People v. Johnson

613 P.2d 902, 44 Colo. App. 118, 1980 Colo. App. LEXIS 640
CourtColorado Court of Appeals
DecidedMarch 20, 1980
DocketNo. 78-093
StatusPublished

This text of 613 P.2d 902 (People v. Johnson) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Johnson, 613 P.2d 902, 44 Colo. App. 118, 1980 Colo. App. LEXIS 640 (Colo. Ct. App. 1980).

Opinion

RULAND, Judge.

Defendant, Joan Johnson, appeals her conviction by a jury of criminal solicitation to commit first degree murder. We affirm.

The prosecution’s evidence indicated the following series of events occurred. On May 21, 1976, while traveling through Kansas, the defendant met Sgt. Richard Jollie, a military policeman, while conversing over a “CB” radio. The two carried on a conversation with several other motorists as they traveled towards Colorado, and eventually stopped for lunch together. Later, as the group neared Denver, Jollie and another member of the group, an air policeman, accepted the defendant’s invitation to come to her home for dinner.

That evening the two guests discussed their police work with the defendant, including the use of various types of weapons. They also examined a gun belonging to the defendant. The defendant explained that she was then involved in divorce proceedings, and that she purchased the gun for protection against her husband who had recently broken into her home and assaulted her.

Jollie next heard from the defendant on June 16,1976, when she telephoned him and told him' that she continued to have problems with her husband and that she had $1,800 to pay someone to “take care” of those problems. Jollie told her not to do anything immediately, and set up an appointment to meet her at her home two days later. During that meeting, defendant told Jollie that she had considered all other alternatives and the possible ramifications of her actions, but that she was still serious about having someone kill her husband.

Jollie then arranged for the defendant to meet with Detective Ronald Butler of the Colorado Springs police department, who posed as a “hit man.” During this meeting defendant told Butler of her troubles with her husband; that she wanted him killed; and asked if $1,800 would be enough money to have it done. Butler then, acting as “a middle man,” agreed to set up another meeting with a second man.

On June 29, defendant met with Butler again, and was introduced to a second undercover agent, Detective Patrick Maes, posing as the actual “hit man.” Butler then left. After visiting in the restaurant, Maes invited defendant to accompany him to his car, which was equipped with a concealed recording device.

Once in the car, defendant provided Maes with certain information about her husband’s girlfriend and a description and license plate number of her husband’s vehicle. The parties discussed some methods for the killing as well as a time frame, and the need for defendant to have an alibi. Defendant also assured Maes that she was serious about the deal and that she realized that the act would be a “final one.” The defendant then handed Maes $1,800 in a white envelope, and was then arrested.

Defendant first contends that the trial court erred in admitting into evidence a tape recording of the conversation between defendant and Detective Maes. We disagree.

The meeting lasted 50 minutes (approximately 25 minutes in the restaurant and another 25 minutes in the car). Conversation in the restaurant was limited to small talk, and the detective advised the defendant that the business between the parties would have to be discussed in his automobile.

Our review of the tape recording reveals that the playing length is approximately 47 minutes. Of this total time, the first 25 minutes is completely blank, corresponding with the time defendant and the officer were inside the restaurant. Then, 14 minutes of generally clear, audible conversation is recorded, followed by an unexplained 4 [904]*904minutes and 45-second gap. The sound then resumes with approximately 3 more minutes of clear recording, and then ends approximately 3 minutes before defendant ' was arrested. Of the 17 minutes of recorded conversation, approximately 2 additional minutes are distorted by traffic noises, the automobile’s electric window, or by low voice response.

The defendant in effect challenges admission of the tape on two grounds, asserting that: (1) The gaps and inaudible portions of the tape render it unreliable because the jury was allowed to speculate that those parts of the tape contained evidence adverse to defendant; and, (2) statements made by the defendant which she views as exculpatory in nature were not recorded and thus she asserts that the tape presents an inaccurate record of the conversation.

As to the first contention and insofar as pertinent here, the admissibility of the tape recording depends on its audible quality. Alonzi v. People, Colo., 597 P.2d 560 (1979). However, the mere presence of inaudible segments does not render the tape unreliable unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy. Alonzi v. People, supra; People v. Quintana, 189 Colo. 330, 540 P.2d 1097 (1975). See also Annot, A.L. R.3d 746 (1974). And, the trial court must exercise its discretion in determining whether the tape should be admitted where parts of the tape are inaudible. People v. Odneal, 192 Colo. 382, 559 P.2d 230 (1977).

Here, although the tape does contain an unexplained gap and certain inaudible portions, approximately 15 minutes of the recorded portion was of good quality. There was no need for the jury to speculate because this portion of the tape contained ample evidence of defendant’s guilt. Hence, we conclude that the trial court did not abuse its discretion in ruling that the tape was sufficiently reliable to be admitted into evidence. People v. Quintana, supra.

Relative to the second challenge, the record reflects that the defenses asserted by the defendant consisted of allegations that she lacked the requisite specific intent and that she suffered from a diminished mental capacity. Defendant testified that she made certain statements to Detective Maes which were not recorded on the tape and which she views as supporting both defenses. These statements were to the effect that she had viewed a recent movie about a woman in France who had been guillotined, and she asked Maes whether he was going to guillotine her; she described a dream in which she was arrested; and, she exclaimed to Maes at the conclusion of their meeting that, “You are the police, aren’t you going to arrest me?” The People offered no evidence to rebut this testimony by the defendant.

We recognize the importance to the defendant of having her testimony corroborated. See People v. Green, 38 Colo. App. 165, 553 P.2d 839 (1976). However, relevant testimony from a witness who overhears part but not all of a conversation is admissible. People v. Adamson, 27 Cal.2d 478, 165 P.2d 3 (1946). And, the same analysis is applicable to a tape, see, e. g., People v. Cash, 28 Mich.App. 1, 184 N.W.2d 216 (1970), unless the party who recorded a conversation has attempted in some manner to delete parts as, for example, by erasing part of the recording, or selecting only parts of the conversation to record. No such contention was made in this case. Indeed, the concluding part of the conversation was not recorded simply because the tape ran out.

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Related

Alonzi v. People
597 P.2d 560 (Supreme Court of Colorado, 1979)
People v. Green
553 P.2d 839 (Colorado Court of Appeals, 1976)
People v. Quintana
540 P.2d 1097 (Supreme Court of Colorado, 1975)
People v. Adamson
165 P.2d 3 (California Supreme Court, 1946)
People v. Odneal
559 P.2d 230 (Supreme Court of Colorado, 1977)
People v. Cash
184 N.W.2d 216 (Michigan Court of Appeals, 1971)
Digiallonardo v. People
488 P.2d 1109 (Supreme Court of Colorado, 1971)

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Bluebook (online)
613 P.2d 902, 44 Colo. App. 118, 1980 Colo. App. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-coloctapp-1980.