State v. Armstead

432 So. 2d 837
CourtSupreme Court of Louisiana
DecidedMay 23, 1983
Docket82-KA-0896
StatusPublished
Cited by55 cases

This text of 432 So. 2d 837 (State v. Armstead) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Armstead, 432 So. 2d 837 (La. 1983).

Opinion

432 So.2d 837 (1983)

STATE of Louisiana
v.
Gregory ARMSTEAD.

No. 82-KA-0896.

Supreme Court of Louisiana.

May 23, 1983.

*838 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., John Craft, Brenda Brown, Asst. Dist. Attys., for plaintiff-appellee.

Walter Sentenn, Dwight Doskey, Orleans Indigent Defendern Program, New Orleans, for defendant-appellant.

DENNIS, Justice.

The defendant, Gregory Armstead, was convicted by a six member jury of making obscene phone calls, La.R.S. 14:285, and of possessing an unregistered shotgun with a barrel of less than eighteen inches. La.R.S. 40:1781, 1785, 1791. He was sentenced to consecutive terms of two and three years. On appeal, he raises three assignments of error. We affirm his convictions and sentences.

A woman receptionist for Litton Data Systems began receiving obscene phone calls on one of the twenty phone lines in the Litton switchboard in 1981. Despite her efforts to discourage the caller, he continued for several months. The state's evidence linking the defendant to these calls consisted of the receptionist's testimony that twice the caller had identified himself as "Greg", an in-court identification of his voice by her, telephone company records which showed that several of the calls had been traced to a number assigned to defendant's mother, and telephones bearing this number, seized at the house where defendant and his mother resided.

Evidence at the trial established that, during the execution of a search warrant at the defendant's home, the police seized a *839 shotgun with a barrel of less than eighteen inches. The gun was found in a vinyl guitar case in a closet in the defendant's room.[1] The shotgun was not registered with the custodian of the Firearms Registration Files of the State Police. Possession of such a short barreled shotgun is prohibited without registration. La.R.S. 40:1781, 1785 and 1791. Several of the police officers present during the execution of the warrant testified that when the gun was brought into the room where the defendant and his mother were waiting, Mrs. Armstead said that she had not seen the gun before. The defendant answered that the gun was his and that he had bought it on the street.

The defendant rested his case without calling any witnesses and argued that the telephone tracing equipment malfunctioned, that the shotgun had a barrel of greater than eighteen inches, and that the gun did not belong to him.

ASSIGNMENT NUMBER ONE

In this assignment of error, the defendant complains of the introduction of computer printouts, which indicated that the obscene phone calls originated from his mother's telephone. He argues that the state failed to lay the proper foundation for the printouts as an admissible business record. Particularly, the defendant complains that the person who was called to introduce the record was not the person responsible for making the record.

There is no doubt that computer printouts which reflect computer stored human statements are hearsay when introduced for the truth of the matter asserted in the statements. United States v. Ruffin, 575 F.2d 346, 356 (2d Cir.1978); Comment, Guidelines for the Admissibility of Evidence Generated by Computer for Purposes of Litigation, 15 U.C. Davis L.Rev. 951, 963 (1982); Note, Appropriate Foundation Requirements for Admitting Computer Printouts Into Evidence, 1977 Wash.U.L.Q. 59, 61, 63 (1977); J. Roberts, A Practitioner's Primer on Computer-Generated Evidence, 41 U.Chi.L.Rev. 254, 272 (1973). The output represents only the by-product of a machine operation which uses for its input "statements" entered into the machine by out of court declarants.[2]

From our understanding of the record, however, we are not dealing with computer stored human statements or assertions which have been retrieved from the computer and introduced into evidence in printout form. The invention of electronic switching systems in telecommunications has eliminated the need for manual involvement in a telephone trace. Since the computer is actually responsible for making the telephone connection, the computer can be programmed to record the source of any incoming call. Thus, the printout of a telephone trace in this type of system does not represent evidence of computer stored declarations. The computer generated data by recording the source of various telephone connections as it was making them. Therefore, the evidence in this case was generated solely by the electrical and mechanical operations of the computer and telephone equipment, and was not dependent upon the *840 observations and reporting of a human declarant.

We therefore view the printout offered as evidence in this case differently from printouts of human statements fed into the computer. Since the computer was programmed to record its activities when it made the telephone connections, the printout simply represents a self-generated record of its operations, much like a seismograph can produce a record of geophysical occurrences, a flight recorder can produce a record of physical conditions onboard an aircraft, and an electron microscope can produce a micrograph, which is a photograph of things too small to be viewed by the human eye.[3]

We pretermit consideration of defendant's contention that the printout in this case was not properly qualified as a business record, since we find that such a foundation was not required. The printout of the results of the computer's internal operations is not hearsay evidence. It does not represent the output of statements placed into the computer by out of court declarants. Nor can we say that this printout itself is a "statement" constituting hearsay evidence. The underlying rationale of the hearsay rule is that such statements are made without an oath and their truth cannot be tested by cross-examination. State v. Arnold, 367 So.2d 324 (La.1979); State v. Joya, 354 So.2d 543 (La.1978); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971), appeal dismissed, cert. denied, 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38; E. Cleary, McCormick on Evidence § 245 (2d Ed.1972); 5 Wigmore on Evidence § 1361 (Chadbourn Rev.1974). Of concern is the possibility that a witness may consciously or unconsciously misrepresent what the declarant told him or that the declarant may consciously or unconsciously misrepresent a fact or occurrence. State v. Arbuthnot, 367 So.2d 296 (La.1978). With a machine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly. For this reason, apparently, most definitions of hearsay are limited to out of court statements by a person made out of court and thus not under oath, and not subject of cross-examination or confrontation. State v. Perniciaro, 374 So.2d 1244 (La.1979); State v. Martin, 356 So.2d 1370 (La.1978); State v. Arnold, supra; State v. Sheppard, 350 So.2d 615 (La.1977); State v. Launey, 335 So.2d 435 (La.1976); State v. Nix, 327 So.2d 301 (La.1976), cert. denied 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 198; See Unif.R.Ev. 62(1) & 63; F.R.Ev. (R.D. 1971) 801(a) & (c).

We therefore view the computer generated data in this case as demonstrative evidence of a scientific test or experiment.[4]*841

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Bluebook (online)
432 So. 2d 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-armstead-la-1983.