Stromas v. State
| Decision Date | 29 April 1993 |
| Docket Number | No. 90-KA-1067,90-KA-1067 |
| Citation | 618 So.2d 116 |
| Parties | Emmett STROMAS, Sr., a/k/a Goldie, v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Jeff E. Bradley, Hattiesburg, for appellant.
Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
I. INTRODUCTION
In this case, the defendant-appellant, Emmett Stromas, Sr., a/k/a "Goldie", age 46, appeals both his conviction in the Circuit Court of Forrest County on the charge of selling a controlled substance and his sentence as a subsequent offender to serve a term of 60 years in the Mississippi Department of Corrections. Stromas asserts the following errors:
(1) The trial court erred in allowing a tape recording of the drug transaction into evidence without first requiring the State to properly authenticate it.
(2) Stromas's federal and state constitutional right to confront the witnesses against him was violated.
(3) Stromas's sentence of 60 years confinement to the Mississippi Department of Corrections violates the Eighth Amendment's Prohibition of Cruel and Unusual Punishment.
II. FACTS
On February 9, 1989, at approximately 1:00 a.m., undercover agent, Lee Holcomb, and informant, Theresa Gendron, met Emmett Stromas, Sr. in front of Stromas's apartment in Hattiesburg for the purpose of buying cocaine. Stromas entered Holcomb's car and the three of them drove to another Hattiesburg apartment complex where Stromas was to pick up the drugs. During this ride, the three's conversation regarding the price and amount of cocaine to be purchased was recorded by a Unitel recording device worn by Holcomb. Once at the complex, Holcomb gave Stromas $70.00. Stromas then exited the car and returned seven or eight minutes later with some cocaine. The three drove back to Stromas's apartment; their conversation was again recorded.
On August 10, 1989, Stromas was indicted on the charge of sale of a controlled substance, and a trial was held on July 17 and 18, 1990. At trial, the State introduced the tape recording made by Holcomb. Holcomb and other police officers testified as to the authenticity of the recording and the identification of the substance purchased as cocaine, but Theresa Gendron did not testify. The State claimed that Gendron had moved her residence and could not be located.
At the conclusion of the trial, a jury found Stromas guilty on the charge of sale of a controlled substance. Because he had previously been convicted of possession of marijuana, Stromas was indicted and adjudged to be a subsequent offender pursuant to Miss.Code Ann. Sec. 41-29-147 (1972) and sentenced to a term of 60 years confinement to the Mississippi Department of Corrections.
III. ANALYSIS
Issue A. The trial court erred in allowing the tape recording of the drug transaction into evidence without first requiring the State to properly authenticate it.
Before evidence may be admitted at trial, it must first satisfy the relevancy test of Miss.R.Evid. 401. Something is relevant if:
[it has a] tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Once the evidence is determined to be relevant, it must then be properly authenticated and identified under Miss.R.Evid. 901 1:
General Provision. The 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.
As an example of what is required for the admission of evidence such as a tape recording, Rule 901(b)(5) provides:
Voice Identification. Identification of a voice, whether heard firsthand or through mechanical of electronic transmission or recording, [may be properly authenticated] by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
Whether the evidence presented satisfies Miss.R.Evid. 401 and 901 is a matter left to the discretion of the trial judge. Miss.R.Evid. 104(a). His decision will be upheld unless it can be shown that he abused his discretion. Butler v. State, 592 So.2d 983, 986 (Miss.1991); Monk v. State, 532 So.2d at 599.
Stromas argues that the seven factor test enunciated in Monk and Sparks (see footnote 1) is applicable to this case and was not met by the State. His argument has no merit. As stated earlier, this seven factor test has been supplanted by the Rules of Evidence and is no longer applicable to the admission of tape recordings. Thus, this Court looks to Miss.R.Evid. 401 and 901 to determine if the tape recording was properly authenticated and identified by the state.
Certainly a tape recording of the alleged drug transaction is relevant. See Miss.R.Evid. 401. The tape's admission makes the drug transaction more likely to have taken place. See Butler, 592 So.2d at 984.
Once relevancy is determined, for the tape recording to be properly admitted the State must present evidence "sufficient to support a finding that the matter in question is what its proponent claims." Miss.R.Evid. 901. The State may prove that the tape recording is, in fact, a recording of Stromas, Holcomb, and Gendron by "opinion based upon hearing the voice at any time under the circumstances connecting it with the alleged speaker." Miss.R.Evid. 901(b)(5). During the drug transaction, Holcomb was wearing a recording device which transmitted the conversation to the surveiling officers, Eddie Clark and Richard Cox. During the direct testimony of Cox, the State elicited the following testimony regarding the tape recording of the transmission:
Q. When you work an undercover operation with a drug agent and an informant, are they wired?
A. The undercover agent, yes, sir.
Q. And what do you mean by being wired?
A. It is a body transmitter, a wireless body transmitter, meaning there is no cord from the body to the receiver. It's done by radio frequency. It's powered by two nine-volt batteries. It's anywhere from one and a half to one watt.
Q. Are all your agents trained on how to use that?
A. Yes, sir.
Q. And you, in fact, are trained on how to use it?
A. Yes, sir.
Q. You go through certain steps to make sure it works?
A. That's correct.
Q. Do you record what is transmitted?
A. Yes, sir, we do.
Q. How is that done?
A. It's recorded on a receiver, comes in the receiver and then goes to a recorder, which is a self-contained unit. What I mean by that is you can turn it on and turn it off. And the transmitter, once it's turned on, then it's voice activated, the recorder starts.
Q. I'll hand you an item that you just tendered to the court reported, and ask if you can identify that for me, please, sir.
A. Yes, sir, I can.
Q. What is that?
A. It is a cassette tape, which bears the markings MH890003669, 0130 hours, 2-9 of '89.
Q. What is that purported to contain in that envelope?
A. It's the cassette of the transaction made by Sergeant Holcomb.
Q. When did it come into your possession?
A. On 2-9-89, at 0130.
Q. And has it remained in your constant care, custody and control until you tendered it to the court today?
A. Yes, sir, it has.
Q. And have you had occasion to listen to that tape again?
A. Yes, sir.
Q. Is that tape accurately and correctly record what you heard being transmitted over the wire?
A. Everything, yes, sir.
Q. And has there been any gaps, additions, deletions from that tape from the time it was originally recorded until you tendered it to the court reporter?
A. No, sir.
Q. Do you know what device was used to record that tape?
A. Yes, sir, I do.
Q. What is it?
A. The cassette recorder which was connected to the receiver.
Q. And was the device used to record voices that appear on that tape competent and capable of recording voices that appear thereon?
A. Yes, sir.
Q. Were the operators that recorded those conversations competent in using the equipment?
A. Very much.
Q. And where has the tape been at all times since it was recorded?
A. In my evidence locker.
Q. Are you able to identify the voices that appear on that tape?
A. Yes, sir.
Q. Whose voices appear on that tape?
A. You will hear Sergeant Holcomb, Theresa Gendron and Emmett Stromas, alias Goldie.
Q. What, if any, offers of hope of reward, threats, or other promises were made in connection in order to record the conversations on those tapes? Any promises made?
A. No.
Q. Were any threats made?
A. No, sir.
Q. Were any inducements made?
(Emphasis added).
As stated earlier, this Court will not reverse the trial court's decision unless there is an abuse of discretion. In ruling the tape admissible, the trial court thoroughly examined the evidence and made the following statements on the record:
This Court specifically finds that [the tape] was an accurate reproduction of the conversation that took place on that particular time, that has been elicited through evidentiary testimony in regards hereto.
....
This Court specifically finds that there have been no changes made, or no deletions or additions to the recording and there has been a finding as far as the correctness of it.
The genuineness or the authenticity of the recording has been established by the State of Mississippi.
There has been no showing by the defendant that there is any possibility of any erasures or deletions whatsoever, and that being the case, that will not be before the court.
There has been a previous showing that the recorder did reproduce the actual voices of those persons who are contained in the conversation.
Since this is not in the manner of a confession, we did not go to the freeness and voluntariness of it. Also from a standpoint of admissibility the Court would cite Rules of Evidence, 901, 901(a) and 901(b)(5).
....
This Court is of the opinion that there is clear and convincing evidence to the testimony at hand that has been established by...
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