State v. Silva
| Decision Date | 02 November 2000 |
| Docket Number | No. 990331-CA.,990331-CA. |
| Citation | 2000 UT App 292,13 P.3d 604 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Joey Luis SILVA, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Scott L. Wiggins, Arnold & Wiggins, PC, Salt Lake City, for Appellant.
Jan Graham, Atty. Gen. and Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, for Appellee.
Before JACKSON, Associate P.J., and DAVIS and ORME, JJ.
¶ 1 Defendant Joey Louis Silva (Silva) appeals his conviction of communications fraud, in violation of Utah Code Ann. § 76-10-1801 (1999), and attempted escape, in violation of Utah Code Ann. § 76-8-309 (1999).
¶ 2 In July of 1998, Silva was an inmate at Davis County Jail where he was being held subject to $25,000 bail. While in jail, Silva befriended another inmate named Calvin Slaugh (Slaugh) who was awaiting sentencing.
¶ 3 In the course of their conversations, Silva told Slaugh that he was related to a bail bondsman and he offered to help Slaugh arrange bail. Silva requested the phone number for Slaugh's brother stating that he would contact the brother and help him arrange bail for Slaugh. Slaugh agreed to this arrangement and gave Silva the phone number of his brother.
¶ 4 Silva called Slaugh's brother from the Davis County Jail and identified himself as an attorney named Paul. Silva told the brother that he was arranging bail for Slaugh, and due to the nature of the charges against Slaugh, Slaugh was being held under a different name to protect him from other prisoners. Silva told the brother that Slaugh's alias was "Joey Silva" and he directed the brother to make all bail arrangements under this alias. Silva then told the brother to contact a particular bail bondsman. Shortly after this conversation, the brother contacted the bail bondsman and indicated that he was willing to pledge his home as collateral on a bail bond for Joey Silva's release.
¶ 5 During this time, an officer at Davis County Jail was reviewing recordings of telephone calls made from the jail as part of an unrelated investigation. On one of these recordings, the officer heard Silva's distinctive voice—Silva has a strong New England accent —and the officer listened long enough to suspect that Silva was engaged in some sort of criminal activity. Consequently, the officer initiated an investigation into the matter, and eight conversations involving Silva were recorded.
¶ 6 Meanwhile, the bail bondsman arranged to meet Slaugh's brother in the jail lobby to finalize the bail agreement. After meeting the brother at the jail and inspecting Joey Silva's booking sheet, the bondsman became concerned that Slaugh's brother was pledging his home as collateral for someone to whom he was not related. The bondsman's concern increased when, contrary to the information on Joey Silva's booking sheet, the brother stated that "Joey Silva" was in his seventies. Due to his concerns, the bondsman continued to question Slaugh's brother in an effort to get the whole story. After some prompting by the bondsman, the brother explained that his brother was actually named Slaugh, but he had been instructed to use the name Joey Silva when he posted bail. The bondsman realized that the brother was being bamboozled and told the jail authorities.
¶7 Silva was charged with communications fraud and attempted escape. Shortly before trial, the State gathered several voice identification witnesses together to determine whether they could identify Silva's voice on the taped conversations. The investigating officer asked these witnesses if they could recognize Silva's voice and played the taped phone conversations for the witnesses. While the tapes were playing, some of the witnesses made comments and nodded their heads indicating that they recognized Silva's voice on the tapes. Another voice identification witness, who was not at this conference, was given tapes for identification purposes. These tapes were marked, "Conversations involving Joey Silva."
¶ 8 During trial, the State called several witnesses to identify the voice on the recorded phone conversations. The witnesses testified that they were familiar with Silva's voice and that they recognized Silva's voice on the tapes. The witnesses also testified that they were sure of their identifications due to their prior interactions with Silva and the unique characteristics of Silva's voice—especially his heavy New England accent. During the examination of one of these voice identification witnesses, Silva learned of the circumstances under which some of the witnesses initially heard the tapes. Consequently, Silva moved to suppress the voice identification of the witnesses, asserting that the circumstances surrounding the identifications were unduly suggestive. Pursuant to Silva's motion, the court evaluated the threshold admissibility of the voice identification testimony of each witness by engaging in an analysis akin to that required for the admission of eyewitness testimony. The court then concluded that the identifications were admissible. The jury ultimately found Silva guilty of communications fraud and attempted escape.
¶ 9 Silva argues that the court erred in admitting the voice identification testimony of the State's witnesses. Silva first asserts that the court thereby deprived him of due process. Therefore, "[o]ur task is to review the record evidence and determine from the totality of the circumstances whether the admission of the identification is consistent with the due process guarantees of article I section 7 [of the Utah Constitution]." State v. Ramirez, 817 P.2d 774, 781 (Utah 1991) ().
Id. (citation omitted).
¶ 11 After reviewing the trial court's legal decision for correctness, we apply an abuse of discretion standard in determining whether the trial court reasonably determined that the witness properly identified the voice on the tape under Rule 901. See id.
¶ 12 Silva also argues that he did not receive effective assistance of counsel because his counsel did not request a cautionary jury instruction regarding the voice identification testimony of the State's witnesses. "`When, as in this case, the claim of ineffective assistance is raised for the first time on appeal, we resolve the issue as a matter of law.'" State v. Gallegos, 967 P.2d 973, 975-76 (Utah Ct.App.1998) (citation omitted).
¶ 13 Finally, Silva argues that there was insufficient evidence to support his conviction for attempted escape.
The court's "` "power to review a jury verdict challenged on grounds of insufficient evidence is limited."'" "We will reverse a jury verdict only when, after viewing the evidence and all inferences drawn therefrom in a light most favorable to the verdict, we find that `the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.'"
State v. Rudolph, 2000 UT App 155, ¶ 22, 3 P.3d 192 (citations omitted).
¶ 14 Silva contends that the trial court erred when it admitted the voice identification testimony of several witnesses because the State conducted an unduly suggestive pretrial identification procedure. Silva argues that the procedure was unduly suggestive because the State gathered several witnesses together in the same room for the purpose of identifying Silva's voice on tape recorded phone conversations; and, in the case of another witness, the State presented the witness with tapes labeled "Conversations with Joey Silva."
¶ 15 Generally, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Utah R.Evid. 901(a). Rule 901 provides, by way of illustration, that a witness may identify a voice on a recording "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." Utah R. Evid. 901(b)(5). The Supreme Court of Utah has declared that "for identification by voice of a person to be sufficient [to sustain a conviction], the identifier must either be familiar with the voice of the person identified or that person's voice possesses some peculiar characteristic which could not be easily mistaken." State v. Kilpatrick, 110 Utah 355, 357, 173 P.2d 284, 285 (1946) (per curiam); accord State v. Booker, 709 P.2d 342, 345 (Utah 1985) ().
¶ 16 Silva argues that the trial court should not have admitted the voice identification testimony because voice identifications involve the same reliability concerns inherent in eyewitness identifications. See State v. Long, 721 P.2d 483, 488-93 (Utah 1986) (). Silva reasons that, due to these reliability concerns, the strict...
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