State v. Schuette

• Decision Date: 19 April 2002
• Docket Number: No. 87,679.,87,679.
• Citation: 44 P.3d 459,273 Kan. 593
• Parties: STATE OF KANSAS, Appellee, v. DANIEL F. SCHUETTE, Appellant.
• Court: Kansas Supreme Court

273 Kan. 593

44 P.3d 459

STATE OF KANSAS, Appellee, v. DANIEL F. SCHUETTE, Appellant.

No. 87,679.

Supreme Court of Kansas.

Opinion filed April 19, 2002.

Clinton W. Lee, of Scott, Quinlan, Willard & Barnes, L.L.C., of Topeka, argued the cause and was on the brief for appellant.

Thomas G. Lemon, special prosecutor, of Fisher, Cavanaugh, Smith & Lemon, P.A., of Topeka, argued the cause, and Todd D. Powell, of the same firm, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

This is Daniel F. Schuette's direct appeal of his convictions of criminal threat under K.S.A. 21-3419(a)(1) (a person felony) and harassment by telephone under K.S.A 21-4113(a)(2) (a nonperson misdemeanor). Our jurisdiction is under K.S.A. 20-3018(c).

The relevant facts can be tersely summarized. In the early morning hours of May 26, 2000, Theodore Wright received two calls at his home, which was located behind Don's Steak House in Shawnee County, Kansas. During the first call, Wright said, "Hello," but did not hear anyone on the other line and hung up the phone. The second call came immediately afterward. The caller was angry, sounded drunk, and was yelling loudly.

Wright recognized the caller's voice as that of Daniel Schuette. Schuette talked for several minutes. Wright remembered Schuette making the following comments: "I'm going to f... you in the butt, you fagot. I'm going to break your neck and your arms and your legs and chop you up in little pieces and I'm going to kill you." Wright knew Schuette's voice from the several times he had heard him speak while dining at Don's Steak House. He had previously conversed with Schuette by phone when he asked Schuette to stop harassing the waitresses at the restaurant.

Wright's fiance, Lori Holstead, was with him when he received the call. At some point, Wright turned the phone so Holstead could hear the call. She heard Schuette comment that he was going to chop her up into little pieces and kill both her and her children. She recognized the voice as Schuette's, a regular customer at Don's Steak House, where she was employed at the time as a waitress.

Wright reported the call to the Sheriffs Department, and an investigating officer was sent in response. Wright's telephone had caller ID service. His caller ID showed, per his testimony as well as Holstead's and the investigating officer's, that there was a call placed to his home on May 26, 2000, at 7:20 a.m., from Daniel Schuette, accompanied by Schuette's phone number. The caller ID showed that another call from the same phone number was received at 7:21 a.m., but no name registered for that call. The number displayed on the caller ID was the same as that listed for Daniel F. Schuette in both the 1999-2000 and 2000-2001 Southwestern Bell telephone directories.

Schuette was charged and convicted of one count of criminal threat and one count of harassment by telephone. He was sentenced to 12 months' probation, with an underlying prison sentence of 6 months for the felony charge. He appeals, claiming that the caller ID evidence was improperly admitted and the two crimes for which he was charged and convicted were multiplicitous.

Caller ID evidence

In arguing the trial court erred in admitting the caller ID evidence, Schuette contends (1) there was not a sufficient foundation laid, (2) the caller ID evidence was inadmissable hearsay, and (3) admission of testimony concerning the caller ID information violated the best evidence rule.

Generally, the admission of evidence lies in the sound discretion of the trial court. "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." State v. Whitesell, 270 Kan. 259, 276, 13 P.3d 887 (2000).

Schuette argues that because the trial court failed to require any foundation to admit the caller ID evidence, it committed a mistake of law over which this court's review is plenary, citing Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan 443, 445-456, 14 P.3d 1170 (2000). In Kuhn, expert medical testimony was excluded by the trial court based on the test pronounced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We held that admission of the particular expert testimony was not subject to the Frye test, reversing the district court's summary judgment and remanding with instructions. In deciding whether the Frye test was applicable, we noted that while generally the admission of evidence is reviewed for abuse of discretion, it is a question of law as to whether the Frye test should be applied.

Schuette correctly points out there are no Kansas cases which have articulated the necessary foundation for caller ID evidence. Schuette proposes that foundation testimony must establish (1) the scientific or technical principles employed by the caller ID unit, (2) the device was working properly and reliably on the date in question, and (3) the operator of the caller ID unit was sufficiently qualified to use the device. He relies on the Kansas decisions of State v. Lowry, 163 Kan. 622, 185 P.2d 147 (1947), State v. Estill, 13 Kan. App.2d 111, 764 P.2d 455 (1988), rev. denied 244 Kan. 739 (1989), and State v. Primm, 4 Kan. App.2d 314, 606 P.2d 112 (1980).

Prim and Lowry are factually distinguishable. In Prim, the Kansas Court of Appeals considered whether read outs from police radar units were admissible, and the analysis was clearly limited to cases pertaining to radar. 4 Kan. App.2d at 315-17. In Lowry, this court considered and rejected the admissibility of lie detector tests. 163 Kan. 622. Both situations differ from our facts.

In Estill, the Court of Appeals considered the admissibility of a computer-generated "phone trap" record The court explained that a phone trap is where "a telephone company computer traces all calls made to [the requesting customer's] number and records and stores the numbers of the phones from which the calls originated." 13 Kan. App.2d at 112. A Southwestern Bell employee testified the records were kept in the ordinary course of business. He could not testify, on cross-examination, as to the internal operations of the computer. After citing decisions from several jurisdictions pertaining to the admissibility of similar electronic devices, the court concluded:

"We are of the opinion the trial court properly admitted the evidence as a business record. The question of reliability goes to the weight of the evidence and not to its admissibility. The evidence here concerns the method used to employ the trap. A corresponding log attests to the accuracy and trustworthiness of the computer, and the fact that harassing calls were traced to two separate numbers, both tied to the defendant, adds to the information's reliability and trustworthiness." 13 Kan. App.2d at 116.

The Estill court analyzed the opinions of People v. Holowko, 109 Ill.2d 187, 191, 486 N.E.2d 877 (1985), and State v. Armstead, 432 So.2d 837 (La. 1983), which both agreed that computer-generated data (data which is reflective of the internal operations of a computer system), as opposed to computer-stored data (data which is placed into a computer by an out-of-court declarant), should be treated as nonhearsay:

"`The evidence is generated instantaneously as the telephone call is placed, without the assistance, observations, or reports from or by a human declarant. The printouts of such data are merely the tangible result of the computer's internal operations.' ...

"The court in Armstead noted that the underlying rationale of the hearsay rule is that out-of-court statements are made without an oath and their truth cannot be tested by cross-examination. `With a machine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly.' 432 So.2d at 840.

"`Since the computer was programmed to record its activities when it made the telephone connections, the printout simply represents a self-generated record of its operations, much like a seismograph can produce a record of geophysical occurrences, a flight recorder can produce a record of physical conditions onboard an aircraft, and an electron microscope can produce a micrograph, which is a photograph of things too small to be viewed by the human eye.' 432 So.2d at 840." 13 Kan. App.2d at 114.

Two opinions concerning the admissibility of caller ID evidence, cited and relied on by both parties, are also referenced by the Wright and Gold Treatise of Federal Practice and Procedure on Evidence. In discussing Fed. R. Evid. 901(b)(5), authentication of voice identification, the treatise notes:

"Caller ID is a device that displays for the recipient of a telephone call the number of the telephone from which the call was made. While Caller ID information may be admitted to prove the source of the call, a foundation is necessary to establish the proper functioning of that device. [Citations omitted.]" 31 Wright & Gold, Federal Practice and Procedure: Evidence § 7110 n.42 (2000).

The cited opinions are Culbreath v. State, 667 So.2d 156 (Ala. Crim. App. 1995), and Tatum v. Commonwealth, 17 Va. App. 585, 588-89, 440 S.E.2d 133 (1994).

In Tatum, the Virginia court considered as a matter of first impression the admissibility of caller ID evidence. After first holding that caller ID evidence is not hearsay because it is computer-generated information, with no out-of-court declarant, the court analyzed the issue of reliability. The court noted the recipient of the call had received other calls from this particular individual in the past, of which he was able to recall at least one specific instance, and the same number registered on the caller ID. The court found that this was sufficient to...