State v. Montgomery

845 S.W.2d 654, 1992 Mo. App. LEXIS 1948, 1992 WL 386080
Missouri Court of Appeals·Decided December 23, 1992·No. No. 17923·Published·Cited by 1 cases

Opinion

FLANIGAN, Judge.

A jury found defendant David L. Montgomery, Jr. guilty of distributing methamphetamine, and he was sentenced to a term of imprisonment of 15 years. Defendant appeals.

The information charged that on November 29, 1990, in Greene County, the defendant distributed methamphetamine “to a confidential informant of the Missouri State Highway Patrol" in violation of § 195.211, RSMo, as amended in 1989. The confidential informant did not testify at the trial, but the state’s evidence showed him to be Larry Karstens. The only trial witnesses were state’s witnesses Trooper Michael Rogers of the Missouri Highway Patrol, and Afton Ware, a chemist employed by the Missouri Highway Patrol.

On this appeal, defendant claims that the trial court erred in receiving into evidence, over his objection: (1) state’s Exhibits 4-A and 4-C; each of the challenged exhibits is a transcript of a recorded telephone conversation between Karstens and defendant; (2) state’s Exh. 1-B; a packet containing an off-white substance. Defendant does not challenge the sufficiency of the evidence to support the conviction. The evidence relevant to his two points will be reviewed.

In November 1990, Karstens sold some methamphetamine to Trooper Rogers, while the latter was working as an “undercover buy officer.” Thereafter, Karstens served as a confidential informant for the highway patrol.

On November 29,1990, at 7:25 p.m., Kar-stens, in the presence of Trooper Rogers, placed a telephone call from a pay phone in Greene County. With the permission of Karstens, Rogers used a recording device to record the conversation. Defendant was the other party to the conversation. The conversation was recorded on a microcas-sette, reproduced by Rogers on a larger cassette, and then transcribed as state’s Exhibit 4-A. Although Rogers did not hear defendant’s voice while the conversation was being recorded, Rogers later heard the defendant’s voice and identified the voice on the recording as defendant’s voice. Rogers testified that the telephone number which Karstens dialed was 863-1607.1

According to Exhibit 4-A, Karstens asked defendant what was up, and defendant said he was “waiting” and that it was “still go for tonight.” Karstens told defendant that he, Karstens, would be at Kar-stens’ home in about an hour and that he was calling from a telephone booth. Defendant told Karstens he was waiting for a call and that “it will probably be tonight.” Karstens said, “Okay, I’ll be home.”

Following that conversation, Karstens and Rogers went to Karstens’ residence, a trailer located at 1395 S. Westgate, Springfield “to await the arrival of methamphet[656] amine.” Rogers searched both Karstens and his trailer “to make sure there were no drugs present.”

At 10 p.m. defendant arrived at Kar-stens’ trailer. Rogers had concealed himself “in a cubbyhole” in the trailer. Rogers had placed a recording device in a bedroom where the drug transaction was to take place. Rogers identified defendant as the person who came to the trailer. Rogers also testified, “I overheard every word they said in the bedroom.”

In the bedroom, defendant handed Kar-stens two small baggies, each containing an off-white substance. Karstens put both of them in a dresser drawer. Karstens paid defendant $300 which Rogers had provided Karstens. Karstens and defendant agreed to meet the next day and that Kar-stens would then pay more money for the substance. Defendant then left the trailer.

One of the baggies was later identified as state’s Exhibit 1-A and the other as state’s Exhibit 1-B. At the trial, chemist Ware testified that Exhibit 1-A contained methamphetamine and that he had not conducted tests to determine the composition of the contents of Exhibit 1-B.

On November 30,1990, at 11 a.m., pursuant to prior arrangement, Rogers met Kar-stens at the trailer. Rogers provided Kar-stens with $1,100 in $100 bills. Karstens and Rogers went to a telephone booth and again a recorded conversation took place between Karstens and defendant. A transcript of that conversation was received into evidence as state’s Exhibit 4-C.

According to Exhibit 4-C, Karstens told defendant, “I’m at a pay phone. I’ve got something for you.” Defendant replied, “Why don’t you come on by because I’m here by myself.” Karstens said, “All right.”

After the second telephone conversation, Rogers searched Karstens and Karstens’ vehicle. Rogers said that Karstens “never left my sight until he got into [defendant’s] house.” Rogers followed Karstens in their respective vehicles until they reached defendant’s house. Rogers watched Kar-stens enter the house. On his body, Kar-stens wore a recording device. After Kar-stens left defendant’s house, Rogers followed him and searched him. Karstens was no longer in possession of the money.

Defendant’s first point is that the trial court erred in receiving into evidence state’s Exhibits 4-A and 4-C, the transcripts of the two telephone conversations between Karstens and defendant, over the objection of defendant, in that Trooper Rogers could hear only the words spoken by Karstens and could not hear the words spoken by the other person involved in the conversations, “and therefore could not testify as to the accuracy of the taped conversations.”

“A trial court has broad discretion in determining the admissibility of evidence, and its determination will not be disturbed on appeal absent a clear abuse of discretion.” State v. Wahby, 775 S.W.2d 147, 153 (Mo. banc 1989).

In Wahby the court said, at 153:

A proper foundation for the admission of a sound recording consists of:
(1) A showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

Defendant’s brief, after quoting the foregoing elements enumerated in Wahby, says: “Appellant submits that the essential element missing in the foundation for the admission of the transcripts of tape recordings, State’s Exhibits 4-A and 4-C, is that Trooper Rogers could not and did not hear the phone conversation on the other end of the line from Mr. Karstens.”

As the excellent brief of the state points out, a similar contention was rejected in State v. Moiser, 738 S.W.2d 549 (Mo.App.1987). There a confidential informant, one Howard, placed a telephone call in the pres[657] ence of Officer Crowley and another officer. A tape recorder was attached to the telephone. At the trial, Howard did not testify. Officer Crowley identified defendant’s voice as that which he heard on the tape recording and did so on the basis of having listened to the recording and having heard defendant speak. The trial court received the recording into evidence and defendant claimed it erred in doing so.

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State v. Montgomery, 845 S.W.2d 654, 1992 Mo. App. LEXIS 1948, 1992 WL 386080 (Mo. Ct. App. 1992).

845 S.W.2d 654 (State v. Montgomery) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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