State v. Taylor, 85-166

• Decision Date: 25 October 1985
• Docket Number: No. 85-166,85-166
• Citation: 221 Neb. 114,375 N.W.2d 610
• Parties: STATE of Nebraska, Appellee, v. Robert J. TAYLOR, Appellant.
• Court: Nebraska Supreme Court

Page 610

375 N.W.2d 610

221 Neb. 114

STATE of Nebraska, Appellee, v. Robert J. TAYLOR, Appellant.

No. 85-166.

Supreme Court of Nebraska.

Oct. 25, 1985.

Syllabus by the Court

1. Confessions: Miranda Rights. An in-custody statement voluntarily made without the benefit of Miranda warnings is admissible if it is not the product of interrogation.

2. Trial: Tape Recordings: Evidence: Corroboration. Tape recordings of relevant and material conversations are admissible as evidence of such conversations and in corroboration of oral testimony of the conversations, provided proper foundation is laid.

3. Tape Recordings: Evidence. A recording is admissible unless the unintelligible portions of the tape recording are so substantial as to render the recording as a whole untrustworthy.

4. Corroboration. Corroboration is sufficient if the witness is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue.

5. Trial: Expert Witnesses. A general foundational objection does not reach the qualifications of an expert witness.

6. Criminal Law: Controlled Substances: Proof. A party claiming that the

sale of a controlled substance was exempt has the burden of proof that an exemption was applicable.

Charles W. Balsiger of Jewell, Gatz & Collins, Norfolk for appellant.

Robert M. Spire, Atty. Gen., and Charles E. Lowe, Lincoln, for appellee.

KRIVOSHA, C.J., and WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Upon trial to a jury the defendant, Robert J. Taylor, was found guilty of delivering marijuana, sentenced to imprisonment for 3 to 5 years, and fined $2,000. He has appealed and contends the trial court erred in (1) the admission into evidence of certain incriminating statements; (2) the admission into evidence of a tape recording of the alleged drug transaction; (3) the failure to direct a verdict for the defendant on grounds that the evidence was insufficient to support a guilty verdict; (4) the allowance of expert opinion testimony that the substance sold was marijuana; and (5) the instruction to the jury defining marijuana and the failure to instruct that the State had the burden to prove that Taylor's acts were not statutorily excepted acts.

The evidence was such that the jury could find that the defendant sold an ounce of marijuana to an undercover agent for $70 on February 24, 1984. At the time the transaction took place, the undercover agent was equipped with a radio transmitter. The conversations between the defendant and the agent were recorded by a policeman stationed near the scene.

The defendant was arrested on June 2, 1984. While being "booked" at the police station, the defendant asked a detective, Timothy Schmitz, who had "narked him off." Schmitz testified as follows concerning that conversation:

A. Robert Taylor asked me who narked him off.

Q. And what did you respond to that question?

A. I said, "Robert, you know I can't tell you that."

Q. Then what did he say?

A. He said, "Maybe I'll find out and just waste somebody."

Q. What did you say in response to that?

A. I said, "That kind of talk will just get you in more trouble than you're already in."

Q. What did he say?

A. He said, "It can't get much worse than this."

The defendant contends that it was error to receive this testimony over objection, in the absence of proof that the defendant had been advised as to his constitutional rights. Although the defendant was in custody at the time the statements were made, he was not being questioned in regard to the crime. The booking procedure involved questioning Taylor about statistical information and physical characteristics from a form sheet but did not involve questions about the facts or circumstances of the case. It was the defendant who volunteered a question about the case.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), sets the constitutional requisites for the admissibility of in-custody statements:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Miranda does not require that volunteered statements be suppressed in the absence of the warnings: "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence." 384 U.S. at 478, 86 S.Ct. at 1630. The admissibility of an accused's statement depends upon a showing that the statement was freely and voluntarily made. State v. Robertson, 219 Neb. 782, 366 N.W.2d 429 (1985); State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985).

The trial court's findings on a motion to suppress will not be disturbed on appeal unless, given the totality of the circumstances, they are clearly wrong. State v. McCarthy, 218 Neb. 246, 353 N.W.2d 14 (1984).

Taylor was not induced or coerced into making the statements. He was not interrogated about the crime as he was being booked into jail. An in-custody statement voluntarily made without the benefit of Miranda warnings is admissible if it is not the product of interrogation. State v. Parsons, 213 Neb. 349, 328 N.W.2d 795 (1983). Detective Schmitz did not question Taylor about the crime either directly or indirectly in a manner reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). "[I]nterrogation occurs when the subject is placed under a compulsion to speak," and does not occur when a statement is made in response to a " 'neutral,' 'spontaneous' question, not designed to elicit a confession." State v. Lamb, 213 Neb. 498, 502, 330 N.W.2d 462, 466 (1983). The trial court did not err in admitting the statements into evidence.

Taylor's second assignment of error involves the admission of the recording of the conversation during the drug delivery. Taylor complains that the tape recording should have been excluded due to insufficient foundation and the fact that substantial portions of the tape were inaudible.

We have held that "tape recordings of relevant and material conversations are admissible as evidence of such conversations and in corroboration of oral testimony of the conversations, provided proper foundation is laid." State v. Loveless, 209 Neb. 583, 589, 308 N.W.2d 842, 846 (1981).

At trial defense counsel objected on grounds that the tape was not shown to be valid or authentic and that the speakers on the tape were not properly identified. The undercover agent testified that the defendant was the person from whom he had purchased the marijuana and that the defendant was the only male spoken to during the course of the transaction. The jury heard the agent testify and also make the introduction to the tape. This would enable the jury to discern between the two male voices on the tape. The defendant's mother's voice was identifiable because of the conversation about hair dyeing. Other voices on the tape were merely incidental and did not relate to the drug transaction.

The trial court properly admitted the tape despite its less than perfect quality. Partial inaudibility or indistinctness does not require exclusion of a sound recording unless those portions are " 'so inaudible and indistinct that the jury must speculate as to what was said....' " State v. Loveless, supra at 589, 308 N.W.2d at 846. Even then, exclusion is discretionary " 'unless the unintelligible portions of a tape recording are so substantial as to render the recording as a whole untrustworthy....' " Id.

In Loveless, supra at 589, 308 N.W.2d at 846-47, the admission of a partially inaudible tape was upheld where "certain material parts were audible and were recorded by the court reporter on the playback of the tapes in the courtroom...." In the present case the court reporter was able to record a substantial portion of the tape as it was played in court. Several of the statements recorded were material and corroborative in light of testimony by the cooperating individual. For example, there were statements corroborative of testimony that the defendant had only a half ounce of marijuana for sale but that he would attempt to get the other half at a place called "Papa Red's." It also contained statements corroborative of testimony that the cooperating individual purchased the first half ounce for $35, by giving Taylor $40 with $5 change back, and that Taylor was given $35 prior to leaving the house to pick up another half ounce of marijuana. Similarly, the tape corroborates testimony that the two half ounces purchased from Taylor were combined upon his arrival back at the house. In view of the support which the recording gave to the agent's testimony, it cannot be said that the tape was so untrustworthy as to require exclusion. See United States v. Jones, 540 F.2d 465 (10th Cir.1976), cert. denied 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977). The trial court did not abuse its discretion in admitting the tape.

The defendant challenges the sufficiency of the evidence, claiming that, without the tape recording, there is only the uncorroborated testimony of the cooperating individual to prove the delivery of a controlled substance. Neb.Rev.Stat. § 28-1439.01 (Cum.Supp.1984) provides that "[n]o conviction for an offense punishable under sections 28-401 to 28-438 shall be based solely upon the uncorroborated testimony of a cooperating individual."

Taylor was convicted under Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1979) for knowingly or intentionally delivering the controlled substance of marijuana. In addition to the undercover agent's testimony, a State Patrol investigator testified that before the...