board of Correction.
In this appeal the central issue is whether the deputy coroner's identification of Fenley, as the anonymous telephone caller, should have been admitted in evidence. We are also asked to decide whether certain photographs of the victim should have been admitted, and whether the jury's verdict was adequately supported by the evidence. We affirm the judgment of conviction.
Disputes about identity of parties to telephone conversations are not new to Idaho. In Tonkin-Clark Realty Co. v. Hedges, 24 Idaho 304, 133 P. 669 (1913), our Supreme Court upheld admission of evidence identifying a party to whom a telephone call had been made. In the instant case, however, the state sought to introduce against Fenley evidence of a telephone call that he allegedly made. Identification of a party called is measured by rules different from those which apply to identifying the party making a call. State v. Marlar, 94 Idaho 803, 807 n.1, 498 P.2d 1276, 1280 n.1 (1972).
In Marlar, our Supreme Court considered the nature of proof necessary to identify a telephone caller. However, the record in Marlar contained no evidence of voice recognition by the witness who received the telephone calls in question. The present case is the converse of Marlar. In Marlar there was self-identification by the caller, but no testimony as to voice recognition by the witness. Here, the caller did not identify himself, but the witness claimed to recognize the voice after a subsequent contact in person. The witness was allowed, over objection, to state his opinion concerning the identity of the caller. Thus, the precise issue in this case-whether a witness may identify an anonymous caller based upon subsequent voice recognition-is one of first impression in our state. The issue goes to the admissibility of the evidence, not to its weight. Compare, e.g., United States v. Washington, 253 F.2d 913 (7th Cir.), rev'd, 357 U.S. 348, 78 S.Ct. 1373, 2 L.Ed.2d 1368 (1958); People v. Abelson, 309 N.Y. 643, 132 N.E.2d 884 (1956).
Fenley, whose counsel has written a detailed brief on this issue, argues that the instant case is distinguishable from a host of reported cases in other jurisdictions, where such testimony has been admitted. He points in this case to the witness' lack of any prior familiarity with the caller, the limited number and duration of contacts between the witness and the caller, and the fact that the telephone call was not awaited or received from an expected source. Compare cases cited in Annot., 79 A.L.R.3d 79 (1977). However, the reported decisions generally uphold testimony of voice recognition based upon familiarity acquired after, as well as before, the conversation in question. See cases cited in Annot., 70 A.L.R.2d 985, 1002 (1960). Moreover, in our view, the issue is not merely where this case might fall in a catalog of fact patterns. The fundamental issue is whether the testimony in question was admissible under established rules of evidence.
In this context, we take Fenley's argument to embrace two related propositions-that the deputy coroner was not competent to testify about voice recognition, or that if he was competent, his claim of voice recognition was not adequate to support his statement of opinion concerning identity of the caller. Fenley also levels a separate attack on the probative value of the testimony. We will examine the evidence from each of these perspectives, in turn.
The concept of "competency" includes both a witness' general capacity to speak the truth, and the witness' capacity to testify about a particular matter. McCORMICK ON EVIDENCE (E. Cleary 2d ed. 1972) § 69, p. 149. Competency in the latter sense requires that a witness be able to perceive, to recollect and to communicate regarding the occurrences mentioned in his testimony. Clark v. Gneiting, 95 Idaho 10, 501 P.2d 278 (1972); State v. Johnson, 92 Idaho 533, 447 P.2d 10 (1968). In this case, the general capacity of the deputy coroner-a seasoned law enforcement officer-to speak the truth, and his ability to recollect or to communicate, have not been questioned. Neither does Fenley appear to contend that only an "expert" could recognize a voice. Rather, we understand Fenley to urge that, because the telephone call and subsequent contact were brief, the deputy coroner had an insufficient opportunity to perceive whether the voices were in fact the same.
The deputy coroner testified that the telephone caller had a distinctively low, male voice and slurred his speech. The caller asked, "Are you the coroner? "
"Never mind." The caller hung up.
Approximately ninety minutes later, the deputy coroner talked to Fenley in person. He testified that Fenley was intoxicated, that he had a low voice sounding like the voice on the telephone, and that his speech was slurred. The deputy coroner asked him, "Can you tell me where you been the last 24 hours?"
As noted earlier, the deputy coroner terminated the discussion, believing that the previous caller had been Fenley.
The competency of a witness to testify concerning a particular matter is for the trial judge to determine. Clark v. Gneiting, supra. A determination that the witness was afforded adequate opportunity to perceive the facts to which he testifies, and that he is competent to testify, rests in the sound discretion of the trial court. Such a determination will not be set aside absent an abuse of discretion. Egede-Nissen v. Crystal Mountain, Inc., 21 Wash.App. 130, 584 P.2d 432, modified on other grounds & aff'd, 93 Wash.2d 127, 606 P.2d 1214 (1978); cf. State v. McKenney, 101 Idaho 149, 609 P.2d 1140 (1980).
In the instant case the trial court noted that, although the telephone and personal conversations were brief, they occurred close together in time, providing the deputy coroner an opportunity to make a fresh comparison. Moreover, the district court noted that in both conversations, according to the testimony, the phrase "never mind" was used, allowing the witness to make such a comparison, in part, on the basis of identical words spoken. We hold that the district court did not abuse its discretion by ruling, implicitly, that the deputy coroner was competent to testify about voice recognition.
We turn next to the argument that, even if the deputy coroner was competent to testify, his claimed recognition of the voice did not provide an adequate basis for an opinion concerning the identity of the caller. A trial court, in its discretion, may allow a lay witness to state an impression or conclusion about a matter of fact within his knowledge. Howard v. Missman, 81 Idaho 82, 337 P.2d 592 (1959); cf. Pierce v. Barenberg, 91 Idaho 354, 421 P.2d 149 (1966). Consequently, it is the underlying factual basis of the deputy coroner's testimony, not the opinion format of his testimony, that is at issue here.
In State v. Marlar, supra, our Supreme Court stated that voice recognition is "the most usual if not the most reliable mode of identification" of a party placing a telephone call. 94 Idaho at 807, 498 P.2d at 1280. The court said that voice recognition may be based upon "the same voice, speech mannerisms, or other identifying characteristics...." 94 Idaho at 809, 498 P.2d at 1280.
In the present case the deputy coroner testified that he heard the same distinctively low voice in both conversations, that the speech was slurred on both occasions, and that Fenley was visibly intoxicated when contacted in person. In addition, we note that the telephone caller referred to the victim by her full name, "Dorothy Elizabeth Fenley." Use of the victim's middle name would support an inference that the caller was a close friend or relative; and it was consistent with the deputy coroner's voice recognition of the husband. We hold that the deputy coroner's testimony was sufficiently grounded in specific facts to be admitted in evidence. The credibility and weight accorded to such evidence were for the jury to determine.
Taking a somewhat different tack, Fenley suggests that the deputy coroner's testimony was not relevant to the case or, if relevant, should have been excluded because its prejudicial impact exceeded its probative value. We cannot agree. Fenley...
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