State v. Morton, s. 13620

• Decision Date: 09 January 1985
• Docket Number: Nos. 13620,13622,s. 13620
• Citation: 684 S.W.2d 601
• Parties: STATE of Missouri, Respondent, v. Audrey MORTON, Appellant.
• Court: Missouri Court of Appeals

Page 601

684 S.W.2d 601

STATE of Missouri, Respondent, v. Audrey MORTON, Appellant.

Nos. 13620, 13622.

Missouri Court of Appeals,

Southern District.

Jan. 9, 1985.

Donald Rhodes, Bloomfield, Thomas L. Arnold, Benton, for appellant.

John Ashcroft, Atty. Gen., Mark S. Siedlik, Asst. Atty. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

A jury found defendant Audrey Morton guilty of two offenses of selling marijuana (§ 195.020). ¹ The first sale took place on July 28, 1983, and the second sale took place the following day. Both sales were made to Richard Rodgers, a police informant, and took place at defendant's house in Cape Girardeau. By agreement the two offenses were tried together. Defendant was sentenced to ten years' imprisonment for each offense, the sentences to run concurrently. Defendant appeals.

Defendant's first point is that the evidence is insufficient to support the verdict. In ruling this point this court must view the evidence in the light most favorable to the state and accept all substantial evidence and all legitimate inferences fairly deducible therefrom which support the verdict. All evidence unfavorable to the state must be disregarded and the submissibility of the case will be determined upon the basis of all the evidence, including those portions of defendant's evidence which favor the state. State v. Stith, 660 S.W.2d 419, 420 (Mo.App.1983).

The state's evidence showed that Rodgers, working undercover with Cape Girardeau police officers, was outfitted with a recording device which was concealed on his person. On the late afternoon of July 28, police officers "strip searched" Rodgers, gave him some cash and dropped him near the home of defendant. Rodgers testified that he entered the home and purchased marijuana from the defendant for $20. The conversation between Rodgers, defendant, and defendant's son Bruce Morton, who was also present at the sale, was recorded. A transmitter permitted the officers to hear the conversation while it was being recorded.

Essentially the same transaction took place on July 29 but this time the third person present was one Caldwell rather than defendant's son. The state's evidence showed that the substance purchased was marijuana. Although police officers had driven Rodgers to the vicinity of defendant's house before the sales and picked him up thereafter, they were not present when the sales took place.

In attacking the sufficiency of the state's case defendant argues that "the only evidence to connect defendant with the crimes was that of Rodgers." The defendant then argues that Rodgers' testimony was unworthy of belief because his reputation for honesty was bad, his descriptions of defendant and her son "were grossly inaccurate," his identification of Caldwell "was entirely inaccurate," Rodgers had been previously convicted "of criminal activity" and "was guilty of further criminal activity within two months after the sales," no one actually saw Rodgers enter defendant's home, and the quality of the tapes "of the conversations" was so poor as to be unintelligible.

As pointed out in State v. Williams, 652 S.W.2d 102, 111[16-19] (Mo. banc 1983), the determination of the credibility of a witness is within the peculiar province of the jury. Furthermore, testimony of a single witness may be sufficient to make a submissible case. Rodgers' criminal record may have affected his credibility but it was for the jury to decide how much weight to give his testimony.

The recordings of the two conversations were introduced into evidence. Also introduced was the recording of a telephone conversation between Rodgers and a woman whom Rodgers telephoned on the evening of the first sale. That telephone call, made from the police station, was to the telephone number listed in the directory for Audrey Morton at her residence. In that conversation arrangements were made for the second sale. Although the recordings may be inaudible in places, other portions are audible. Those recordings merely supplemented the testimony of Rodgers as to the sale transactions. Defendant's first point has no merit.

Defendant's second point is that the trial court erred in receiving into evidence state's Exhibit 2 (recording of the July 28 sale), state's Exhibit 3 (recording of the July 28 telephone conversation), and state's Exhibit 4 (recording of the July 29 sale), and permitting the jury to hear them, because (a) the recordings were of such poor quality that it is impossible to understand what was said or to identify the voices; (b) the recordings were never identified by Richard Rodgers, the person who purported to make them; (c) there was no proper foundation for the admission of the recordings; (d) the recordings show that they had been interrupted twice, and (e) no one identified any voice to be that of defendant.

At the time the three exhibits were respectively offered into evidence defendant objected to Exhibit 2 on the ground "there is no foundation that this is the voice of defendant"; she objected to Exhibit 3 on the ground the exhibit was "not properly identified"; the objection to Exhibit 4 was "no proper foundation." Defendant also made some objections on constitutional grounds to Exhibit 3 and Exhibit 4 but they are not presented here and are thus abandoned.

A ground for objection which is not stated at the time the evidence is offered is not timely presented to the trial court and is not preserved for appellate review. State v. Franco, 544 S.W.2d 533, 537 (Mo. banc 1976); State v. Martin, 651 S.W.2d 645, 652 (Mo.App.1983). A comparison of the objections made at trial with those set forth in defendant's second point shows that many of them were not preserved.

This court has listened to the recordings. Richard Rodgers, who was a participant in all three conversations, testified that all portions of the conversations were recorded, that he had listened to the recordings, and that there had been no changes in them. Detective Casteel, who placed the portable transmitter and recording device on Rodgers, explained their respective functions to the jury. He, too, testified that the entire conversations were taped and there had been no changes or deletions.

Of course Rodgers testified that defendant was the woman whose voice was being recorded at the time of the two sales. Casteel testified that it was defendant's telephone number which was dialed when the telephone conversation took place. The mere fact that portions of a recording are inaudible does not necessarily render the entire recording inadmissible. State v. Miller, 588 S.W.2d 237, 241 (Mo.App.1979). See, generally, 57 A.L.R.3d 746. The trial court did not abuse its discretion in receiving the three exhibits. Defendant's second point has no merit.

Defendant's third point is that the trial court erred in granting, over defendant's objection, the prosecutor's request that the defendant read to the jury, at the close of the presentation of the state's case, an excerpt from Mark Twain's Life on the Mississippi.

On the morning of the trial, and before it began, the prosecutor informed the court in chambers that as his last piece of evidence he was going to ask the court to order the defendant to read "the first few pages" of Life on the Mississippi "so the jury will have a sample of what the defendant's voice sounds like." Defense counsel objected on the ground that "this has not been disclosed to me of any documents that they would have her read--this violates her constitutional right not to take the witness stand." Defense counsel also requested a continuance. The court overruled the objections, denied the request, and stated he was going to require the defendant to read the material.

After the state had presented the testimony of four witnesses, covering over 100 pages of the transcript, the court, at the prosecutor's request and over defendant's renewed objection, asked the defendant to read page 1 from that book. The record shows that the defendant "read briefly" from it. The purpose of the reading was to enable the jury to compare the voice of the defendant with a woman's voice contained on the three recordings which the jury had previously heard.

Defendant asserts that the prosecutor's request was improperly granted because: (a) the request was not made until the morning of the trial; (b) the state had not previously disclosed its intention to make the request although defendant had previously sought discovery; (c) defendant should have been granted a continuance; (d) the comparison was improperly conducted in that the only right way to have done it was to require defendant to speak into a recording device and compare that recording with the others; and (e) the procedure was improperly suggestive in that only defendant's voice was tested.

At the time the prosecutor's request was granted, defendant objected on the grounds set forth in (a), (b), and (c), but failed to do so with respect to (d) and (e). The latter two have not been preserved for appellate review and this court finds no plain error with respect to those two grounds.

A criminal defendant's Fifth Amendment privilege against self-incrimination is not violated by an order of the trial court requiring him to speak, for voice identification purposes, in the presence of the jury. United States v. Williams, 704 F.2d 315 (6th Cir.1983); State v. Spain, 27 Ariz.App. 752, 558 P.2d 947 (1976). See, generally, 3 A.L.R.4th 374 (propriety of requiring criminal defendant to participate in demonstration in presence of jury--voice demonstration cases are collected at p. 421).

In United States v. Williams, supra, a criminal defendant was required, during his trial, to read a "neutral passage" from Time magazine to the jury for purpose of voice identification. Rejecting defendant's claim that his Fifth Amendment privilege had been violated, the court pointed out that the United States Supreme Court had ruled that an individual's distinctive...