State v. Wheeler, 84-86-C

• Decision Date: 29 July 1985
• Docket Number: No. 84-86-C,84-86-C
• Citation: 496 A.2d 1382
• Parties: STATE v. Perry WHEELER et al. A.
• Court: Rhode Island Supreme Court

Page 1382

496 A.2d 1382

STATE v. Perry WHEELER et al.

No. 84-86-C.A.

Supreme Court of Rhode Island.

July 29, 1985.

Arlene S. Violet, Atty. Gen., Constance L. Messore, Sp. Asst. Atty. Gen., for plaintiff.

Charles J. Rogers, Jr., Providence, for Perry Wheeler.

John A. MacFadyen, 3rd, Peter A. DiBiase, Providence, for defendants.

OPINION

SHEA, Justice.

This case is before the Supreme Court on appeal by the defendants, Perry Wheeler (Wheeler) and James Allen (Allen), from their convictions in Superior Court after a jury trial. The defendants had been indicted by a grand jury on three offenses: involuntary manslaughter as a result of criminal negligence during the commission of a lawful act in violation of G.L.1956 (1981 Reenactment) § 11-23-3; conspiracy to commit involuntary manslaughter in violation of § 11-1-6; and knowingly giving a false statement with the intent to mislead in violation of § 11-18-1.

On appeal defendants urge several grounds for reversal. We need consider only two. First, defendants argue that the trial justice committed error in permitting the introduction of evidence of voice identification by means of spectrographic analysis. Second, defendants argue that the trial justice erred in denying their motions for judgments of acquittal. We reverse the convictions and remand the case to the Superior Court with direction that judgments of acquittal be entered for both defendants.

The events giving rise to this prosecution are somewhat involved, requiring a rather lengthy narration of the evidence presented at trial.

On December 2, 1980, at approximately 3 a.m., the body of Lloyd Fowler (Fowler) was found in a lot between Niantic Avenue and Dewey Street in the city of Cranston, just over the Cranston-Providence city line. The medical examiner testified that Fowler had died from aspiration of regurgitated stomach contents (inhalation of vomit), which event was secondary to acute combined-drug intoxication. Toxicological studies revealed a blood-alcohol level of .32 and the presence of oxycodone (Percodan) and diazepam (Valium). The medical examiner gave his opinion, and the state specifically argued, that Fowler did not die where his body was found. Evidence was presented indicating that Fowler's body had been dragged to the place where it was found from Niantic Avenue. The medical examiner was not able to give an opinion about the time or manner of death, whether from natural causes, homicide, suicide, or accident. There was evidence that Fowler was so debilitated from alcohol that he lacked the "gag reflex" that would have enabled him to cough and to clear his bronchial passages.

The evidence established that for the last several years of his life, Fowler had been disabled by a severe chronic back problem from which he suffered constant pain. Two surgical procedures had not resulted in any relief. Fowler took Percodan and Valium on a daily basis, both drugs having been prescribed by his physician. At times he took as many as eighteen Percodan tablets a day. He had difficulty walking and always used a cane.

Fowler also had a serious drinking problem. The day before his death he had been drinking. He had left his home on Marion Avenue in Providence in the early evening hours after dinner. Fowler's son, Steven, met his father, who was then intoxicated, sitting on the sidewalk on Broad Street in front of Burns' Donut Shop, not far from their home. Steven helped his father across the street to Doorley's Tap, a place that Fowler frequented quite regularly. This incident occurred at approximately 6:30 p.m. Fowler had several drinking companions around that day, one of whom was Bobby Herron, who lived on Verndale Avenue in Providence. At approximately 7:30 p.m. Steven returned to Doorley's Tap but found that his father was not there. Steven testified that when he had met his father earlier that evening, Fowler had mentioned killing himself and had stated his reason that his (Fowler's) mother had recently suffered a stroke. Fowler had shown Steven his bottles of pills, Percodan and Valium.

Later that evening, at 12:31 a.m., the Providence police department received a telephone call reporting a man lying on the sidewalk at Miller and Broad Streets. That man was Lloyd Fowler, although his identity was not ascertained until his body was discovered in Cranston. He was intoxicated and either unconscious or asleep.

The Providence police dispatcher contacted car No. 11, operated by defendant Wheeler. Wheeler was directed to Miller and Broad Streets. Before Wheeler arrived at the scene, two other uniformed patrolmen, Timothy O'Brien and Henry Roy, arrived there and observed Fowler lying on the grass on his back, snoring. He did not have his cane with him. At 12:36 a.m., and again at 12:40 a.m., O'Brien called for a wagon or a van and cruiser No. 1 responded, operated by defendant Allen. Wheeler arrived at the scene just before O'Brien summoned the wagon. At about 12:42 a.m. the sleeping or unconscious Fowler was placed in the wagon by Roy, Allen, and Wheeler. Both Wheeler and Allen notified the Providence dispatcher that they were on their way to St. Joseph's Hospital.

At about 12:42 a.m. Officer Searles heard Allen's announcement on the radio in his vehicle, and he also drove to the hospital. At the emergency room entrance he met Wheeler and Allen standing at the open wagon that still contained Fowler, apparently sleeping. Searles thought he recognized Fowler from a prior incident at Doorley's Tap and left to try to find out his name and address. Searles testified that although Fowler appeared to be sleeping in the wagon, at no time did Searles come closer than eight feet to the wagon.

Officer Searles called Wheeler on the car radio at 1:06 a.m. to say that he could not find out who the intoxicated man was or where he lived. Wheeler responded, "[T]hat's okay. He sobered up and we dropped him off at Verndale and Bernard [streets in Providence]." There was no record of any patient admission of Fowler at St. Joseph's Hospital, nor did personnel at the hospital recall seeing Allen, Wheeler, or Fowler that evening.

At 3:02 a.m., December 2, 1980, the Cranston police dispatcher received a telephone call. The caller, a male who did not identify himself, said that a man was seen lying down near some trailers behind Griggs and Browne, Inc., off Niantic Avenue. The Cranston police discovered Fowler's body as a result of that call.

The only direct evidence of what occurred between 1:06 a.m. and 3:02 a.m. is contained in four statements given to the Providence and Cranston police, two by Wheeler and two by Allen. These statements were introduced into evidence by the state.

In these statements Wheeler and Allen related that when they had arrived at St. Joseph's Hospital, Wheeler had obtained ammonia capsules from the emergency room and used them to arouse Fowler, who had not responded to earlier attempts to rouse him by shaking and by striking the bottoms of his feet with a nightstick. With the administration of the ammonia, Fowler became semicoherent and abusive, refused medical aid at the hospital, and yelled and used profanity. The officers then decided to take Fowler to Talbot House, an alcohol-treatment facility. Allen drove the van and Wheeler accompanied him in his own vehicle. While they were still on Broad Street, Fowler, who never did identify himself, refused to go to Talbot House or to any other treatment facility. He said he had relatives on Verndale Avenue and that he wanted to go there. Allen so informed Wheeler, and they dropped Fowler off at the intersection of Verndale Avenue and Bernard Street. Fowler was last seen staggering down Bernard Street toward the city.

The state introduced into evidence a tape recording of the telephone call to the Cranston police department in which the unidentified caller reported a man lying on the ground off Niantic Avenue. The state had caused this tape to be submitted to aural and spectrographic comparison with voice exemplars taken from both Wheeler and Allen. Testimony regarding this spectrographic comparison was admitted at trial over defendants' objections, and the state's expert testified that in his opinion the speaker was Wheeler. The tape of the call to the Cranston police and the exemplars of defendants were replayed to the jury for its own evaluation. The tape and exemplars are part of the record.

I VOICE IDENTIFICATION

The first issue we consider is one of first impression. It involves the admission by the trial justice of the evidence of voice identification by means of spectrographic analysis.

At a pretrial voir dire the trial justice heard extensive testimony by experts presented by the state. They included Dr. Oscar Tosi, a professor at the State University of Michigan at Lansing, who was described as a leading authority in this country in the field of acoustics, audiology, and voice identification, and Dr. Henry Truby, holder of a doctorate in acoustic phonetics and chairman of the board of directors of the International Association of Voice Identification, the organization that certifies qualified voice analysts.

The trial justice observed that both men, who had testified extensively in state and federal courts, were qualified experts in the complicated field of voice identification. Their names, along with the name of Lieutenant Lance Smrkovski of the Michigan State Police, another state witness, appear in most of the opinions of state and federal courts that have addressed the admissibility of evidence of voice spectrographs. Doctors Tosi and Truby endorsed the qualifications, training, and experience of Lt. Smrkovski, who had worked closely with Dr. Tosi and had published and lectured extensively in the field of voice identification. He also had testified as an expert in twenty states and in one province of Canada. Also, the state presented Dr. Dorothy Troendle, a member of the faculty at Salve Regina College, who had taught...