PEOPLE v. KELLY

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Emmett KELLY, Defendant and Appellant.

Cr. 6731.

Decided: June 18, 1975

Law Offices of Paul Caruso by Peter Brown, Beverly Hills, and Robert E. Baron, North Hollywood for defendant and appellant. Evelle J. Younger, Atty. Gen., Conrad D. Petermann and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

Robert Emmett Kelly appeals the judgment after the court found him guilty of extortion (Pen.Code §§ 518–520). The case was submitted on the grand jury transcript and the testimony in pretrial motions. Kelly received three years probation with certain conditions.

Between November 1969 and May 1972 Terry Waskin had placed numerous bets on sporting events with Alyn Brannon. On August 15, 1972 an anonymous man phoned Waskin demanding $2,800 which Waskin owed Brannon; otherwise, Waskin would suffer grevious bodily injury. Four days later at 2:30 a. m. Waskin's wife, Kathleen, answered the phone and hung up on the anonymous caller when threats were made. The same person called a second time, asked to speak to Waskin, told Kathleen not to hang up on him again, and told her to look at the front door. Waskin went to the door and found a butcher knife embedded in it.

Waskin reported the incident to the police who with Waskin's consent, installed a tape recorder on his phone. Two calls from the unidentified, unknown male were recorded. Both these calls contained threats of physical harm to Waskin if he did not pay the $2,800. These are called the extortion tapes.

The police played the tape for an informant, to find out if the caller were Red Miller. He identified the voice as belonging to Bob Kelly who worked at Domain Motors and lived at the Oakwood Apartments in Newport Beach.

An investigator for the district attorney's office called Domain Motors and left a message for Kelly to return his call. When Kelly called back this conversation was taped. The informant, on hearing this tape, said the voice was not that of the Robert Kelly he was referring to. This tape was later lost is called the lost tape.

A police officer called Domain Motors posing as a customer, and asked to talk to Robert Kelly. A second officer watched Kelly answer the phone and observed and listened to him while he was on the phone. This conversation was tape recorded and is called the control tape.

A spectograph analysis showed the voice on the extortion tapes was the same as the voice on the control tape.

Kelly says the trial court reversibly erred in denying his motion to compel disclosure of the identity of the confidential person who identified the voice on the tape. Evidence Code section 1041 states in pertinent part:

‘[A] public entity has a privilege to refuse to disclose the identity of a person who has furnished information . . . [in confidence to a law enforcement officer] purporting to disclose a violation of a law of the United States or of this state . . ..’

Kelly argues the ‘informant’ here merely identified a voice on a tape recording and did not voluntarily, knowingly and independently approach the authorities and inform them of criminal conduct. This person, he continues, was not an informant and the People had no right to refuse to identify him under section 1041.

‘The common-law privilege of nondisclosure is based on public policy. ‘The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.’' (People v. McShann, 50 Cal.2d 802, 806, 330 P.2d 33, 35, quoting from, Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639.)

The commission of crimes includes the identity of the perpetrator (1 Witkin, California Crimes, § 88). Where a citizen can aid in this identification, he is subject to the same dangers as the person who reveals the crime itself. Here the informant knew Kelly well enough to identify him by hearing his voice. Without reasonable assurances of nondisclosure, citizens would be reluctant to identify acquaintances and friends who are suspected of criminal conduct. This meets the purpose of protecting the public interest in effective law enforcement by allowing nondisclosure.

Kelly's suggestion the contact between the informer and officials must be initiated by the informer rather than the police is unmeritorious. In addition, there is no evidence here to suggest the informer's revelations to the police were not made voluntarily and knowingly.

Kelly argues that even if the informer is protected by Evidence Code section 1041, the People were nonetheless required to disclose his identity because he was a material witness. It is well established that an accused has the constitutional right of knowing the informer's identity when he shows a ‘reasonable possibility’ the informer will be a material witness on the issue of guilt (People v. Borunda, 11 Cal.3d 523, 527, 113 Cal.Rptr. 825, 522 P.2d 1). Here the informer was neither a participant in nor an observer of the crime; the informer learned of the crime when told about it by the police; the informer's only role was to identify the voice on the tape. His capacity is that of a mere informer who

“. . . simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged.” (People v. Garcia, 67 Cal.2d 830, 836, 64 Cal.Rptr. 110, 114.)

Kelly correctly states the court below used too stringent a standard in requiring him to show the informer was a material witness by ‘convincing evidence’ rather than by ‘a reasonable possibility.’ However, since the informer, as shown above, was not material under the less stringent standard, this error was not prejudicial.

Kelly also complains the trial court erred in saying the informer himself must exonerate the defendant in order to be deemed a ‘material’ informer rather than the informer need only give evidence bearing on the accused's guilt. Again, there is no prejudice and, thus, no reversible error since the informer was not shown to possess evidence bearing on guilt.

Kelly claims the informant was a material witness whose name should be disclosed because the informant might have been biased against him, the informant might have possessed an interest or stake in the criminal activity, an agreement might have existed between the investigators and the informant bearing on the informant's identification and the informant might be impeachable. However, he sets out no support for these assertions. Although speculation may be part of the standard, ‘a reasonable possibility,’ (Williams v. Superior Court, 38 Cal.App.3d 412, 420, 112 Cal.Rptr. 485) in this instance Kelly does not offer any facts on how nondisclosure of the informant's identity would affect his defense (People v. Kilpatrick, 31 Cal.App.3d 431, 436, 107 Cal.Rptr. 367). Kelly claims he needs to question the informant to determine whether he was involved in the criminal activity for which he, Kelly, was convicted; yet, he gives us no reason to believe the informant was so involved. (See People v. Shipstead, 19 Cal.App.3d 58, 64, 96 Cal.Rptr. 513.) When the informant identified Kelly's voice, it was not an accusation nor did it ‘reveal . . . [he] was in illegal activity’ (People v. Shipstead, supra, 19 Cal.App.3d 58, 75, 96 Cal.Rptr. 513). It was the policeman who revealed to the informant the fact criminal activity was involved; the informant merely provided the officer with the voice's identity. The informant was not a material witness.

When Kelly demanded disclosure of the informant's identity, a hearing was held under Evidence Code section 1042(d) which states in pertinent part:

‘When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. . . .’

Kelly claims error because there was no evidence at the hearing the informant was reliable. Unlike section 1042(c), which deals with the use of an informant's information in determining probable cause to search or arrest, there is no requirement the informant be shown to be reliable under section 1042(d). This latter section concerns itself with whether the informant is a material witness on the issue of guilt. In this situation reliability is not crucial; if the informant is material, his name must be disclosed and he will be subject to possible impeachment; if the informant is not material, the information provided by him does not go to guilt or innocence. There was no need here to show the informant was reliable.

As provided by statute, part of the section 1042(d) hearing was held in camera outside the hearing of the defendant and his counsel. Kelly's argument it was reversible error for the court to hold this hearing without requiring the informant's presence is unmeritorious (People v. Kilpatrick, supra, 31 Cal.App.3d 431, 435, 107 Cal.Rptr. 367). His claim that this procedure denies him the right of confrontation guaranteed by the Sixth Amendment is misplaced; the confrontation clause applies only to trials (Shuler v. Wainwright, 5 Cir., 491 F.2d 1213, 1224).

Kelly claims his privacy was invaded when the officer observed him and overheard his end of the telephone conversation which, unbeknownst to him, was being taped for comparison purposes by the police.

‘The basic test as to whether there has been an unconstitutional invasion of privacy is whether the person has exhibited a subjective expectation of privacy which is objectively reasonable and, if so, whether that expectation has been violated by unreasonable governmental intrusion.’ (Jacobs v. Superior Court, 36 Cal.App.3d 489, 493–494, 111 Cal.Rptr. 449, 452.)

However, here the policeman was on the porch surrounding the office of an auto dealer; there were no blinds or curtains at the windows; the windows were closed. This was a place the officer had a right to be (Lorenzana v. Superior Court, 9 Cal.3d 626, 634, 108 Cal.Rptr. 585). When the officer saw Kelly, he was standing, talking on the phone in the office. This was not his private office (see People v. Dumas, 9 Cal.3d 871, 881–882, 109 Cal.Rptr. 304, 512 P.2d 1208) but was the business center of the establishment, which was open to other salesmen, customers and the public. There is no evidence to indicate Kelly exhibited any ‘subjective expectation of privacy.’ Under these circumstances there was no unreasonable government intrusion.

Kelly complains that misplacing the lost tape deprived him of due process.

‘When evidence is favorable to an accused and material either to guilt or punishment, its suppression is a denial of fair trial and due process, irrespective of the prosecution's good or bad faith.’ (McCullar v. Superior Court, 264 Cal.App.2d 1, 7, 70 Cal.Rptr. 21, 26.)

The burden is on the defendant to show it is reasonably possible the missing evidence would assist him in his defense. (See People v. Hitch, 12 Cal.3d 641, 649, 117 Cal.Rptr. 9, 527 P.2d 361.) Here the investigator had called Domain Motors and left a number for Robert Kelly to return the call. The number was called several days later by a person who said he was Bob Kelly. The call was taped but when the informant listened to it he said the voice was not that of the Robert Kelly he had in mind. Under these circumstances, Kelly argues, the People should have retained the tape and made it available for scientific comparison with the control tape. However, in this instance the tape was made as part of the general investigation of the crime and search for its perpetrator, Bob Kelly. None of the conversation on the tape dealt with the crime; only the voice was of any import. If the voice on the lost tape were not the same as the one on the extortion tapes, then this evidence would be irrelevant. If the voice on the lost tape were the same as the one on the extortion tapes, the evidence would be cumulative, and it would show only that the officers' conclusion the voices in the two conversations were different was erroneous. Kelly argues if the tape had been kept and the voice shown to belong to another Bob Kelly there is a reasonable possibility he would have been eliminated as a suspect. However, it is the fact that Kelly's voice matches that on the extortion tapes not the fact there are several ‘Bob Kellys' that is important. Kelly contends the lost tape cannot be cumulative evidence because there is no other tape recording of a voice identifying itself as belonging to ‘Robert Kelly.’ As noted above, it is not by what name the voice identified itself but whether it matches the voice on the extortion tapes that is important. There is no showing of a reasonable possibility the tape would have assisted Kelly in his defense.

Kelly complains the trial court erred in ruling the technique of speaker identification through spectograph analysis or ‘voice-prints' has attained general acceptance in the scientific community. This is a question of fact for the trial court (Hodo v. Superior Court, 30 Cal.App.3d 778, 784, 106 Cal.Rptr. 547) and we look to see if there was substantial evidence to support the ruling. Here, only one expert, Lt. Ernest W. Nash, head of the Michigan State Police Voice Identification Unit, testified. The court relied on his testimony and past case law in weighing its decision. Nash's opinion was that all experts in the field agree speaker identification is accepted as a reliable scientific method of proof. The lieutenant discussed the general design and execution of the Michigan State study on the reliability of voiceprints. During the forensic phase of this study, Nash confirmed by collateral sources the accuracy of voiceprint identification in 35% of the cases and found these identifications were 100% correct. If believed by the trial court, as he obviously was, this testimony constitutes substantial evidence even though the previous case law has both allowed and denied the introduction of voiceprints. The prosecution carried its burden.

Kelly claims Nash's testimony was subjective and self-serving and was filled with inaccurate information which misled the trial court. However, Nash was subjected to extensive cross-examination; there were no defense witnesses to contradict his testimony; the trial court had the power to accept or reject his testimony (People v. Cagle, 21 Cal.App.3d 57, 66, 98 Cal.Rptr. 348). On appeal, the court does not deal with questions regarding the credibility of witnesses.

Kelly argues the recent case of People v. Low, 40 Cal.App.3d 69, 114 Cal.Rptr. 708, where the court refused to admit voiceprints is dispositive of the present case. However, in Low, the identification was of a disguised voice. None of the studies to date has included voiceprints of disguised or mimicked voices so there is no scientific information on their accuracy in these circumstances. Here, there is no issue of disguised voices. Kelly points to dictum in Law casting doubt on the admissibility of any voiceprints, whether the voice is disguised or not, and argues we must reverse. However, the information presented in that case including articles and other experts, was available at the time of the present trial and was not offered to the trial court here. On the basis of the record presented to us there was substantial evidence to support the ruling voiceprints have gained acceptance in the scientific community.

In addition, the policy consideration which the court in Law was concerned about does not apply here. There was no fear a jury might rely too heavily on the scientific data since this case was decided by the court without a jury.

Kelly challenges the trial court's qualifying Nash as an expert.

“The trial court enjoys considerable latitude in determining the qualification of an expert. Its ruling will not be disturbed upon appeal unless a manifest abuse of discretion is shown. . . .” (Hodo v. Superior Court, supra, 30 Cal.App.3d 778, 784–785, 106 Cal.Rptr. 547, 550.)

Nash started three years training in the technique of voiceprint analysis in January 1967 under the instruction of Lawrence Kersha, a pioneer in the field. Since 1968 Nash has been a student of audiology and speech science at Michigan State University. He has prepared or reviewed over 180,000 voice spectograms and examined 3300 voices. Nash previously had qualified as an expert more than 50 times. He worked with Dr. Oscar Tosi, a professor at Michigan State University, in establishing the reliability of voiceprints, is a member of several professional organizations and is in constant communication with others who are knowledgeable in the field. There was no abuse of discretion in qualifying Nash as an expert.1

Kelly asserts the reliability and impartiality of the testing procedures used in analyzing the control and extortion tapes are suspect. He faults the fact Malcalm Hall, a trainee, made the spectographs and his qualifications were not established. However, Hall was directed to make the spectograms and did so in Nash's presence. Nash then checked the spectograms for accuracy before any analyses were conducted. Nash did the actual analysis, a procedure fully explained to the court. The voice prints reviewed were numbered clearly. Nash also explained the machine's design was such that any defect would result in no read out at all. There was a sufficient foundation to find the procedure reliable and impartial.

Judgment affirmed.

FOOTNOTES

1.  In United States v. Sample, D.C., 378 F.Supp. 44, 51–54, Lt. Nash's extensive qualifications and accomplishments are discussed. See also Commonwealth v. Lykus, 327 N.E.2d 671 (Mass., 1975).

GERALD BROWN, Presiding Justice.

AULT and COUGHLIN,* JJ., concur.

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