State v. Strothers

• Court: Missouri Court of Appeals
• Writing for the Court: PREWITT; MAUS, P.J., and CROW
• Citation: State v. Strothers, 798 S.W.2d 723 (Mo. App. 1990)
• Decision Date: 02 October 1990
• Docket Number: Nos. 16059,16823,s. 16059
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James Henry STROTHERS, Defendant-Appellant. James Henry STROTHERS, Movant-Appellant, v. STATE of Missouri, Respondent.

Page 723

798 S.W.2d 723

STATE of Missouri, Plaintiff-Respondent, v. James Henry STROTHERS, Defendant-Appellant.

James Henry STROTHERS, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 16059, 16823.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 2, 1990.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Oct. 24, 1990.

William L. Webster, Atty. Gen., M. Melissa Manda, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Raymond L. Legg, Columbia, for movant-appellant.

PREWITT, Judge.

Following jury trial, appellant was convicted of second-degree burglary. ¹ He was sentenced as a prior offender to a term of seven years' imprisonment. After his conviction, appellant filed a Rule 29.15 motion, seeking postconviction relief. The motion was denied. Appellant's appeals from the criminal conviction and from the denial of his Rule 29.15 motion have been consolidated. Rule 29.15(l ). As we rule in appellant's favor on his point related to the criminal conviction, the appeal from the ruling on the postconviction motion becomes moot and is dismissed.

For his first point, appellant states that the trial court erred in admitting into evidence a transcript containing admissions appellant allegedly made on an audio tape and in thereafter allowing an assistant prosecuting attorney to read to the jury a portion of it. Appellant contends the admission of the transcript was error as there was no evidence to show it was accurate or that the tape was unavailable for a reason not attributable to the state.

The "best evidence rule" applies to sound recordings as well as documents and generally requires a taped confession rather than a transcription of it be admitted. State v. Snyder, 748 S.W.2d 781, 783-784 (Mo.App.1988); State v. King, 557 S.W.2d 51, 53 (Mo.App.1977). "Better described as the 'original writing rule,' the rule is limited to writings, recordings, and photographs." Graham, Evidence and Trial Advocacy: The Original Writing (Best Evidence) Rule, 26 Crim.L.Bull. 432 (1990). ²

An exception to the rule "is that secondary evidence may be admitted in lieu of the original if the original is unavailable provided that the original has not been destroyed, lost or become unavailable through the fault of the proponent and the secondary evidence does not appear to be untrustworthy." King, 557 S.W.2d at 53. Before secondary evidence is admitted, it must be shown that "(1) the original is unavailable; (2) for some reason which is not the proponent's fault, and (3) the secondary evidence is trustworthy." Id. at 54.

Gary Sitton, the police officer who questioned appellant during the recording had not been asked or subpoenaed to bring the tape to court. After the best evidence objection was made and before the transcript was admitted, his questioning ended, but he was not excused. He then investigated the existence of the tape. After another witness testified, Sitton was again questioned and stated that the tape was locked up in the Joplin Police Department's evidence room. He said the persons who had keys to the room were in Rolla to testify in a trial there. Sitton testified he had not compared the tape with the transcription and had not listened to the tape since it was made. Although he did not testify the transcript was accurate, Sitton said he had reviewed it, before testifying. Who prepared the transcript is not in the record.

The state did not meet its burden by showing any of the three elements set forth above. The tape was not sought through a subpoena duces tecum. Due diligence would require that arrangements be made for it in advance of the day of trial. Moreover, there was no evidence that the purported transcription was accurate. Absent these showings, the transcript should not have been admitted.

To be entitled to a new trial appellant had the burden of proving both error and prejudice in the reception of the transcript. See State v. Minton, 782 S.W.2d 134, 136 (Mo.App.1989). The state contends that if the transcript was inadmissible, there was no...