Butler v. United States

649 A.2d 563, 1994 D.C. App. LEXIS 201, 1994 WL 621210
Procedural entryThis page is a short order in Butler v. United States. Read the opinion of the Court — 1992 D.C. App. LEXIS 188
District of Columbia Court of Appeals·Decided November 7, 1994·No. No. 91-CF-1267·Published

Opinion

SULLIVAN, Associate Judge:

After a joint trial with co-defendant.Rodney Bush,1 appellant was convicted of robbery in violation of D.C.Code § 22-2901 (1989); first-degree burglary in violation of D.C.Code §§ 22-1801(a), -3202 (1989); first-degree theft in violation of D.C.Code §§ 22-3811, -3812(a) (1989); and destruction of property in violation of D.C.Code § 22-403 (1989).

Although appellant challenges his convictions on a number of grounds, we need only address one of the issues raised by him on appeal. Appellant argues that the trial court erred by admitting into evidence, without [565]*565proper authentication, a tape recording of an alleged conversation between appellant and Bush. We agree and, accordingly, reverse his convictions and remand the case for a new trial.

I.

On November 25,1990, Timothy Vanover’s residence was burglarized and numerous items of personal property, including a ruby ring, were stolen by two men who were subsequently identified by Vanover as appellant and Bush. According to the government’s evidence, the ransacking and robbery events consumed some twenty-five to thirty minutes in Vanover’s presence, during which the intruders talked to one another and Bush threatened Vanover’s life.

On the morning of trial, but prior to jury selection, Bush’s attorney informed the trial court that he was in possession of a tape recording which he stated Bush had made. The attorney also represented that the tape, which neither he nor the government’s attorney had heard up to that point, consisted of three telephone calls, allegedly made between appellant and Bush, which were approximately thirty minutes in duration. After the tape was played in the courtroom in the presence of appellant, Bush, and their attorneys, the trial court ruled that it did not provide a basis for severance of the trials. Bush’s counsel then stated that he wanted to introduce into evidence a portion of the tape diming which the voice identified as that of Bush read a police report form # 251 to the voice identified as that of appellant, who made potentially inculpatory statements about selling the ruby ring taken from Van-over’s residence. For purposes of this appeal, the portion of the tape recorded conversation between the voices alleged to be those of Bush and appellant is verbatim as follows:

BUSH: ah ... Edwin.
BUTLER: Yeah, I’m listening
BUSH: Oh, okay, went down to the police and got both of them jones? I wanted to see what the description said right.
BUTLER: Aha
BUSH: Okay, I’m gonna read to you what it said. Okay the description of the two uhm people is they got suspect 1: black male, thirty years old, 5 foot 5, and heavy. Everything else, they got unknown. And for suspect 2 it says a black male, thirty, 5 foot 10, weight, eyes, hair and all that is unknown. Said he had on a red cap, navy blue coat and jacket and pants unknown. Uhm ... They said in the report,’ while at home .. Uhm ... Subject 1 ... suspect 1 and suspect 2 entered his home by throwing a cinder block through the back basement glass door. Suspect 1 then placed a knife to uhm complainant l’s body and stated, ‘give me your money or I will kill you.’ Complainant 1 handed the currency to suspect 1.. Suspect 1 led complainant 1 by knife point upstairs where the above list of items were taken. Suspect 1 and suspect 2 fled the house through the rear basement door running in an unknown direction. Com-plaintant [sic] 1 recieved [sic] no injuries. A general broadcast was given at 20:15 hours.
BUTLER: They ain’t got nothing. I’m 5'8. I’m the tallest.
BUSH: Eyes- brown, ha.
BUTLER: They said husky build. Neither one of us was husky. You ain’t even husky. So I
BUSH: Not really, for real.. Uhm ... That shit in ... And they say ... what they say was taken? They say 20 dollars, % diamond ring worth 600 dollars, one % diamond ring worth 300 dollars, one ruby ring worth 4000 dollars and one gold worth
[[Image here]]
BUTLER: Woe ... wait a minute. The ruby ring was worth that much?
BUSH: Huh! That’s what it said. They say one gold band worth 350 dollars.
BUTLER: Guess how much I sold that ruby for?
BUSH: Huh?
BUTLER: Guess how much I sold that ruby for?
BUSH: How much?
BUTLER: 100 dollars
[566]*566BUSH: They got it here. They said it was nineteen ... the ruby ring was nineteen years old worth 4000 dollars.
BUTLER: 4000 dollars, Uhm.
BUSH: You got ...
BUTLER: I’m so glad I got rid of it cause I wanted it.
BUSH: Right
BUTLER: Cause I wanted ... I wanted that, man. It was ah ... It was a flawless ruby.
BUSH: Right
BUTLER: It was like a square jewel to em. The thing was flawless.
BUSH: Yeah, flawless, huh. Like it was new, huh.
BUTLER: As far as my eye can see. I ain’t no (inaudible) right. Man, you know how rubies kinda a jive burgandy [sic], right.
BUSH: ahuh
BUTLER: and in the light you know it kind of sparkles, right.
BUSH: Right. Haha ... Look kind of fake huh.
BUTLER: Yeah man especially on (inaudible).
BUSH: Right
BUTLER: I say nah. But I had to get rid of that right. That was too ... what’s the word ... Ahh
BUSH: Yeah, what’s huh. ‘Obvious’ huh. Too obvious huh.
BUTLER: Yeah

The trial court inquired why Bush wanted to introduce the tape, stating that the tape did not appear to exculpate Bush, but rather made both Bush and appellant sound guilty. Whereupon, the government’s attorney announced his desire to introduce the tape into the government’s ease-in-chief and argued that the government could authenticate the tape by virtue of the contents on the tape and also by a witness who was familiar with the voices on the tape. Over objections by appellant and Bush to the use of the tape by the government, on the grounds that the government could not authenticate the tape by clear and convincing evidence, the trial court stated that it was convinced that the tape was a conversation between appellant and Bush because of the flowing nature of the conversation and the lack of any incentive by Bush to alter the tape.

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Butler v. United States, 649 A.2d 563, 1994 D.C. App. LEXIS 201, 1994 WL 621210 (D.C. 1994).

649 A.2d 563 (Butler v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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