State v. Marlar

• Decision Date: 20 June 1972
• Docket Number: Nos. 10588,10635,s. 10588
• Citation: 498 P.2d 1276,94 Idaho 803
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Dennis MARLAR, aka Denzil Marlar, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1276

498 P.2d 1276

94 Idaho 803

STATE of Idaho, Plaintiff-Respondent, v. Dennis MARLAR, aka Denzil Marlar, Defendant-Appellant.

Nos. 10588, 10635.

Supreme Court of Idaho.

June 20, 1972.

Webb, Tway & Redford, Boise, for defendant-appellant.

W. Anthony Park, Atty. Gen., Charles P. Brumbach, Asst. Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

Two appeals arising out of the prosecution of defendant-appellant Dennis Marlar, aka Denzil Marlar, were consolidated for presentation to this court. The first involved the propriety of the district court's dismissal of appellant's original appeal due to his alleged failure to diligently perfect the appeal; the second concerns the merits of appellant's conviction for assault with a deadly weapon, specifically whether a telephone call allegedly made by appellant to the complaining witness (Higgins) was erroneously admitted into evidence.

Both parties agree that the motion to dismiss appellant's ap- peal was improperly granted by the district court. When the notice of appeal is timely filed by the appellant, as was the circumstance here, the Supreme Court thereupon acquires jurisdiction and the district court is divested of jurisdiction to render any orders in derogation of such appeal. See Stout v. Cunningham, 29 Idaho 809, 162 P. 928 (1917); Coeur d'Alene Turf Club, Inc. v. Cogswell, 93 Idaho 324, 329, 461 P.2d 107 (1969). Since both parties are cognizant of this rule, and acquiesce to its application in the case at bar, we decline to comment further on the issue of the propriety of the district court's dismissal of the appeal, stating only that such dismissal was error.

We direct our attention to the substantial issue requiring disposition herein-whether prejudicial error was committed by the trial court in admitting into evidence the import of an alleged telephone conversation between appellant and the complaining witness Higgins, wherein appellant allegedly stated that he would 'put you (Higgins) in the morgue.' A brief scenario of the criminal event is necessary to provide the context in which the telephone conversations were introduced into evidence against appellant.

James Higgins, the prosecuting witness, spent the evening of October 26, 1968, consuming alcoholic beverages and conversing with appellant's wife, who was working as a waitress at the Eagles Lodge in Boise. After the Lodge closed, Higgins and appellant's wife left through the back door and entered her car which was parked in the parking lot at the rear of the Lodge.

The testimony indicates that they were conversing, and possibly embracing, when appellant drove his pickup truck into the back of his wife's car. Appellant's wife immediately left the scene; Higgins and appellant alighted from their respective vehicles and approached each other, meeting at the intersection of the vehicles. According to Higgins' testimony, appellant accused him of being with appellant's wife, to which Higgins responded that he was not with anyone's wife. At this retort, appellant allegedly swore at Higgins, hit him him on the head, apparently with a gun, and warned him he had until the count of three to vacate the premises. Since appellant was allegedly pointing a gun at Higgins when he issued the ultimatum, Higgins quickly left by the shortest route. Higgins immediately contacted the police, who apprehended appellant some time later in the parking lot of the Lodge. A gun belonging to appellant containing two bullets was seized by the arresting officer from appellant's vehicle, after appellant had informed the officer where the weapon was located. Both the pistol and the bullets were introduced in evidence.

At the trial, the only account of the alleged assault was given by Higgins. Neither the appellant nor his wife testified. After relating his version of the attack, Higgins was examined by the prosecution concerning certain telephone conversations between appellant and Higgins:

'Q. Since the time this action was filed, this criminal complaint has been filed against Mr. Marler (sic), have you had occasion to talk with him?

A. Several times on the phone; once in Justice Court

Q. Did he advise you when he called who he was?

A. Oh, yes.

Q. Could you tell us what the substance of some of those conversation (sic) with him were?'

At this juncture, appellant's counsel registered objections that there was no proper foundation to link the conversations with the particular case, and that anything that had occurred subsequent to the alleged assault would not be competent. Counsel also complained that the 'when and where' of the conversations were not established. After the court overruled each objection, the examination proceeded:

A. Well, it was at different periods of time that he called. Several times while I was at work; several times at home. The first three or four times was just to request that I either get in touch with his attorney or the prosecutor, which I did, and . . .

Q. For what purpose, did he say?

A. Towards dismissing the charges.

Q. I see. In other words, he asked you if you would get in touch with us so that we would dismiss the charges?

A. That's correct. Q. Did he ever call you at 2:30 in the morning on one occasion?

A. Yes, sir.

Q. You remember what the substance of that conversation was?

A. Essentially that the manner in which the parties involved were going to testify and that I responded to saying that 'that just however they testified would have to be the way they testified,' and I said that 'I didn't want him calling my home anymore,' and he said profanity and then 'I'll put you in the morgue."

Appellant challenges in two respects the admittance of the substance of this conversation, particularly the testimony that appellant threatened to put Higgins in the morgue. Appellant contends first that the call was not properly authenticated; and, second, and in any event, that the import of the alleged conversation is not relevant to the case at hand. Although the objections of appellant's trial counsel were not perfect formwise, they were sufficient to preserve the issues raised on appeal.

Authentication

Subject to the requisites of relevancy, the hearsay and other evidentiary rules, testimony relating the substance of a telephone conversation may be admissible evidence. With regard to such admissibility, the general rule is stated:

'The admissibility of telephone conversations is governed by the same rules of evidence which govern the admission of oral statements made in face-to-face conversations, except that the party against whom the conversation is sought to be used must ordinarily be identified.' 29 Am.Jur.2d Evid., § 380, p. 431 (1967). (Emphasis added.) See Tonkin-Clark Realty Co. v. Hedges, 24 Idaho 304, 133 P. 669 (1913).

In regard to adequately identifying the party placing the call, ¹ for purposes of introducing the import of the caller's conversation into evidence against him, the most usual if not the most reliable mode of identification is the recognition of the caller's voice by the witness (the party called) who intends to relate the conversation. E.g., State v. Peterson, 2 Wash.App. 464, 469 P.2d 980 (1970); Liberty-Mutual Ins. Co. v. Preston, 399 S.W.2d 367 (Tex.Civ.App.1966); New York Life Ins. Co. v. Silverstein, 53 F.2d 986 (8th Cir. 1931); People v. Goodman, 159 Cal.App.2d 54, 323 P.2d 536 (1958). See 29 Am.Jur.2d, supra at § 383. In the absence of voice recognition, it is generally agreed that the mere statement of his identity by the caller is insufficient proof of the caller's identity. E.g., Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771 (Tex.App.1941). See C. McCormick, Law of Evidence, 405-06 (1954); Annot. 71 A.L.R., supra, at 31-34; Annot. 105 A.L.R.,supra, at 332-34. Corroboration of a statement of identity by the caller sufficient to render the conversation admissible against him may be supplied by evidence, (See Annot. 71 A.L.R., supra, at 7) (1) that the subject matter of the call revealed that only the named party would likely have knowledge of those conversational facts; Zimmerman v. Associates Discount Corp., 444 S.W.2d 396 (Mo.1969); People v. Erb, 235 Cal.App.2d 650, 45 Cal.Rptr. 503 (1965); National Aid Life Ass'n v. Murphy, 78 S.W.2d 223 (Tex.Civ.App.1935); People v. McGaughran, 197 Cal.App.2d 6, 17 Cal.Rptr. 121 (1962). See Kansas Electric Supply Co. v. Dun & Bradstreet, Inc., 448 F.2d 647 (10th Cir. 1971). Or (2), of other confirming circumstances which make it probable that the named person was, in fact, the speaker. See Kansas Electric Supply Co. v. Dun & Bradstreet, Inc., supra; Andrews v. United States, 78 F.2d 274 (10th Cir. 1935); Miller v. Liles, 230 Or. 475, 370 P.2d 217 (1962); King v. State, 80 Nev. 269, 392 P.2d 310 (1964); State v. Bates, 52 Wash.2d 207, 324 P.2d 810 (1958). See also Annot. 71 A.L.R. 5, 40-53; Annot. 105 A.L.R. 326, 332-37; McCormick, supra, 405-06.

The identification may be by either direct or circumstantial evidence. In Oregon it has been held that '(s)light circumstances will suffice for this purpose.' State v. Silverman, 148 Or. 296, 36 P.2d 342, 343 (1934). See State v. Glisan, 2 Or.App. 314, 465 P.2d 253 (1970). This de minimus aspect of the rule concerning the degree of identification necessary should not, however, be too heavily emphasized. In order to adequately identify the party against whom the evidence is sought to be introuduced, the circumstance, even though slight, must at least tend to identify the party as the caller. For example, in the landmark case of State v. Silverman, supra, the 'slight' circumstantial evidence placed the defendant and his automobile at a location later referred to by defendant in the telephone call about the car. During questioning at the police station the defendant also admitted talking on the telephone to his brother (the witness relating the conversation) about the car. These circumstances were sufficient for...