Brown v. State

903 S.W.2d 160, 321 Ark. 413, 1995 Ark. LEXIS 484

Opinions

Tom Glaze, Justice.

On February 2, 1994, the Arkansas State Police, Osceola Police Department and Blytheville Police Department worked together with confidential informant Barbara Williams to make a cocaine buy. On that night, between 6:00 and 6:30 p.m., State Trooper Dwight Lee accompanied Williams, who was wired with a body mike, as she drove her vehicle to 122 E. Seemes in Osceola. Williams pulled up to the front of the residence, exited the vehicle and knocked on the door. Williams and Trooper Lee later described the person who answered the door to be a black female, approximately five feet, one inch, 195 pounds, and known as the appellant Elizabeth Brown. Williams entered the house, but left the door open. The porch light was on and Trooper Lee, sitting in the vehicle only ten to fifteen feet away, witnessed the two women talking. Lee saw an exchange take place whereby Williams gave money to Brown, and Brown gave something in return. Williams then walked directly back to Trooper Lee and gave him two rocks of crack cocaine. Williams had known Brown prior to this drug transaction and later described Brown as the one who sold her the cocaine. In describing the sale, Williams testified, “I don’t think the door was open where Officer Lee could see this. I can’t say.” In this one respect, Williams’s version differed from Trooper Lee’s, who said he had seen the sale.

The state later charged Brown with having unlawfully delivered cocaine in exchange for $60.00. Brown was also charged with being a habitual offender.

At trial, the state presented Williams’s and Trooper Lee’s testimonies, supporting their respective views of Brown’s sale and delivery of cocaine to Williams. In addition, Officer Mike Marshall was allowed, over Brown’s objections, to testify that he had recorded the February 2, 1994 sale as it was broadcast over Williams’s body microphone. Marshall also related that he had known Brown for five years and was able to identify her voice. Brown objected, arguing that the tape was unintelligible and that Marshall was not qualified to identify Brown’s voice patterns.

Brown then presented her case-in-chief and her entire defense was one of alibi. She and other witnesses testified that she was working at a cafe at the time the state alleged she sold the cocaine to Williams. At the end of her case, Brown offered instructions AMCI 2d 301 and 302 on the lesser included offense of possession of cocaine, and the trial judge denied them. The jury subsequently returned a verdict of guilty and sentenced Brown as a habitual offender to fifty years imprisonment. On appeal, Brown contends the trial court erred in denying her lesser-included instructions and allowing Officer Marshall’s testimony. We affirm.

In her first argument, Brown cites Whitner v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), for the proposition that the offense of delivery of a controlled substance includes the lesser-included offense of possession and that being so, a simple possession instruction should have been given the jury. While she recognizes that Whitner and other precedent permit a trial court to reject such lesser-included instructions where no rational basis is presented, Brown argues a rational basis existed here. In sum, Brown says that a glaring conflict exists between Williams’ and Trooper Lee’s testimonies bearing on whether Lee actually saw the drug sale — Lee said he saw it and Williams testified no one else could have seen it. Brown concludes that, without the lesser-included instructions, the jury was prevented the opportunity to believe that there was no transfer of money or anything of value as required by the charge of delivery of a controlled substance.

Brown’s argument ignores the fact that all of the state’s witnesses placed Brown at the crime scene on February 2, 1994, although Williams gave testimony that, in her view of what happened, no one else could have seen the drug sale except her. Regardless of Williams’s statement in this respect, we conclude that, under any objective review of the state’s case, Brown was clearly described as the person making the drug sale on February 2. Even more significant, Brown’s entire defense was based upon alibi and her contention that she was innocent of selling cocaine to Williams because she was elsewhere at the time of the crime and could not have been the woman Williams claimed sold her the cocaine.

The case of Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984), is an alibi case which supports the trial judge’s ruling here. In Roberts, the defendant was charged with theft, but he asked for the lesser-included offense of theft by receiving. This court held that Roberts’ instruction request was inconsistent with his own proof and that, because his alibi witnesses were offered to establish he had committed no theft, his request for the lesser-included offense of theft by receiving was not rational. Here, likewise, because Brown’s proof established she was elsewhere and innocent of participating in the cocaine transaction with Williams, it defies common sense to give the jury the possession of cocaine instruction she requested. In other words, if Brown was not present when the drug sale occurred, she logically could not be present and participate in a lesser offense. Such a proffered instruction could do nothing but confuse a jury. Thus, we hold the trial court was correct in refusing it.

In sustaining the trial court’s ruling, we continue to hold that it is not error for the court to refuse or fail to instruct on the lower offense, where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Over the past century, Arkansas cases have wisely and consistently applied this legal principle. See Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986); Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984); Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982); Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1982); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977); Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975); Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972); Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925); Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918); Crenshaw v. State, 271 Ark. 484, 609 S.W.2d 120 (Ark. App. 1980). While dissenting opinions in Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), and now this case suggest this rule of law be overruled, we simply fail to find good reason to do so. Even in cases where arguments are closely balanced — which is not conceded here — this court has held that the advantage of certainty in the law should tip the scales in favor of the rule of stare decisis. Comer v. State, 222 Ark. 156, 257 S.W.2d 564 (1953). Sound reason undergirds the established legal principle in issue here, and stare decisis dictates our continued application of it.¹

We next turn to Brown’s second argument that the trial court erred in admitting Officer Marshall’s testimony identifying her voice as the one heard and recorded at the time of the drug sale. She also claims the tape was inadmissible because it was substantially inaudible. The trial court admitted the recording only for the purpose of refuting her alibi. Brown does not challenge the tape’s authenticity.

Rule 901 of the Arkansas Rules of Evidence sets out the foundation that must be laid prior to voice identification testimony and provides as follows:

Requirement of authentication or identification.

(a) 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.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

* * ‡

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

In Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981), we reversed the conviction because there was insufficient foundation for a witness to testify concerning the identity of Roleson’s voice during a telephone conversation. The witness opined that the caller was Roleson although he had not met or talked with him and did not know what his voice sounded like. Under those circumstances, the witness was not qualified to offer an opinion concerning the identity of the voice on the telephone. The evidence here contrasts significantly, given Officer Marshall’s asserted familiarity with Ms. Brown’s voice.

The trial court found that the inaudible and unintelligible portions of the recording affected the weight of the evidence rather than admissibility in view of the limitation of its admission of voice identification. Indeed, the jury had an opportunity to listen to the tape, and they were in a position to assess Officer Marshall’s ability to identify the voice.

As to the general matter of audibility, we have held that tape recordings are admissible “unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy.” Loy v. State, 310 Ark. 33, 832 S.W.2d 499 (1992); Ham v. State, 301 Ark. 154, 782 S.W.2d 577 (1990). We will not, however, reverse a decision to admit a recording absent an abuse of discretion. Id.

The trial court admitted the recording for the purpose of identifying Ms. Brown’s voice, and not for content. That the jury might not have been able to discern what was being said was of little consequence. We cannot say the trial court abused its discretion in allowing the admission of the recording.

Affirmed.

Dudley, J., concurs; Newbern, Brown and Roaf, JJ., dissent.

Footnotes

1

A dissenting opinion refers to State v. Jones, CR94-717, and suggests that case is inconsistent with the holding here. Jones is clearly different, since there, Jones never denied shooting the victim. Here, on the other hand, Brown defended, stating she not only did not commit the crime, but she was elsewhere when the offense was committed.