State v. Myers, 38683

• Decision Date: 27 April 1973
• Docket Number: No. 38683,38683
• Citation: 190 Neb. 146,206 N.W.2d 851
• Parties: STATE of Nebraska, Appellee, v. Dale (Spike) MYERS, Appellant.
• Court: Nebraska Supreme Court

Page 851

206 N.W.2d 851

190 Neb. 146

STATE of Nebraska, Appellee, v. Dale (Spike) MYERS, Appellant.

No. 38683.

Supreme Court of Nebraska.

April 27, 1973.

Syllabus by the Court

1. Tape recordings of relevant and material conversations are admissible as evidence of such conversations and in corroboration of oral testimony of the conversations, provided proper foundation is laid.

2. A rerecording of an original tape recording is admissible where proper foundation is laid and such rerecording from the original was necessary because of the poor quality of the original. The admission does not constitute a violation of the best evidence rule.

3. A defendant may not complain of the use of lawful tape recordings of conversations between himself and an undercover agent made when he was not yet accused or under indictment when he has taken no steps to discover such evidence under section 29--1912, R.R.Supp., 1972, and has himself on cross-examination elicited from the witness oral testimony of the conversation.

4. An undercover agent who associates himself with the police before association with the wrongdoer or before the actual perpetration of the offense is not an accomplice.

5. Nebraska Jury Instruction 14.81 pertaining to the credibility of witnesses is applicable to the testimony of a defendant and it is not usually necessary to give at defendant's request a special instruction highlighting his testimony.

6. Admissions generally pertain to a past offense or transaction and do not include statements which are part of the res gestae.

7. Where the only evidence in a prosecution involving possession of a controlled substance tends to establish actual physical possession, no special definition of the term possession is required to be given to the jury.

Charles A. Fisher, Chadron, for appellant.

Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

CLINTON, Justice.

The defendant was found guilty by a jury of two separate charges of distributing and delivering a controlled substance, namely, lysergic acid diethylamide, and was sentenced to a term of 16 months on each count, the sentences to run concurrently.

The errors assigned on appeal are: (1) Denial of motion for a continuance during trial; (2) admission of a tape recording of a conversation between the defendant and an undercover agent who was the State's principal witness; (3) the giving or the refusing to give certain jury instructions; and (4) insufficiency of the evidence to sustain the convictions.

The first two assignments are related and we will discuss them together.

One of the transactions which gave rise to the prosecution occurred while the witness, an undercover agent, and the defendant were in an automobile. The witness had at that time on his person a tape recorder and on it had made a recording of the conversation which occurred when the sale and delivery took place. This recording was not of good quality and the volume was poor, and later a rerecording was made from the original. After the jury was impaneled, it was released for the day and a hearing on the admissibility of the evidence of the conversation in the automobile was held before the trial judge. At the end of the hearing the court ruled that the tape recordings were admissible but that the oral testimony of the witness as to the conversation would not be admitted. The witness would, however, be permitted to testify as to the physical acts of the delivery of the substance and the payment of the money. The defendant moved for a continuance on the ground of surprise, claiming he had not previously known of the existence of the tapes.

At the end of the admissibility hearing after the court had announced its ruling and again during trial before the tapes were to be played to the jury, the defendant objected to the playing of the rerecording on the grounds that it was secondary evidence and the admission would violate the best evidence rule. He also objected that the foundation for the admissibility of the tapes was insufficient.

At trial foundation for introduction of the tapes was laid in the following manner. The witness related the time, place, and with whom the conversation occurred; that he had been furnished the recorder by the Nebraska State Patrol; that he turned on the recorder before the conversation began and that it was on during the entire conversation; that later he listened to the tape and to the rerecording of it and that both accurately reflected the conversation; that the tapes had not been altered, changed or erased in any way; and that the voices heard on the tapes were his and that of the defendant. Before the tapes were played the defendant's counsel was permitted to cross-examine further as to foundation and in so doing he had the witness himself testify as to the entire conversation with the defendant. Later both tapes were played to the jury and the witness then testified to the delivery and the sale, i. e., the physical transactions which the tape did not record, but which it corroborated.

The foundation was clearly sufficient. See cases cited in 58 A.L.R.2d 1032. Such recordings are also admissible as corroboration of the oral testimony. 58 A.L.R.2d 1045. The objection that the rerecording was not admissible because it is not the best evidence is not well taken. State v. Lyskoski, 47 Wash.2d 102, 287 P.2d 114; Monroe v. United States, 98 U.S.App.D.C. 228, 234 F.2d 49, cert. den. 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76; 58 A.L.R.2d 1044; United States v. Hall, 342 F.2d 849 (4th Cir.). The facts in this case do not raise any question of deprivation of rights under either the Fourth or Fifth Amendments to the Constitution of the United States. United States v. King, 472...