State v. Hershel Earl Rogan, Iii, 94-LW-2140

• Decision Date: 30 March 1994
• Docket Number: 93-CA-11,94-LW-2140
• Parties: STATE OF OHIO, Plaintiff-Appellee v. HERSHEL EARL ROGAN, III, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. HERSHEL EARL ROGAN, III, Defendant-Appellant

No. 93-CA-11.

94-LW-2140 (2nd)

Court of Appeals of Ohio, Second District Champaign

March 30, 1994

T.C. Case No. 92-CR-165.

Darrell L. Heckman (S.Ct. Regis. No. 2389), Prosecuting Attorney's Office, 40 Monument Square, Urbana, Ohio 43078, Attorney for Plaintiff-Appellee.

Robert M. Strapp (S.Ct. Regis. No. 21255), P.O. Box 38183, Urbana Ohio 43078, Attorney for Defendant-Appellant.

OPINION

FREDERICK N. YOUNG, J.

Hershel Earl Rogan, III (appellant), is appealing from his conviction of guilty on two counts of trafficking in drugs R.C. 2925.03(A)(1). He brings to us only one assignment of error:

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE STATE'S EXHIBIT 7, A TRANSCRIPT OF TAPE RECORDINGS PREPARED BY A POLICE OFFICER.

Our discussion of the facts of the case and the course of the trial shall therefore be generally limited to matters which are relevant to that single issue on this appeal.

I.

The appellant was indicted in November, 1992, of four counts of trafficking in drugs. Each count involved crack cocaine and contained a specification of a prior conviction of a felony drug abuse offense. The first count alleged the commission of a felony drug offense on October 14, 1992, and the second and third counts alleged commission Of the same offense on the succeeding days of October 15 and 16, 1992. These three alleged offenses were secretly recorded by the police from the transmission off a body wire worn by the alleged purchaser of the drugs, Glen Otway (Otway), known in law enforcement parlance as a confidential informant.

The fourth count alleged that a drug trafficking felony occurred on June 26, 1992. The alleged purchaser then was not Otway but was a professional undercover police operative. An attempt was made to tape this encounter as well, but the tape was deemed to be of such poor quality that it was never offered into evidence by the prosecution.

Counts one, two and three allege the drug trafficking all occurred at the same location, the Douglas Hotel in downtown Urbana Champaign County, Ohio. Count four alleged that the undercover drug buy was at the Sixty-Eight Motel in Urbana, Champaign County, Ohio.

Otway was a Florida resident who had moved to Urbana for the purpose of obtaining a job and was there during the time of the alleged drug activity. Shortly after his confidential informant work with the police, he returned to Florida and then came back for the trial which was held in February, 1993, in the Champaign County Court of Common Pleas. He testified as to the three transactions which allegedly occurred in the Douglas Hotel in Urbana. He admitted that he had not listened to the tape himself, but he had read the transcript of the tape before testifying. (Tr. 45.) He further testified that in all three occasions, covered by counts one through three, his voice and that of the appellant's were recorded by Officers Purinton and Sergeant Kimpel, both officers of the Urbana Police Department. (Tr. 71.) Both officers testified that they heard the voices of Otway and the appellant during the transmission from the body wire. Sgt. Kimpel knew the appellant from previous experience and recognized his voice. both officers authenticated the tape during their testimony.

Officer Purinton testified that he made a typed transcription of the tape. The transcription was marked as State's Exhibit 7. At that point, counsel for the appellant objected to the use of the transcript by the prosecution on two grounds, to-wit: (1) that the officer who transcribed the tape is not an expert in transcribing tapes, and (2) that the tape itself was the best evidence. The objection was overruled, (Tr. 100.)

The transcript is titled as follows:

BELOW IS A NONPROFESSIONAL TRANSCRIBED REPORT OF A BUY TAPE BETWEEN HERSHEL E. ROGAN III AND AN URBANA POLICE DEPT. CONFIDENTIAL INFORMANT.

On the witness stand, the officer frankly admitted that he was not a professional at transcribing audio tapes but he swore under oath that the transcript was a true and accurate record of the tape. He stated it took him five to six hours to transcribe it and described the process he went through as follows:

A. This transcribed report, went into detail, sit down at a desk, with a pen and piece of paper and listened to the full entire tape. That means, if I missed a part, I go back and relisten to the same part of the tape over and over and over again until I believe I have the proper recording, wording, then.

Q. In fact, it's difficult to hear the tape if you are just trying to listen through it straight through, isn't it?

A. That's correct.

Q. Let's talk about the -- let's talk about the tape itself in front of you, State's Exhibit 6 marked for identification purposes. Can you identify what that is? It's to the right.

A. Oh, this?

Q. Yes.

A. This is a microcassette that we use in our recording which is attached to our body wire that we use to tape our undercover operation.

Q. Was this the tape that was used in the Hershel Rogan investigation?

A. Yes, sir. It was.

(Tr. 101-102.)

Officer Purinton was then asked by the prosecution to read from the transcript with regard to the alleged cocaine buy on October 14, 1992. He did, but when the prosecution directed him to do the same thing for the alleged transaction on October 15, the trial court interrupted and the following dialogue ensued:

Q. I want to ask you to look on State's Exhibit 7 again.

THE COURT: Counsel, approach the bench, please.

BENCH CONFERENCE.

THE COURT: Testimony will not be permitted by this witness of the transcript. The Court shouldn't have allowed it before. It sneaked in. I didn't stop it in advance. I have authorized the marking of the exhibit and the exhibit can be offered for evidence, but this witness will not read what he says took place of the conversation. He can utilize his memory --

MR. SELVAGGIO: Okay.

THE COURT: -- of the situation. So we have the awkward situation that defense counsel can cross-examine as to the first situation, because the court erroneously allowed that testimony, but you can cross-examine by using the same document that he read. Your cross-examination as to the subsequent one is limited to what he testified to, and he is not using that document as his testimony. He is not going to be allowed to read it.

MR. STRAPP: But I can't cross-examine him on what he did read?

THE COURT: Yes, because I allowed it in.

MR. SELVAGGIO: On the specific statements that he read?

THE COURT: Just like the Court's ruling that you couldn't go back beyond -- beyond what you did. I made the mistake. Okay.

(Tr. 105-106, emphasis supplied.)

As to the second count of the indictment regarding the events of October 15, Officer Purinton conceded that no buy had taken place and, in fact, the transcript in regard to that transaction is headed with the date of October 15, 1992, followed by, in parenthesis, "offer to sell".

The prosecution then turned to the events of October 16 (Count III) and Officer Purinton testified, in part, as follows:

A. I heard conversation between Mr. Rogan and Mr. Otway. There was discussion on whether or not -- It was when the transaction began, whether or not the crack that was being sold was real or not. Our CI stated that it tasted like baking soda, and the defendant stated that, Well [sic], it's supposed to taste that way because they use that in the mixture.

(Tr. 109.)

As to that part of the transaction on October 16, the transcript of the tape reads as follows (C.I. is confidential informant and H.R. refers to the appellant):

C.I. You're going down to get more tonight. Huh? Are they real?

H.R. It's real. It tastes weird, don't it?

C.I. Yea.

H.R. (Not understandable)

C.I. It tastes like baking soda man.

H.R. Because they put so much in [of?] it in every rock.

C.I. It doesn't taste real.

(State's Exhibit 7, at 6.)

At the end of the transcript (State's Exhibit 7) the following appears above the signature of Officer John K. Purinton:

THIS IS NOT A PROFESSIONAL TRANSCRIBED REPORT OF THE CONTENTS OF THE BUY TAPE CONCERNING HERSHEL E. ROGAN III. HOWEVER, THE CONVERSATION TRANSCRIBED IS A TRUE AND ACCURATE RECORD OF THE CONTENTS OF THE BUY TAPE.

Id., at 7.

Police officers then testified as to the alleged buy of crack cocaine on June 26 (Count IV). As stated earlier, the purchaser of the contraband drug in this case was not Otway but was an undercover agent of the Logan County Sheriff's Department, Tony Robinson. The confidential informant in this transaction was one Mike Asterino who testified that he set up the drug deal and introduced Deputy Robinson to the appellant in a motel room at the Sixty-Eight Motel in Urbana. The police attempted to tape this transaction also, but admitted that the tape was "not legible", (Tr. 163), and it was never introduced by the state.

Mr. Asterino testified that he was a witness to the drug transaction on the 26th.

After the state closed its case, counsel for the appellant presented an active defense, which included putting appellant himself on the witness stand. The appellant admitted a prior conviction for selling cocaine in the same county (Tr. 206) and admitted that he knew Otway and had been in Otway's room in the Douglas Inn on the dates of October 14, 15, and 16, 1992, but absolutely denied under oath that he had ever sold or offered to sell crack cocaine to Otway. (Tr. 220.) He also directly denied that he had sold any crack cocaine to Officer Robinson (Tr. 228) and claimed that he had never seen Officer Robinson before the trial (Tr. 226). Under cross-examination, appellant admitted that "there was a discussion about cocaine" on the 14th of October and also on the 15th of October, and...