113 Wash. App. 762 | Wash. Ct. App. | 2002
— Warren Jackson appeals his conviction of assault in the first degree. He claims in part that the trial court violated the rules on authentication and hearsay by admitting a 911 tape. Disagreeing, we affirm.
Warren Jackson and Katreace Moore had a child together but were not living together. On the evening of April 8, 2000, he went to her apartment and entered her bedroom, where he found another man. According to the State’s witnesses at trial, he walked to the kitchen, grabbed a knife, and returned to the bedroom. A fight ensued, during which both men were stabbed. Jackson fled and was arrested later at a friend’s apartment.
While the fight was in progress, Moore called 911 and excitedly asked for help. As is normal, 911 recorded her call.
Jackson was tried before a jury for first degree assault and first degree burglary. During the State’s case in chief, it offered the 911 tape. To lay a “foundation,” it called Moore and asked her the following questions:
Q: You called 911?
A: Yes.
Q: Have you had an opportunity... to review the audio recording of your call to 911?
*765 A: Is that the tape? Yeah.
Q: Do you remember making the call?
A: Yes.
Q: When you reviewed the recording were there any changes or deletions or anything that was done to the tape?
A: No.
Q: Was it an accurate tape of a call that you made?
A: Yes.[1 ]
When the State offered the tape, Jackson objected on two grounds: (1) failure to authenticate and (2) hearsay not within a hearsay exception.
The jury convicted Jackson of assault but acquitted him of burglary. The court sentenced Jackson to 342 months in prison. Jackson then filed this appeal.
The only significant issue on appeal is whether the trial court erred by admitting the 911 tape. We discuss authentication first and hearsay second.
Authentication
Subject to the exceptions in ER 902 and 904, none of which apply here, ER 901 provides that the proponent of tangible evidence (e.g., a writing, recording, photograph, weapon, or other touchable object) must authenticate it. It further provides that the proponent can do that by producing “evidence sufficient to support” two basic findings.
In most circumstances, a proponent can meet these requirements in more than one way.
Just as a proponent can authenticate a photo by “eyewitness comparison,” a proponent can authenticate a tape recording by “earwitness comparison” — i.e., by calling
Though incomplete, Washington’s case law is consistent with these concepts. In the 1956 case of State v. Williams,
Next, [the defendant] claims that the tapes .. . were not properly authenticated. ... In [United States v.] Carrasco [887 F.2d 794, 803 (7th Cir. 1989)], . . . [t]he Seventh Circuit held that tapes are properly identified and authenticated when a party to the recorded conversation identifies the defendant’s voice and testifies that the tapes accurately depict the conversations. . . . We adopt the reasoning of Carrasco and apply it to this case.[15 ]
In King v. State,
Mr. King also argues that the trial court erred by admitting ... the tape-recording from the answering machine without first laying a predicate according to Voudrie v. State, 387 So. 2d 248 (Ala. Crim. App. 1980) [which set up a test very similar to that in Washington’s Williams and Smith cases].
The Voudrie seven-pronged test for admission of sound recordings was deemed no longer applicable in Jackson v. State, 594 So. 2d 1289 (Ala. Crim. App. 1991), so long as the accuracy and reliability of the sound recordings could be demonstrated by a witness. “[A] 11 that is required is to show that the recordings are ‘reliable representation [s] of the subject sound.’ ” Barnett v. State, 639 So. 2d 527, 529 (Ala. Crim. App. 1993).[17 ]
In People v. Driscoll,
Next, defendant takes issue with the admission of the tape of the November 24, 1995 conversation since the original tape was distorted and had to be enhanced by making a second tape using a variable speed control recorder. In our view, Rice’s*769 testimony that the tape was a complete and accurate reproduction of the subject conversation, augmented with proof that the enhancement did not change the tape’s content, provided the requisite foundation for its admission.[19 ]
Based on the foregoing, we hold that in proper circumstances, a proponent can authenticate a tape recording with conversation on it by calling a witness who has personal knowledge of the original conversation and the contents of the tape; who testifies that the tape accurately portrays the original conversation; and who identifies each relevant voice heard on the tape.
Hearsay
The rules on authentication and hearsay serve different though related functions. The rule on authentication, ER 901, requires indicia of reliability tending to show that the evidence is as reliable at trial as at some earlier relevant time (usually the time at which the evidence was created or discovered). The rule on hearsay, ER 801, requires indicia of reliability tending to show that the evidence was reliable at the earlier relevant time. If a proponent offers tangible evidence that incorporates an out-of-court statement, and the proponent wants to use the out-of-court statement to prove the truth of the matter asserted,
Each hearsay exception is nothing more nor less than an indicator of reliability deemed adequate to satisfy the hearsay rule. One such exception, known as the excited
In this case, the tape itself shows beyond question that Moore was excited when she called 911; she sounds frantic, and two men can be heard fighting in the background.
Affirmed.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Seinfeld and Bridgewater, JJ., concur.
Report of Proceedings (RP) at 93-94.
On appeal, Jackson also claims that the tape violated Washington’s privacy-act, chapter 9.73 RCW. That argument has no merit, so we will not discuss it further. See RCW 9.73.030(2).
ER 901(a).
ER 901(a); State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985).
ER 901(a); Campbell, 103 Wn.2d at 21.
See, e.g., ER 901(b).
E.g., State v. Tatum, 58 Wn.2d 73, 75, 360 P.2d 754 (1961); State v. Newman, 4 Wn. App. 588, 593, 484 P.2d 473, review denied, 79 Wn.2d 1004 (1971); Hansel v. Ford Motor Co., 3 Wn. App. 151, 157, 473 P.2d 219 (1970). See also 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 901.19, at 203-04 (4th ed. 1999).
United States v. Clayton, 643 F.2d 1071 (5th Cir. 1981); Tatum, 58 Wn.2d at 75; Newman, 4 Wn. App. at 593. See also Tegland, supra n.7, §§ 901.20-21, at 204-05.
Cf. ER 901(b) (stating some but not all ways in which a proponent may authenticate).
E.g., Tatum, 58 Wn.2d at 75; State v. Lyskoski, 47 Wn.2d 102, 109-10, 287 P.2d 114 (1955); see also Tegland, supra n.7, § 901.19, at 203-04.
49 Wn.2d 354, 360, 301 P.2d 769 (1956).
85 Wn.2d 840, 847, 540 P.2d 424 (1975).
Williams, 49 Wn.2d at 360 (quoting Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 88 S.E.2d 167, 171 (1955)); see also Smith, 85 Wn.2d at 847 (quoting Williams, 49 Wn.2d at 360). We have combined Williams’ fifth and sixth elements, which are different methods of showing that the tape is now in the same condition as it was earlier. We have omitted Williams’ last element — that the statements on the tape were made “freely and voluntarily,” and “without any kind of duress” — as relating to criminal procedure rather than authentication.
State v. Robinson, 38 Wn. App. 871, 886, 691 P.2d 213 (1984), review denied, 103 Wn.2d 1015 (1985); cf. State v. Mahoney, 80 Wn. App. 495, 498, 909 P.2d 949 (1996) (evidence of speaker’s identity “may be either direct or circumstantial”); ER
State v. Curtis, 218 Wis. 2d 550, 582 N.W.2d 409, 410, review dismissed, 584 N.W.2d 125 (1998).
730 So. 2d 261 (Ala. Crim. App. 1998).
251 A.D.2d 759, 675 N.Y.S.2d 151 (1998).
675 N.Y.S.2d at 153. See also Angleton v. State, 971 S.W.2d 65, 67-68 (Tex. Crim. App. 1998), and cases cited therein.
See, e.g., ER 901(b)(4), (5), (6).
ER 801(c).
ER 803(a)(2).
Because the tape is clearly an excited utterance, we need not consider whether it is also a present sense impression under ER 803(a)(1).