State v. Settle

• Decision Date: 28 February 1984
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Robert J. SETTLE, Appellant. 34276.
• Court: Missouri Court of Appeals

Page 7

670 S.W.2d 7

STATE of Missouri, Respondent, v. Robert J. SETTLE, Appellant.

No. WD 34276.

Missouri Court of Appeals Western District.

Feb. 28, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 1, 1984.

Application to Transfer Denied

June 19, 1984.

James R. Wyrsch and Mary Beth Gardner, Kansas City, for appellant; Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, of counsel.

John Ashcroft, Atty. Gen., and Sandra K. Stratton, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.

PRITCHARD, Presiding Judge.

Appellant was convicted by the verdict of a jury of the sale of a controlled substance, hydromorphinone (dilaudid), and his punishment was assessed at eight years imprisonment which the court imposed in accordance with the verdict.

The facts are these: Detective Larry L. Sprouse was employed with the Kansas City Drug Enforcement Unit of the Kansas City Police Department, with duties of purchasing narcotics as an undercover agent in August, 1981. Sprouse had been contacted by phone by one Fawn Overcash, an informant, who told him that appellant was willing to sell him dilaudid. Fawn gave Sprouse a telephone number which he called from the DEU office in a closed telephone booth. Before calling, Sprouse attached a Sony portable tape recorder to the telephone and recorded the conversation which took place at 12:47 p.m., on August 27, 1981. The purpose of that call was to arrange a price of the narcotic. Sprouse was to call later, which he did, from a 7-Eleven store, and he was told to meet appellant at the Pizza Hut at 39th and State Line. At about 1:25 p.m., at the latter address, Sprouse observed a yellow Cadillac drive up and park next to him and another officer. Sprouse got out, leaving the other officer in his car, and entered the Cadillac on the passenger side. A young white woman, Cathy, was seated in the middle, and a man, identified as "Bob", was in the driver's seat. The young woman handed Sprouse three pills. He tried to hand Bob $100, but the young woman took the money, and $20 more which she said they needed. As Sprouse was getting ready to leave, he thanked them and "Mr. Settle said that was okay, no problem, he could get all I wanted, just give him a call."

Sprouse was asked, "Q After the phone conversation, did you have occasion to meet with Mr. Settle? A Yes, sir, I did. Q Have you talked with him in person other times after that: A Yes. Q You have talked with him on the phone at other times after that, is that correct? A Yes, sir. Q I would ask you, the person you talked to on August 27th, 1981 at 12:47, as reflected on the tape, State's Exhibit No. 1, is that the defendant, Bob Settle? A Yes, sir, it is." And, "Q So as to be clear on this phone conversation of August 27th, you talked with this gentleman several times on the phone since then, haven't you? A Yes, sir. Q And you have met him in person after August 27th? A Yes, sir. Q There is no doubt in your mind the man you talked to on August 27th at 1247 is the defendant, Bob Settle? A None whatsoever."

Robert Frank Booth, a chemist, conducted a laboratory analysis of the three pills and found them to be hydromorphinone, an opiate derivative, which is a controlled substance.

The tape recording was received into evidence, over appellant's objection, along with a transcription thereof, which Sprouse testified to be accurate, but no objection was made to the receipt into evidence of the transcription.

Appellant first attacks the admission of the tape recording of the telephone conversation on several specific contentions going to his claim of a lack of sufficient foundation therefor. He says that the state failed to show that the recording device was capable of taking testimony. The factors to be taken into account for the admissibility of tape recordings are set forth at page 44 of State v. Spica, 389 S.W.2d 35 (Mo.1965), citing 58 ALR 2d 1027. Here, obviously the Sony recording device did in fact record the first telephone conversation as testified to by Sprouse. He played it shortly afterwards to the prosecutor, to defense counsel, to other officers of the police department, it was played directly to the jury, and a transcript of it was made as the evidence shows. This shows that the recording device was capable of taking testimony in accordance with the first requirement of the Spica case. See United States v. Moss, 591 F.2d 428, 433 (8th Cir.1979), where it was said, " * * * the very fact of the existence of the tape recordings establishes the recording devices were capable of picking up sounds."

Appellant next says that there was no showing that Sprouse was competent to operate the recording device. He hooked the device to the telephone jack and operated it himself. Although there was no showing that he had ever done that before and obtained a good recording, or that he had received training on the procedure, or that the process was so elementary that no training was required, the fact of an audible and understandable recording was made remains. That fact would tend to establish that Sprouse was competent to operate the machine, a conclusion analogous to the holding in United States v. Moss, supra.

Contending that the fourth requirement of the Spica case was not complied with, appellant says that the authenticity and accuracy of the tape recording were never established. The evidence is that Sprouse sealed and marked the tape which thereafter remained in police custody. He testified that no deletions or additions were made to the tape. This evidence was sufficient to establish the authenticity and correctness of the tape recording. See United States v. Hassell, 547 F.2d 1048, 1054 (8th Cir.1977), cert. denied, 430 U.S. 919, 97 S.Ct. 1338, 51 L.Ed.2d 599; and compare Williams v. State, 558 S.W.2d 671, 674-675 (Mo.App.1977), where it was said that defendant did not point to any evidence to show that any change, addition or deletion had been made in the tape. (The officer there testified (as here) that no changes, alterations or deletions had been made in the tape.) As noted, the tape being sealed, marked and retained in police custody, shows that it was properly preserved, the fifth requirement of State v. Spica, supra.

Appellant says that there was a failure to identify the speaker on the tape recording (and telephone conversation). Although Sprouse had not spoken with appellant prior to the time he first telephoned him and hooked up the tape recorder to the telephone, he testified that he had spoken with him several times thereafter, both in person and by telephone. There was no doubt in his mind that the telephone conversation (tape recorded) of August 27, 1981, was with appellant. There was sufficient identification of appellant as the speaker. See State v. Steele, 445 S.W.2d 636 (Mo.1969); State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 (1935). Nor was the identification based upon hearsay testimony (of the informant) because that evidence was not offered to prove the truth of the subsequent telephone conversations, but merely to explain Sprouse's subsequent act of making the telephone call. Compare State v. Brooks, 618 S.W.2d 22, 25[6, 7] (Mo. banc 1981).

No objection was made to the admission of the transcription of the tape recording. State's counsel, during pre-trial proceedings, announced his intention to play the tape to the jury and to provide it with the transcription. Appellant's counsel then expressed concern about the chain of custody of the tape and foundational requirements for its admission. He suggested that it might be better if the transcript was given to the jury after the tape was played so he could make inquiry as to the method of transcription if the tape itself appeared to be incoherent. After the tape was played, counsel withdrew his expression of concern about the transcription. The record shows that the tape recording was played to defense counsel, presumably in pre-trial discovery proceedings, so he was undoubtedly familiar with its content. Although there was no stipulation as to the accuracy of the transcript, clearly the parties agreed to its use in evidence. There was no indication that the tapes were inaudible so that the transcripts would be an aid to the jury in listening to the tapes, and that the suggested guidelines of U.S. v. McMillian, 508 F.2d 101, 105-106 (8th Cir.1974), quoted in State v. Montgomery, 590 S.W.2d 105, 108 (Mo.App.1979), should have been followed. See also State v. Engleman, 634 S.W.2d 466, 480 (Mo.1982). Nevertheless, the matter will be examined to see if there was existent plain error under Rules 29.12(b) and 30.20. Detective Sprouse testified that the transcription was accurate. He heard the telephone conversation, and obviously listened to the tape recording thereof. Quite apparently, the transcription was duplicative and cumulative of the tape recording. In the trial court's discretion [State v. Macone, 585 S.W.2d 64, 68 (Mo.App.1979) ], there was no error in its admission and its consideration by the jury. Nor does the admission of the transcription violate the best evidence rule, for both it and the tape recording were admitted into evidence. See State v. Brown, 607 S.W.2d 881, 885 (Mo.App.1980). Furthermore, appellant does not suggest how he was prejudiced by the admission of the transcription.

None of appellant's contentions, above reviewed, have merit, and Point I, raising the issue of the admissibility of the tape recording...