State v. Padilla

• Decision Date: 08 June 1982
• Docket Number: No. 5577,5577
• Citation: 98 N.M. 349,1982 NMCA 100,648 P.2d 807
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William PADILLA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 807

648 P.2d 807

98 N.M. 349

STATE of New Mexico, Plaintiff-Appellee, v. William PADILLA, Defendant-Appellant.

No. 5577.

Court of Appeals of New Mexico.

June 8, 1982.

Certiorari Denied July 19, 1982.

Jeff Bingaman, Atty. Gen., Eddie Michael Gallegos, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Shannon Robinson, Hank, Farrah & Associates, Albuquerque, for defendant-appellant.

OPINION

WALTERS, Chief Judge.

Defendant was convicted under § 30-19-3B and C, N.M.S.A.1978, of commercial gambling. He contends on appeal that transcripts of taped telephone conversations were admitted without proper foundation; that evidence of an incorrect translation of one of the tapes by a State's witness was improperly withheld from the jury; and that the court imposed a sentence not authorized by § 31-20-6, N.M.S.A.1978. Another issue raised in the docketing statement was not briefed and is deemed abandoned. State v. Gonzales, 96 N.M. 556, 632 P.2d 1194 (Ct.App.1981).

1. Admissibility of State's Exhibits.

An inspector for the New Mexico Alcoholic Beverage Commission and a State Police officer testified that they listened to taped conversations at the offices of the Organized Crime Commission and identified one of the speakers on the various tapes as defendant. They knew before hearing the tapes that they were expected to identify defendant's voice as one of the persons recorded on the tapes; they were given typewritten transcripts of the conversations which identified defendant by name as one of the speakers. They followed the transcripts as they listened to the tapes. Both the tapes and the transcripts were admitted at trial.

In his official capacity, the inspector had known defendant for fourteen years, and he had spoken with him fifty to one hundred times, perhaps twenty to twenty-five times over the telephone. The police officer, who had monitored several of the wiretapped conversations, had an acquaintanceship with defendant for eleven years. He had personally spoken with defendant twenty to thirty times during that period. Both witnesses positively identified defendant's voice on the tapes. It was shown on cross-examination that those two witnesses had been called by someone who identified himself as defendant on the weekend before the trial. They testified that they were not sure that the voice of the caller was defendant's.

Rules 901(b)(5) and (6), N.M.R.Evid., N.M.S.A.1978, provide illustrations of the kinds of identification evidence that may be made admissible upon satisfactory authentication. Opinions relating to voice identification or identification of telephone conversations are covered by those rules. Defendant acknowledges that the federal courts have permitted testimony of voice identifications under its comparable Rule 901, Fed.R.Evid. (28 U.S.C.A.). Several decisions have held that once a minimal showing has been made that the witness has some familiarity with the voice he identified, his identification testimony may be admitted and the jury may then determine the weight to be accorded to that testimony. E.g., United States v. Cuesta, 597 F.2d 903 (5th Cir. 1979); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Knohl, 379 F.2d 427 (2d Cir. 1967). One state court has said:

A witness need not be an expert in voice identification to testify as to the identity of the defendant.... It is the general rule that testimony by a witness that he or she recognized the accused by his voice is admissible in evidence, provided only that the witness has some basis for comparison of the accused's voice with the voice which he or she identifies as the accused's.... The completeness of the identifications goes to the weight of the evidence and not its admissibility. Mere hesitancy or uncertainty on the part of a witness in identifying an accused by voice recognition affects only the weight and not the admissibility of the testimony.

State v. Weigel, 228 Kan. 194, 195, 612 P.2d 636 (1980). Accord, United States v. Thomas, 586 F.2d 123 (9th Cir. 1978). The degree of familiarity with the voice identified in Thomas, supra, was considerably smaller than in the case now before us, the witness there having conversed with the accused on only three occasions. In United States v. Smith, 635 F.2d 716 (8th Cir. 1980), the identifying witness had heard defendant's voice only twice. Nevertheless, in both cases the witnesses were permitted to give voice identification testimony concerning taped conversations of the defendants.

Defendant objected at trial to evidence regarding the witnesses' recognition of defendant's voice on the tape recordings. On appeal, he objects to the admission of the transcripts of the taped conversations on grounds that the procedure of the identifications was impermissibly suggestive-"worse than a one-man lineup." There is no contention that either the tapes or the typed transcripts were incomplete or inaccurate; the sole question is whether the method of voice identification was so improper that the identification testimony should have been suppressed.

The New Mexico test for suppressing an out-of-court identification, adopted from Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), does not rest entirely on whether the identification procedure was impermissibly suggestive. Rather, the totality of the circumstances leading to reliability of the identification is to be weighed against the corrupting effect of the suggestive identification. This rule and the indicia of reliability are set forth in State v. Nolan, 93 N.M. 472, 601 P.2d 442 (Ct.App.1979), and were followed in State v. Wheeler, 95 N.M. 378, 622 P.2d 283 (Ct.App.1980). The same rules should apply in identifying the voice of an accused.

The procedures for voice identification in the instant case closely parallel those followed in United States v. Basey, 613 F.2d 198 (9th Cir. 1979), and United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), where the identifying witnesses had been alerted to the identity of the person whose voices they were asked to recognize. In Pheaster, supra, the court found the procedure "undeniably suggestive," but nevertheless reliable "under the attendant circumstances." (544 F.2d at 371.) Similarly, in Basey, supra, the agent was asked to listen to and identify voices on a tape he knew was to become evidence in the trial against defendant. He also knew it was likely that defendant's voice was on the tape, and he knew that a name used in the recorded conversations was defendant's nickname. Other evidence showing the reliability of the agent's identification was held sufficient to overcome the suggestiveness of the procedure used.

The elements of reliability in this case, through the evidence of the witnesses referred to as well as from testimony of other witnesses concerning the discernible pattern of business conducted over the identified telephone and the methods used for placing the wiretaps, monitoring, recording, and transcribing the conversations (see Annot., 79 A.L.R. 3rd 79 et seq. (1977), Sufficiency of Identification of Participants as Prerequisite to Admissibility of Telephone Conversation in Evidence), were well established.

The court did not abuse its discretion in admitting the evidence complained of in view of the totality of the circumstances and the witnesses' familiarity with and unequivocal recognition of defendant's voice. State v. Wesson, 83 N.M. 480, 493 P.2d 965 (Ct.App.1972).

2. Exclusion of impeaching evidence.

On the weekend before trial, someone called the liquor inspector whose testimony we have discussed above, and identified himself as defendant. That conversation was taped and played by defendant during a time the jury was excused, in defendant's cross-examination effort to test the witness's credibility regarding his ability to identify defendant's voice. The witness interpreted his response in Spanish during a part of the conversation as saying that he did not recognize the caller's voice. An official court interpreter said that the witness said, instead, "Oh, yes, I recognize your voice." The court refused to allow the discrepancy in interpretation to be brought before the jury. The defendant did not offer the tape into evidence.

Defendant argues here that he was "denied due process of law when the court excluded the tape * * * and the translation of the Spanish phrase into English." That argument is different from what was presented at trial: he argued there that the inspector's testimony should be excluded because the tape and the interpreter's translation of the Spanish phrase proved the unreliability of the inspector's voice identification.

Contrary to defendant's appellate contention, a request to exclude the inspector's testimony did not "put the court on notice" that the tape and its variant interpretation were being offered for admission. The issue was not preserved for review. State v. White, 94 N.M. 687, 615 P.2d 1004 (Ct.App.1980); N.M.R.Crim.App.P. 308, N.M.S.A.1978.

3. The sentence imposed.

Defendant, convicted of a fourth degree felony bearing the penalty of eighteen months' maximum imprisonment, received a deferred sentence of five years, probation for five years, and the obligation to pay prosecution costs of $2,500 at the rate of $500 per month. He was ordered further to perform sixteen hours of community service per week during his first two years of probation and eight hours per week for the last three years. Defendant objects to the sentence on the grounds that § 31-20-6, N.M.S.A.1978, limits costs of probation to actual costs not to exceed $200 annually; that § 31-20-7, N.M.S.A.1978, prohibits a period of deferment beyond the maximum term of imprisonment which could have been imposed; and that the community service ordered to be performed is not authorized by law.

State v. Gonzales, 96 N.M. 556, 632 P.2d 1194 (Ct.App.1981), held that...