U.S. v. Williams

• Decision Date: 08 April 1983
• Docket Number: No. 82-1105,82-1105
• Citation: 704 F.2d 315
• Parties: 12 Fed. R. Evid. Serv. 1327 UNITED STATES of America, Plaintiff-Appellee, v. O'Neal WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 315

704 F.2d 315

12 Fed. R. Evid. Serv. 1327

UNITED STATES of America, Plaintiff-Appellee, v. O'Neal WILLIAMS, Defendant-Appellant.

No. 82-1105.

United States Court of Appeals Sixth Circuit.

Argued Jan. 27, 1983.

Decided April 8, 1983.

Clyde B. Pritchard, Detroit, Mich., Mark A. Goldsmith, Troy, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Ellen Dennis, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

This is a direct appeal by O'Neal Williams (Williams) from the judgment of the district court entered pursuant to a jury verdict convicting him of an attempt to possess cocaine. 21 U.S.C. Secs. 844, 846. Williams charges fifth amendment infringements against self-incrimination when compelled, during his trial, to read a neutral passage from Time magazine to the jury for the purpose of voice identification.

The Michigan State Police and the United States Drug Enforcement Agency had jointly investigated certain individuals, including Ronald Conn (Conn) and Paul Arnott (Arnott), and their involvement in the cocaine traffic and related offenses. In early April, 1982, the inquiry culminated with several arrests. On April 4, 1982, federal and state officials executed a warrant authorizing a search of the Conn residence. During the search, Sergeant Robert Bertee (Bertee) of the Michigan State Police answered the resident telephone. At trial, Bertee testified as follows:

Q. What did you say when you picked the phone up?

A. "Hello."

Q. And the party on the other line, what did that person say?

A. Said, "Hello, Paul. This is Jack."

Q. And what did you say?

A. I said, "yeah, Jack."

* * *

* * *

Q. After you said, "Yeah, Jack," what did the caller say?

A. At this point, he said, "This doesn't sound like Paul." I told him ... I told him at that time I had a cold, I just got back from Florida.

* * *

* * *

Q. What did the caller then say, after you told him you had just come back from Florida?

A. The caller asked if he could come up and pick up an ounce of snow.

* * *

* * * Q. After this caller called and indicated that he wanted to come over and pick up some snow, what did you tell him?

A. I told him to come on up.

Q. Was there anything else said by either of you?

A. No.

Approximately 15 to 45 minutes thereafter Williams entered the driveway to Conn's residence in an automobile. Sergeant Thomas Curtis (Curtis) and Drug Enforcement Agent David MacDougall (MacDougall) confronted Williams and ordered him out of the vehicle. Sergeant Curtis confiscated a weapon partially protruding from under the seat. After Williams identified himself as Jack Williams, and produced a driver's license bearing the identity O'Neal Williams, he was escorted into the Conn residence. When Agent Bertee, who had been conducting a search of an upstairs bedroom, came downstairs and heard Williams speak, he recognized Williams' voice as that of "Jack", the individual who had telephoned earlier. Bertee stated, "You are Jack", to which Williams replied, "Yeah, I'm Jack, Jack Williams." $3,400 was confiscated from the person of Williams, together with a business card. A resident telephone number scribbled on the reverse side of this business card corresponded to the telephone number adjacent to the name "Jack" written on the back of a business card which had been taken from Arnott.

At trial, Bertee described the voice on the telephone as a "distinctive ... gravelly-type voice" with a Southern drawl. After the defense had rested its case, the government moved to introduce an exemplar of Williams' voice as rebuttal evidence "for the purposes of the jury hearing his voice." Over objection, the district court granted the government's motion and compelled Williams to read from a lectern the following passage from Time magazine:

Eighty percent of U.S. Cats are common short-hairs and mixed breeds--'alley cats' of little dollar value. But the price for grand-championship quality Abssinian kittens and some others of the 33 recognized breeds in America can be as much as $3,000. Nearly 400 cat shows were held in the country this year, and some breeders believe the number may reach 450 next year.

Last season the Tony Empire Cat Show in Madison Square Garden--the 'Westminster' of catdom--had to turn away thousands of enthusiasts.

Considering the issue of an asserted fifth amendment violation, it is initially observed that fifth amendment proscriptions do not attach where the evidence is not "relat[ed] to some communicative act," Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966) (blood sample), or of "testimonial or communicative content." United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 768, 35 L.Ed.2d 67 (1973) (voice exemplar). The privilege attaches only to testimonial compulsion and not to demonstrative, "physical or real" evidence. See: South Dakota v. Neville, --- U.S. ----, ----, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983) (evidence of refusal to submit to a blood-alcohol test does not offend fifth amendment right against self-incrimination); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplar); United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980) (Congress may give Internal Revenue Service power to require taxpayers to furnish handwriting examples); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (handwriting exemplar); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910) (defendant compelled to wear particular clothing).

The Supreme Court has twice proclaimed, in a non-trial context, that the distinctive resonance, speech and voice idiosyncrasies of an individual are identifiable physical characteristics, the compelled demonstration of which infringes no interest protected by the privilege against compulsory self-incrimination. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Dionisio, 410 U.S 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). In Wade an individual was compelled, at a pretrial line-up, to state "something like 'put the money in the bag,' the words allegedly uttered by the robber." 388 U.S. at 220, 87 S.Ct. at 1929. No fifth amendment guarantee had been infringed:

[C]ompelling Wade to speak within hearing distance of the witness, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial" nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.

388 U.S. at 222-23, 87 S.Ct. at 1930. In Dionisio the Supreme Court adjudged that the compelled production of a voice exemplar as sought by a Grand Jury failed to infringe upon fifth amendment guarantees. This Circuit, as others, has not limited Dionisio to the confines of Grand Jury proceedings. In United States v. Franks, 511 F.2d 25 (6th Cir.), cert. denied, 442 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693 (1975), this Court upheld the district court's order compelling defendants to produce voice exemplars for the purpose of permitting the government to compare said exemplars through spectrographic analysis to statements which had been tape recorded theretofore by undercover agents:

We reject Mitchell's attempt to limit Dionisio to the grand jury context in that, so long as the underlying seizure of the person is proper, requiring that person to submit voice exemplars violates no constitutional right.

511 F.2d at 32. Accord: United States v. Woods, 544 F.2d 242, 263 (6th Cir.1976), cert. denied 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977), reh. denied 431 U.S. 960, 97 S.Ct. 2689, 53 L.Ed.2d 279 (1977). This Court has also affirmed a contempt order issued by a district court against a defendant who refused to produce a voice exemplar as ordered. United States v. Mitchell, 556 F.2d 371, 382 (6th Cir.), cert. denied, 434 U.S. 925, 98 S.Ct. 406, 54 L.Ed.2d 284 (1977).

The case at bar joins what appears to be an issue of first impression in the federal forum, namely, whether a defendant may be compelled to articulate in the presence of the jury to demonstrate his speech and voice characteristics for comparative purposes. ¹ Williams argues that such a mandated demonstration during trial is tantamount to an involuntary disclosure of vocal and physical demeanor patterns which could result in unfavorable jury reactions. Several psychological treatises are submitted to support this argument:

The emotional state of a speaker reading a neutral passage can be recognized from a tape recording... Thus anxious people speak fast and a breathy way, i.e., with a high frequency distribution and with speech errors. A dominant or angry person speaks loudly, slowly and with a lower frequency distribution.

Argyle, "Non-Verbal Communication in Human Social Interaction" in Hinde (ed.), Non-Verbal Communication at 251 (Cambridge Univ. Press, 1972);

[T]o appear flustered, in our society ... is considered evidence of weakness, inferiority, low status, moral guilt, and other unenviable attributes.

Goffman, Interaction Ritual, at 101-02 (Doubleday & Co. 1977);

[A]ll studies of adults thus far reported in the literature agree that emotional meanings can be communicated accurately by vocal expression.

Davitz, "A Review of Research Concerned with Facial and Vocal Expressions of Emotion," The Communication of Emotional Meaning, at 23 (Greenwood Press 1964).

Confronting the issue of "live" voice exemplars as urged by the defendant, it is initially observed that both the federal and state forums have universally adjudged that compelling a defendant to actively cooperate in non-communicative activity in the presence of the jury does not abdicate fifth amendment guarantees. In United States...