Reed v. State

Gilbert, C. J., delivered the opinion of the Court. The concept of spectrography had its genesis in World War II. At that time, the Allied Intelligence Service ideated that if the specific identity of German radio operators could be ascertained the Allies would be able to follow the movement of enemy forces in Europe. Bell Telephone Laboratories was requested to, and did, develop the spectrograph for the purpose of identifying speakers. ⁴⁷⁴ According to Dr. Oscar Tosi, 1 spectrography “consists of comparing both aurally and visually spectrograms of a questioned voice and a known voice, and on the basis of similarities to decide whether or not the two voices, the questioned and the known voice, are the same or belong to different persons.” 2 Spectrography, a relative newcomer to the law. of evidence, compared with fingerprints and ballistics, has been admitted in some courts 3 but rejected in others. 4 Those ⁴⁷⁵ jurisdictions which permit the introduction of spectrography do so on the ground that its reliability has been demonstrated and that the expert through whom the evidence is offered is properly qualified to give an opinion on the subject.

People v. Kelly, supra, 130 Cal. Rptr. at 148. The generally recognized test applied to new scientific techniques was articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). There, Justice Van Orsdel stated for the Court: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.

Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” [ 5 ] 293 F. at 1014 . After hearing “Everything you always wanted to know about spectrographs but were afraid to ask,” 6 Judge John F. McAuliffc, in the Circuit Court for Montgomery County, admitted into evidence for the first time in Maryland, spectrography analysis, also known as “voice print,” in the trial of James Reed, Jr., appellant, for rape, perverted practice, robbery, verbal threat and unlawful usé of a telephone. On appeal to this Court, appellant assigns six reasons, in question form, as to why the judgments of the circuit court should be reversed. We shall discuss each of the issues in the ⁴⁷⁶ order that they have been posed to us.

Antecedent to our discussion, however, we briefly recount the bizarre circumstances from which this case arose. In the early morning' hours of September 15, 1974, the prosecutrix arrived at her home, parked her car in the driveway, and began walking towards her front door. At that time, she was approached by a man who indicated that he had either a gun or a knife. This man ordered her to go with him to a wooded area behind her house.

There he made her disrobe. He removed his penis from his trousers. He commanded her to commit fellatio on him, and then he had sexual intercourse with her. At approximately 12:30 p.m. of the same day, the victim, whose purse was taken by her assailant, received a telephone call from a person who identified himself as the man who had raped her hours earlier.

The prosecutrix notified the police. Corporal Thomas Evans, a detective with the Montgomery County Police Department, affixed, by suction cup, a cassette tape recorder to the prosecutrix’s telephone. The recorder and the tapes belonged to the Montgomery County Police Department. Another detective instructed the prosecutrix on how to use the machine.

The rape victim received and recorded telephone conversations on September 15, 17, and 18 (one call was actually recorded by the victim’s daughter). There were eight (8) conversations in all, including the original call. After each recordation, the prosecutrix telephoned Corporal Evans. He, in turn, would arrange for someone from the police department to pick up the used tape and replace it with another one.

Corporal Evans kept the used tapes locked in his desk drawer. After the Corporal made a master composite tape of all the recorded conversations, he returned the individual tapes to the police department secretarial pool for dictation use. ■ During the course of a telephone conversation in which the prosecutrix’s caller asked to have intercourse with her again, she offered to pay him $1,000 in lieu of intercourse “[e]ven though there’s no guarantee that I [the caller] won’t bother you. . . . The only thing you have is my word.” In a ⁴⁷⁷ subsequent conversation, the prosecutrix and her caller arranged for the prosecutrix to deliver $1,000 in a white envelope to the locker room of the Greyhound Bus Station in the District of Columbia. She was to find the key of locker number 326 on top of an electrical “plug” box, open the locker and place the envelope therein, and return the key to its original location on the box.

The prosecutrix then complied with her caller’s instructions. Thereafter, the appellant appeared at the bus station, entered the locker room, picked up the key from the box and proceeded to locker 326. As he approached the locker, Sergeant Lanigan of the District of Columbia Police Department, who had been watching the locker room from a hole drilled in the door between the locker and boiler rooms, emerged from the boiler room. After a brief struggle with appellant, Sergeant Lanigan placed him under arrest.

The appellant was then placed in a lineup at the Montgomery County Detention Center. The prosecutrix was unable visually to recognize anyone, but after hearing the participants in the lineup speak, she identified with 85-90% certainty the appellant as being the person who raped and called her. Eventually the master tape was sent to the Michigan State Police where Sergeant Lonnie Smrkovski 7 compared by spectrograph the master tape with voice exemplars made by appellant. Sergeant Smrkovski formed the opinion and was allowed to testify at trial that the voice on the master tape and that in the exemplars was one and the same. 8 ⁴⁷⁸ I. “Did the trial court err in permitting, for the first time in the State of Maryland, the process of voice ⁴⁷⁹ identification through spectrographic analysis, introduced through a police sergeant, to be used as substantive proof?” To determine the admissibility of the spectrograhic evidence at trial, a pretrial suppression hearing was conducted.

Appellant, through his counsel, vigorously sought to discredit voice identification. Appellant zeroed in on the “error” factor that is present in an effort to succeed in having the trial judge reject testimony concerning spectrographic analysis as unreliable. Doctor Tosi conceded an error rate of roughly 2% in identification through voice print but pointed out that the 2% error rate is in elimination, not identification. In Tosi’s view, a guilty person may be excluded, but an innocent person will not be included.

There was expert testimony that the error rate could be considerably higher. Dr. Donald J. Baker, Associate Professor of Hearing and Speech in the Division of Behavioral Social Sciences at the University of Maryland, testified that based upon his readings on the subject of spectrography he thought the error rate for false identification could be as high as 16 %. 9 One of the problems surrounding spectrographic analysis in general and the spectrograph in particular had its origin with the inventor, Lawrence Kersta, who was with Bell Laboratories, and who announced that voice prints had the infallibility of fingerprints. 10 That statement, seemingly equating his invention to Newton’s Law of Gravity, was a “red flag” for the scientific community. It created an aura of dubiety that still clings tenaciously to the subject of spectrography. Although great strides have been made since Kersta’s comment, there are still many disbelievers.

What has been proven and is acceptable scientifically is usually legally admissible evidence, but what is legally ⁴⁸⁰ admissible is not necessarily scientifically accepted. Scientists deal in exactitudes, the law in reasonable probabilities. As Judge McAuliffe opined at the pretrial hearing, “If we did not decide cases except where things were absolutely and mathematically certain, we would not ever decide cases. Even in a criminal case proof beyond a reasonable doubt does not require mathematical certainty.” 11 Were the courts to- rely upon “absolute certainty” in order for forensic evidence to be admissible, many of those area's of scientific expertise commonly received into evidence would of necessity be rejected.

By way of example, speed, 12 handwriting, 13 ballistics, 14 neutron activation test, 15 seminal stain test, 16 blood tests, 17 analysis of hair and soot, 18 and fibers, 19 are all “. . . known to be incapable of resulting in positive identification . . .”, People v. Rogers, supra, 385 N.Y.S.2d at 234, yet the acceptance of such evidence is widely upheld. In the cases that refuse to permit the introduction of voice prints, supra note 4, the common thread permeating them is that 'the science of spectrography has not reached the point where it passes muster under the Frye test. In United States v. Addision, supra, the United States Court of Appeals for ⁴⁸¹ the District of Columbia, through a three judge panel, held in 1974 that voice prints were “. . . not now sufficiently accepted by the scientific community as a whole to form a basis for a jury’s determination of guilt or innocence.” 498 F. 2d at 745. Nevertheless, the Court affirmed the judgment on the ground that the error in admitting the evidence was harmless in view of the overwhelming record of guilt.

Addison’s application of Frye to the spectrographic analysis, has been questioned by a different panel of judges of the same court in United States v. McDaniel, supra, decided in 1976. 538 F. 2d at 413. McDaniel did, however, apply Addison, and held the voice print testimony to be inadmissible, while arriving at the same ultimate conclusion as Addison, that the error in permitting the introduction of spectrographic analysis was, in the circumstances of the case, harmless. The Superior Court of New Jersey, Law Division, also declined, in 1968, to allow evidence concerning spectrograms in State v. Cary, supra. That holding was affirmed in 1970, by that State’s Supreme Court, State v. Cary, supra.

Two years later, however, the latter court ordered voice exemplars made of two defendants charged with extortion. In so doing, the court said that because of “... developments since Cary, we believe that it is no longer unreasonable to order these defendants to speak for purposes of this test.” State v. Andretta, supra at 648. Thus, the support provided appellant in the instant case by Addison and Cary is somewhat eroded. The California Court of Appeals split into two factions, those that deem voice prints acceptable and those that do not. 20 The conflict was resolved in 1976 by the California Supreme Court in People v. Kelly, supra.

That court spurned spectrograms on the ground that they had not yet reached ⁴⁸² the “. . . degree of general scientific acceptance as a reliable identification device. . . .” 130 Cal. Rptr. at 146. Until the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Topa, supra, California was the only jurisdiction, that disallowed spectrograms without a latter day question being raised by the same court as to tire wisdom of its holding. Pennsylvania’s rejection of spectrographic evidence in Commonwealth v. Topa, supra, centered on the fact that only one expert’s testimony, that of Lieutenant Ernest W. Nash, was available for the court’s assessment of the spectrogfaph’s validity.

The court held that Lieutenant Nash’s “. .'. opinion, alone, will not suffice to permit the introduction of such scientific evidence into a court of law.” Pa., 369 A. 2d 1277 at 1281 . We observe that the testimony of numerous expert witnesses was available in the instant case, and that, therefore, Topa is inapposite. We live in a society that wants guaranteed answers to its questions, and we want them now. 21 The difficulty is in finding absolute answers. The law compensates for the lack of positive answers by substituting, in criminal cases, proof beyond a reasonable doubt. 22 That expression, of course, does not mean proof to a mathematical certainty.

We accept without question such a standard and subject a person to monetary loss, imprisonment, or even death; yet, in the field of scientific endeavor, we insist upon some higher standard before we admit such endeavor into evidence. Patently, there is something inconsistent in our approach. We have no hesitancy in allowing a witness to testify that he recognized the voice of a defendant over the telephone, because he was familiar with that voice, even though the witness would be unable to state that the caller was not an impersonator. At the same time, a spectrographic expert, ⁴⁸³ after analysis of defendant’s voice and that of the caller, could reach a more definite result and eliminate to a degree the possibility of an impersonator.

An examination of the cases cited in note 3 will reveal that spectrographic analysis evidence is sanctioned in five States, namely, Florida, Massachusetts, Minnesota, New York, and Ohio, two federal circuits, the 4th and 6th, and by the United States District Court for the Eastern District of Pennsylvania. We believe, in the light of the decisions from those jurisdictions, that the Frye test has been met, and we hold that spectrographic analysis evidence, under proper safeguards, is admissible in Maryland. In so holding, we reject the Addison rationale and that of Kelly. We think that spectrograms have now, in the words of Frye , “. . . gained general acceptance in the particular field in which it belongs.” In our view, it is better to permit the introduction of relevant scientific evidence and allow the fact finder to assess its weight after cross examination and refutation, unless there is a widely accepted exaggerated popular opinion of the accuracy of a particular technique which causes its use to be misleading or prejudicial.

United States v. Bailer, supra, 519 F. 2d at 466; United States v. Stifel, 433 F. 2d 431 (6th Cir. 1970). See also McCormick, Evidence § 203 at 490-91 (2d ed. 1972). We have indicated that proper safeguards should surround the admission of spectrographic analysis testimony. By that we mean the trial judge must, through carefully worded instructions, see that the jury does not give undue weight to spectrograms because of their relative newness in the evidentiary area, and the jury must be apprised that it may accept or reject the expert's opinion or assign to it whatever weight it believes is merited.

People v. Rogers, supra. We share the belief of the Fourth Circuit, “. . . that it is better to avoid using ‘voiceprint’ in favor of a more neutral term such as ‘spectrogram,’ whenever possible.” United States v. Baller, supra, 519 F. 2d at 465, n. 1. ⁴⁸⁴ II. “Was the best evidence rule violated when the trial court permitted either a second or third-hand copy of a criminal voice tape to be used for comparison purposes when the original tape was destroyed by the gross negligence of the investigating police officers, and the second copy lost or destroyed without explanation?” After keeping for a prolonged period of time the original cassette tapes upon which the conversations between the prosecutrix and her assailant were recorded, Detective Evans re-recorded the contents of the cassettes onto a master tape. The original cassettes were then returned to the department stenographic pool from which they had been on loan. Although a search was made for the originals, they were not found.

At trial, the State offered the “master tape” which the trial judge received into evidence over the objection of the appellant that the admission of the “master tape” was a clear violation of the best evidence rule. To underpin his argument that the trial court erred in permitting the introduction of the secondary evidence, i.e., the master tape, the appellant cites Wharton’s Criminal Evidence (12th ed. 1955) and Corens v. State, 185 Md. 561 , 45 A. 2d 340 (1946). Section 592 of 2 Wharton’s Criminal Evidence (12th ed. 1955) states in pertinent part: “When the best evidence rule is applicable, primary evidence must be presented if available. If this is not available, secondary evidence may be admitted if the absence of the primary evidence was not due to the fault or negligence of the party offering the secondary evidence.” (Footnotes omitted.) The same author, in section 593, declares: “Secondary evidence is admissible to prove the contents of documents that have been lost or destroyed without the fault of the party tendering ⁴⁸⁵ proof of same, it first having been made to appear to the court that such documents existed, and that efforts have been made, in good faith, to produce them in court.” (Footnotes omitted)! 23 !

The Court of Appeals, in Corens v. State, supra, said, “When production of the best evidence is shown to be beyond the power of a party not at fault, the rule is satisfied with the best then obtainable. Secondary evidence is admissible to prove records that have been lost or destroyed without the fault of the party tendering proof of the same after it has been made to appear to the court that efforts have been made in good faith to produce them.” 185 Md. at 569 , 45 A. 2d at 346 . In Forrester v. State, 224 Md. 337 , 167 A. 2d 878 (1961), the Court approved the trial judge’s refusal to allow Forrester to relate alleged conversations which he had heard from a taped wiretap conversation between two other individuals. Noting that “. . . no effort was made to produce the original tape, nor any explanation offered for its nonproduction,” the Court said: “The best evidence of which the case is capable must be produced, and secondary, or inferior, evidence is only admissible after a proper foundation has been laid, showing good and sufficient reasons for the failure to produce the primary evidence.

Corens v. State, 185 Md. 561, 569 , 45 A. 2d 340 ; Gray v. State, 181 Md. 439, 443 , 30 A. 2d 744 ; Barranco v. Kostens, 189 Md. 94, 97 , 54 A. 2d 326 . 4 Wigmore, Evidence (3rd Ed.), Section 1182.” 224 Md. at 349 , 167 A. 2d at 884 . The appellant reasons, based on the quoted sections of Wharton’s, Corens and Forrester , that because Detective ⁴⁸⁶ Evans re-recorded onto the “master tape” from which he also made other tapes, and sent the original cassettes back to the stenographic pool where they have been either erased or lost, that the fault lies with the State. Appellant then concludes that the secondary evidence is thus rendered inadmissible. To reach that conclusion, however, we would have to interpret the word “fault” to mean a multitude of things, including carelessness, negligence, wantonness and perhaps stupidity.

It is apparent to us that neither Wharton nor the Court of Appeals meant “fault” to have such an all inclusive meaning. Judge Thompson, for this Court in Anderson v. State, 9 Md. App. 532, 539 , 267 A. 2d 296, 300-301 , cert. denied, 259 Md. 729 (1970), explained that: “[I]n one sense any document [or tape] in possession of state officials cannot be lost without at least some minor fault by some official or employee of the State; but we think the rule is more fully stated in 1 Jones, Evidence, § 238: ‘If the loss or destruction of the instrument is shown to have been intentional, and for the purpose of making it unavailable at the trial secondary evidence would be inadmissible” citing 4 Wigmore, Evidence, § 1198 (3d Edition) which gives a full discussion of the problem.” (Emphasis supplied.) Under Anderson , secondary evidence is admissible unless the primary or best evidence was destroyed or lost 1) intentionally and 2) for the purpose of making it unavailable at trial. While it cannot seriously be contended, in the instant case, that the original tapes were not intentionally lost or destroyed, there is no evidence that such was done for the purpose of making them unavailable at trial. We think Anderson to be dispositive of the appellant’s contention and that Judge McAuliffe properly admitted the secondary evidence. ⁴⁸⁷ III. “Did the trial court err in admitting a copied recording of a telephone conversation as said telephonic interception was not pursuant to a court order and was otherwise illegal?” The record is not clear whether a suction cup device recorder was placed on the telephone of the prosecutrix at her suggestion or that of Detective Evans, but, in any event, there was no prior court order authorizing the intercept.

Title 18 U.S.C. § 2511 (2) (c), permits an intercept of a wire or oral communication when the interceptor is one of the parties to the communication or one of the parties has given prior consent to the interception. It is obvious that the prosecutrix was either the interceptor or had given her prior consent to the interception. In fact, she operated the recorder whenever she received a telephone call from the rapist, so that the interception clearly falls within the exception spelled out in Title 18 U.S.C. § 2511 (2) (c). Appellant recognizes the existence of the exception and its validity in this case, but urges that Md. Ann. Code art. 27, § 125A proscribes such interception irrespective of the Title 18 provision. 24 Md. Ann. Code art. 27, § 125A provides in pertinent part: “(a) Use without knowledge or consent prohibited. — It is unlawful for any person in this State to use any electronic device or other device or equipment of any type whatsoever in such manner as to overhear or record any part of the conversation or words spoken to or by any person in private conversation without the knowledge or consent, expressed or implied, of that other person.

(b) Prevention of crime or apprehension of criminal — Petition for ex parte order authorizing ⁴⁸⁸ use. — However, if ii shall appear to a duly authorized public law enforcement officer of this State that a crime has been, or is being, or is about to be committed, and that the use of such electronic devices are required to prevent the commission of the said crime, or to apprehend the persons who shall have committed it, then the law enforcement officer or officers shall submit to the State’s attorney of the county or of Baltimore City the evidence upon which the said law enforcement officer bases his contention that an ex parte order authorizing the use of the said electronic devices is necessary; and if it shall appear to the said State’s attorney that there are reasonable grounds to believe that a crime has been committed or is being committed or may be committed then the said State’s attorney shall apply to any of the judges of the circuit court of the county or of the Supreme Bench of Baltimore City .... any such ex parte order shall be issued. . . .” The question posited by appellant was answered by this Court, speaking through then Chief Judge Orth in Pennington v. State, 19 Md. App. 253 , 310 A. 2d 817 (1973), cert. denied, 271 Md. 742 , cert. denied, 419 U. S. 1019 , 95 S. Ct. 492 , 42 L.Ed.2d 292 (1974). In Pennington , we noted that although Md. Ann. Code art. 27, § 125B makes it a misdemeanor to overhear or record, by electronic device, any conversation without the consent of all the parties to that conversation there is no other sanction provided in the statute. We said, “The statute contains no provision for the exclusion of evidence obtained in violation of its provisions as is spelled out in the wiretapping laws, Code, Art. 36,[ 25 ] § 97, and the federal act, 18 U.S.C., §§ 2515 and 2518 (10) (a).” 19 Md. App. at 278 , 310 A. 2d at 830 . ⁴⁸⁹ While it is conceivable, but unlikely, that both the prosecutrix and Detective Evans could be prosecuted for violation of Md. Ann. Code art. 27, § 125A, that occurrence would not affect the introduction into evidence of the recordings which were properly admitted. IV “Did the trial court err in permitting the complainant and other state witnesses to testify that the complainant identified the voice of her assailant in a lineup and was the purported identification otherwise unreliable?” Following the appellant’s arrest, he, along with five other persons, was placed in a lineup.

The prosecutrix was advised that the person arrested at the bus station was one of the persons in the lineup. She was unable to identify visually any of the six persons, but after listening to all of them speak, the prosecutrix requested that she be allowed to listen to them on the telephone. Her request was denied. She then indicated that she was 85% to 90% certain that the voice of No. 3 in the lineup, the appellant, was that of her assailant.

At a pretrial hearing, Judge McAuliffe ruled that the identification procedure was not impermissibly suggestive. The assistant State’s attorney, in his opening statement at trial on the merits, referred, without objection, to the identification made by complainant at the lineup.