DocketNumber: 43852
Judges: Krivosha, Boslaugh, McCown, Brodkey, White, Hastings, Colwell
Filed Date: 7/31/1981
Status: Precedential
Modified Date: 11/12/2024
Steven M. Loveless, the defendant and appellant herein, appeals to this court from his conviction in the District Court of Washington County, Nebraska, of the crime of possession of burglary tools in violation of Neb. Rev. Stat. § 28-508 (Reissue 1979). The case was tried before a jury commencing on September 15, 1980. The
The background against which this case arises involves two incidents and trips made by the defendant Loveless and two acquaintances of his, Herschell Gitchell and Martin Kulakofsky, who allegedly drove to Blair, Nebraska, from Missouri Valley, Iowa. The first visit occurred during the evening hours of Saturday, January 12, and the early morning hours of Sunday, January 13, 1980; and the second visit occurred during the evening hours of Sunday, January 13, 1980, and the early morning hours of Monday, January 14, 1980. This appeal involves only the defendant, Steven Loveless, who was charged and convicted of the offense of possession of burglary tools, as stated above. Although, in his brief on appeal, the defendant makes four separate assignments of error, the principal contentions involved herein are that the court erred in allowing, over defendant’s objections, a certain tape recording to be played to the jury when the recording was inaudible in portions and difficult to understand, and also that the court erred in allowing a witness, Officer Warden, to testify as to his interpretation of certain portions of the tape in question. The record reveals that during the trial of the defendant, the jury was allowed to hear the aforesaid tape recording of an alleged conversation between Kulakofsky and Gitchell, which was introduced by the State apparently for the purpose of establishing the presence of Loveless in Blair, Nebraska, during the evening of January 12, 1980, and the early morning
Without setting out in detail at this point the facts leading up to the visit of the three men to Blair on the evening of January 12, 1980, it appears that at approximately 3 a.m. on the morning of January 13,1980, Kulakofsky and Gitchell were detained by members of the Blair Police Department at a location outside of Blair, Nebraska, on Highway 30. They were suspected by the police of possible criminal activity, and were placed in the back seat of a police cruiser and left alone, during which time the police conducted an on-the-site investigation. At the time Officer Warden of the Blair Police Department left Kulakofsky and Gitchell alone in the police cruiser, he had left a microcassette tape recorder operating on the front seat of the cruiser. It was this cassette which recorded the conversation between Kulakofsky and Gitchell, and which was offered and received in evidence at the trial. Later that morning, Kulakofsky and Gitchell were released by the police and left Blair to return to Iowa where they allegedly found Loveless walking on the Iowa side of the Missouri River bridge. The record further reveals that in the evening of that same day, January 13, 1980, Gitchell went to the defendant’s home in Missouri Valley, Iowa, and requested a ride to Blair for the purpose of retrieving a screwdriver and crowbar which he had abandoned in a ditch along Highway 30 at the time he was originally detained by the police. Loveless then drove Gitchell to the spot along Highway 30, and they retrieved the tools from the ditch. Gitchell placed the tools on the floorboard in front of the passenger seat in Loveless’ car and commenced to leave, but they were stopped by the Blair police and subsequently arrested for possession of burglary tools.
The testimony given by the three men at the trial was widely divergent and, in spots, very contradictory. Loveless testified at the trial that he had accompanied
Kulakofsky testified, however, that during the evening of January 12,1980, he and Gitchell had driven from Council Bluffs to Loveless’ home in Missouri Valley, Iowa, and that while at the Loveless home the three men discussed plans to go to Blair that evening and bulgarize either the Pizza Hut or a bowling alley. For the purpose of effecting an entry to the place of business, they took with them a crowbar and a screwdriver, which were later identified by a witness as falling within the category of “burglary tools.” They also took with them two walkie-talkies to use for communication purposes during the commission of the burglary. The three men drove to Blair in Gitchell’s car, and had the burglary tools and walkie-talkies with them inside the cár. According to Kulakofsky, when they arrived in Blair they drove past the bowling alley and Pizza Hut and went to the Plum Tree Lounge. The three men later left the lounge, and Kulakofsky drove the car to a dirt road and let Gitchell and Loveless out of the car with the crowbar and screwdriver and one of the walkietalkies. According to the plan formulated earlier that evening in Loveless’ home in Missouri Valley, Kulakofsky was to act a.s the “look-out” man and was to remain in the ear until the others communicated with him on the walkie-talkie with directions to pick them up. Kulakofsky testified that he became concerned when his walkie-talkie did not work, and after a period of time he began driving up and down the highway looking for his companions. He was stopped by Officer Warden and ticketed for failure to have a registration for the car. He subsequently located Gitchell who had also been stopped by the police; and, as previously stated, they were both placed in the police cruiser where
Gitchell testified at the trial that he had deposited the crowbar and screwdriver in the ditch when he saw the police; that he had intended to burglarize the Pizza Hut on either night if the conditions were favorable; and that he intended to use the crowbar and screwdriver for that purpose. Police Officer Hale of the Blair Police Department identified an exhibit as being part of a “lock-house” which he removed from the Pizza Hut door on January 14, 1980, after the defendant had been arrested. Esley Kotschwar, firearms and tool mark examiner of the Nebraska State Patrol, testified he had examined the crowbar and the lockhouse from the Pizza Hut and expressed the opinion that the crowbar admitted into evidence was used to make the tool marks on the door latch plate.
The State offered into evidence at the trial a tape recording of the conversation between Gitchell and Kulakofsky in the rear seat of the police cruiser, for the apparent purpose of rebutting defendant Loveless’ testimony that he had been walking home to Iowa at the time his companions were detained and had no intention of burglarizing businesses in Blair. The trial court held hearings on two motions to suppress the tape, which motions were overruled. At the trial the tape was admitted into evidence as exhibit 14 and played to the jury, and a transcript of the tape, prepared by Officer Warden who had listened to the tape over 50 times, was also received into evidence and submitted to the jury. Although certain portions of the tape were inaudible, as
Officer Warden testified that exhibit 15 was a transcript he made of the tape in question on January 14, and also testified: “I’ve used this type of tape recording for the past two years and I’ve transcribed a number of tapes that I’ve recorded in certain cases, including this tape here, particular tape, I’ve transcribed, written it out. I have listened to this tape probably 50 times.” The court then stated, “Well, with that basis, I’ll let you proceed and you’ll have the right to bring in anything else that you want to.”
The defendant contends on appeal that Officer Warden was not an expert in the field of making or transcribing sound recordings and, therefore, his testimony, particularly with regard to the interpretation of certain portions of the tape in question, should have been excluded. We point out, however, notwithstanding the lack of formal training in connection with the preparation and interpretation of sound recordings, that to be considered an expert it is not necessary that one have such formal training; actual practical experience in the field can also qualify one as an expert in that field. This fact is recognized by the new evidence
It is a well-established rule of law that tape recordings of relevant and material conversations are admissible as evidence of such conversations and in corroboration of oral testimony of the conversations, provided proper foundation is laid. State v. Myers, 190 Neb. 146, 206 N.W.2d 851 (1973); State v. Lynch, 196 Neb. 372, 243 N.W.2d 62 (1976). In 29 Am. Jur. 2d Evidence § 436 (1967), it is stated: “The fact that a recording may not reproduce an entire conversation, or may be indistinct or inaudible in part, has usually been held not to require its exclusion; however, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said. It has been held that unless the unintelligible portions of a tape recording are so substantial as to render the recording as a whole untrustworthy, the recording is admissible and the decision whether to admit it should be left to the sound discretion of the trial judge.” We are unable to determine from the record in this case exactly how much of the tape recording in question was inaudible, but it is clear that certain material parts were audible and were recorded by the court reporter on the playback of the tapes in the courtroom, both at the hearings on the motions to quash and during the trial itself. There is nothing in the record to indicate that the trial court in any way abused its discretion in refusing to suppress the evidence in question and in admitting the tape into evidence at the trial, particularly in view of the testimony of Officer Warden that he had had considerable experience in tape recording conversations and had, in fact, studied and replayed this particular tape at least
Defendant contends, however, that it was not proper for Warden to testify and explain his interpretation and conclusions as to certain portions of the tape in which the words were, at least to a certain extent, inaudible and unclear. There is no question, and there are a legion of cases so holding, that one who was present and who heard the conversation in question at the time the recording was made may testify for the purpose of clarifying inaudible or unintelligible portions of the tape. However, as the defendant in this case points out, Officer Warden was not present at the time the conversation between Gitchell and Kulakofsky occurred in the rear seat of the police cruiser, and hence defendant contends Warden should not be permitted to testify as to the contents of the tape recording in question. This same question was addressed in the case of United States v. Onori, 535 F.2d 938 (5th Cir. 1976). In that case the court permitted the testimony of an expert in tape identification to point out alleged errors in the government’s transcript of the conversation in question. The court also in its opinion pointed out the reasons for the necessity of the use of a transcript of a tape recording, stating: “The need or desire for transcripts arises generally from two circumstances. First, portions of a tape may be relatively inaudible. Second, without the aid of a transcript, it may be difficult to identify the speakers. In either of these cases, it has been said that it is within the discretion of the trial court to allow a •^transcript to be used by the jury ‘to assist the jury as it listens to the tape.’ . . .
“It is therefore incorrect to think of the transcripts as simply an ‘aid’ — as better lighting fixtures in the courtroom would be an ‘aid’ to the jury’s vision of witnesses — and not as evidence of any kind. They are evidence and, like other evidence, may be admitted for a limited purpose only. That purpose here, as the court outlined in its special instruction, was primarily to establish the
Since it is permissible for experts to testify with regard to the contents of sound recordings, and since we have concluded that, notwithstanding his lack of formal training in the field, Officer Warden, by virtue of his experience, was in fact an expert, we conclude that the trial court, in the exercise of its judicial discretion, did not err in admitting into evidence the tape and the transcript thereof in question, and the same was properly heard and considered by the jury in its deliberations. The weight to be given to the evidence contained in the tape recording and transcript was, we believe, properly a matter for the jury’s determination.
We have dealt at some length in this opinion with the question raised by the defendant with reference to the admissibility of the tape recording and the transcript thereof, and of the evidence of Officer Warden at the trial with reference thereto. We are convinced, however, even apart from the question of the admissibility of the tape recording in question, that there is sufficient other evidence in the record to affirm the conviction and sentence of the defendant on the charge of possession of burglar’s tools. Section 28-508 defines that crime as follows: “(1) A person commits the offense of possession of burglar’s tools if: (a) He knowingly possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking; and (b) He intends to use the explosive, tool, instrument, or article, or knows some person intends ultimately to use it, in the commission of an offense of the nature described in subdivision (l)(a) of this section.” (Emphasis supplied.) It is clear that to commit an offense under the above statute it is not required that the burglary or similar offense actually take place.
When instructing the jury in this case, the court in-
We conclude, therefore, that the judgment and sentence of the trial court were correct and must be affirmed.
Affirmed.