State v. Motley , 2007 Ind. App. LEXIS 232 ( 2007 )

OPINION

ROBB, Judge.

Case Summary and Issue

The State appeals after Lecoy Motley, who was charged with murder and the Class C felony of carrying a handgun without a license, was acquitted following a jury trial. The State raises the issue of whether the trial court properly ruled that recordings of Motley’s jailhouse telephone calls were inadmissible for lack of foundation. Concluding that the State provided sufficient foundation supporting admissibility of the recordings, we reverse.

Facts and Procedural History

Prior to trial, Motley’s Motion in Limine including the recorded telephone calls was granted. Nevertheless,, the State attempted to lay a foundation during trial so that the recordings could be presented to the jury. In preliminary questioning, Officer Todd Lapin, a homicide investigator with the Indianapolis Police Department, testified that he could identify Motley’s voice in the recordings. Officer Lapin testified to having two conversations with Motley: one lasting only seconds and over a cell phone, and a-conversation, in-person, which was “more than a couple sentences,” “more than a paragraph,” and that lasted several minutes. Transcript at 286.

Officer Lapin also testified to the circumstances of the conversations as well as details in the content of the conversations that led him to identify Motley’s voice. These included remarks made to Motley’s name and nickname, and references to the “actual incident.” Id. at 290. Other remarks in the phone calls were made to a witness for the State, whose voice Officer Lapin could also identify, and who told Officer Lapin that he was being warned not to appear in court to testify against Motley. However, Motley was quick to point out that the compact discs containing the recordings were labeled with Motley’s name. Having established this, Officer Lapin responded that he listened to them “thinking and believing that the person on there was Mr. Motley.” Id. at 294.

Despite testimony from Officer Lapin that he had previous conversations with Motley from which he could identify Motley’s voice on the recordings, and that the content of the conversations supported his belief that Motley made the phone calls, the trial court excluded the recordings based on insufficient foundation. The next day, the State filed a motion for the trial court to reconsider its ruling on the recordings, and the trial court denied this motion. After Motley’s acquittal, the State filed a Notice of Appeal, and the case is now properly before us.

Discussion and Decision

The State contends that it presented a sufficient foundation by identifying Motley’s voice in the recordings, and that the recordings should therefore have been admitted as evidence at trial. As a preliminary matter, we note that “[w]hen the defendant has been acquitted and the State appeals a reserved question of law, only questions of law are considered by this court. Although the issue addressed is moot, the purpose of this appeal is to provide guidance to the trial court[] in future cases.” State v. Lloyd, 800 N.E.2d 196, 198 (Ind.Ct.App.2003). As for the substance of the State’s appeal, the determination of whether to admit or exclude evidence is entrusted to the trial court and will, only be reversed for an abuse of discretion, which occurs when the trial court’s action is clearly erroneous and against the logic and effect of the facts and circumstances before it. Washington v. State, 840 N.E.2d 873, 879 (Ind.Ct.App.2006), trans. denied.

Indiana courts have long required that a caller’s identity be established as a foundation for the admission of the content of a telephone call. Ashley v. State, 493 N.E.2d 768, 774 (Ind.1986). Sufficient identification may be derived from testimony by a 'witness familiar with the caller’s voice and who recognizes it in the conversation, as well as an inference that the voice belongs to an individual based upon the circumstances and details included in the conversation. Id. “The identity of the caller need not be proved beyond a reasonable doubt. Any doubt regarding the credibility of the voice identification goes to the weight of the evidence, not its admissibility.” Id.

In Ashley, a witness testified about the content of two telephone calls he received from a person purporting to be Ashley. The witness had spoken previously with Ashley for a period of fifteen minutes, and testified that the voice on the phone “sounded the same.” Id. In addition, circumstances known only to Ashley were included in the phone conversations. Id. As a result, our supreme court upheld the admissibility of the testimony based on sufficient identification of Ashley as the caller. Id.

In a similar case, Starks v. State, 517 N.E.2d 46, 50 (Ind.1987), modified on other grounds on reh’g, 523 N.E.2d 735 (Ind.1988), our supreme court found no error where testimony of State’s witnesses concerned an alleged telephone call with Starks, in which he said to them, “If you testify against me, I will blow your head off and I will ‘ blow your wife’s head off too.” Id. Prior to the threatening statements, although the husband had spoken to Starks in person for approximately an hour, his wife had spoken only briefly with Starks in a previous phone call. Our supreme court held that the wife’s identification, based on her brief prior conversation with Starks, along with an inference that the caller was Starks arising from the circumstance and details of the call, was sufficient foundation for the admissibility of the evidence. Id.

Here, Officer Lapin testified that he had prior conversations with Motley, from which he could identify Motley’s voice in the recordings. Although one of those conversations was described in terms of seconds, the other was explained as being longer in duration. Officer Lapin also testified that the circumstances and details of the calls, such as remarks made to Motley’s name and nickname, led him to believe he was listening to Motley’s voice. As such, the State provided sufficient identification of Motley as the caller in order to establish a foundation for use of the recordings at trial. Any doubt about the identification of Motley’s voice due to the length of the previous conversations between Officer Lapin and Motley or the labeling of the compact discs with Motley’s name goes to the weight of the evidence rather than its admissibility. Therefore, the trial court’s exclusion of the recordings was against the logic and effect of the facts and circumstances before it.

Conclusion

The testimony provided by Officer Lapin regarding his familiarity with Motley’s voice prior to recognizing it in recorded telephone calls, as well as the circumstances and details of the recorded conversations, was sufficient to establish a foundation for the trial court to admit the recordings into evidence. Therefore, we reverse the trial court’s ruling excluding the recordings.

Reversed.

BARNES, J., concurs. SULLIVAN, J., dissents with separate opinion.