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North Carolina v. Jarvis

Filed: April 6, 1982.

STATE OF NORTH CAROLINA
v.
ROLAND NORMAN JARVIS, JR.



Appeal by defendant from Johnson, Judge. Judgment entered 7 April 1981, in Superior Court, Mecklenburg County. Heard in the Court of Appeals 1 February 1982.

Morris, Chief Judge. Judges Vaughn and Martin (Harry C.) concur.

Morris

Prior to defendant's trial, defense counsel filed a motion to suppress a tape recording allegedly made by the prosecuting witness while defendant was forcing her to have sexual intercourse with him. The record shows that, in a pretrial hearing, the trial court, Judge Allen presiding, held an extensive voir dire hearing to determine admissibility of the recording. At the end of the hearing, the court entered an order allowing the State to admit the recording into evidence and at trial the recording was, in fact, admitted.

In this appeal, six of the seven questions defendant raises are concerned with alleged errors occurring during the voir dire hearing, in the court's order, or with the manner in which the recording was presented to the jury. The first argument is that, during the voir dire, the court erred in allowing the State to ask the prosecuting witness whether she had heard the tape recording in the prosecutor's office after the witness had already testified that she had not heard the recording since making it. We find nothing wrong with the trial court's allowing this question. It is apparent from the record that the prosecuting witness, who was thirteen years of age at the time of trial, had forgotten that she had listened to the recording in the prosecutor's office. The prosecutor's question simply rephrased his earlier question calling the witness' attention to the circumstances under which she had heard the recording. We find no prejudicial error which, if corrected, might have led to a different result in the hearing and, therefore, in the trial. G.S. 15A-1443(a).

By his next three assignments of error, defendant contends that the court erred (1) in allowing the prosecuting witness to testify that the recording accurately reproduced everything that happened, (2) in allowing her to testify that the recorder was capable of recording when she made the tape, and (3) by listening to the recording prior to ruling on its admissibility. Further, by his fifth assignment of error, defendant contends that the court erred in admitting the recording because it was not properly authenticated. Although we can find no case squarely on point with the case at bar, we have determined that there is no merit in defendant's argument.

In State v. Godwin, 267 N.C. 216, 147 S.E.2d 890 (1966), the Supreme Court held that tape recordings of telephone conversations between the defendant and the prosecuting witness were properly authenticated and, therefore, admissible into evidence where the prosecuting witness identified the voices and testified that the recordings were a fair and accurate representation of the conversations she had had with the defendant. In a later case, State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), the Supreme Court enumerated the steps necessary to lay a proper foundation for the admission of a defendant's recorded confession or incriminating statement made to law enforcement officers. Upon objection to the introduction of the recording, the court must conduct a voir dire to determine to its satisfaction (1) that the recorded testimony was legally obtained and otherwise competent; (2) that the mechanical device was capable of recording and that it was functioning properly at the time of the recording; (3) that the operator was competent and operated the machine properly; (4) that the recorded voices can be identified; (5) that the recording is accurate and authentic; (6) that the defendant's entire statement was recorded and no changes, additions or deletions, have since been made; and (7) that there was a proper custody and manner of preserving the recording since it was made.

The steps for authentication set forth in Lynch have been applied also for authenticating recorded statements made between a defendant and one who later becomes a witness for the State. See State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979). The Court in Detter stated:

Whenever a recorded statement is introduced into evidence the seven steps set forth in Lynch should be followed to insure proper authentication of that recording. 29 Am. Jur. 2d Evidence § 436 (1967); Annot., 58 A.L.R. 2d 1024, § 4 (1958) and cases cited therein. It is apparent, from a close reading of both Godwin and Lynch, that the seven steps enumerated in Lynch are but a further breakdown and more precise statement of the requirements for authentication that are subsumed within the second requirement in Godwin that the recording be a "fair and accurate representation of the conversations." State v. Godwin, supra at 218, 147 S.E.2d at 891.

Id. at 628, 260 S.E.2d at 584. We believe that the requirements for admitting into evidence tape recordings made by witnesses

after police intervention, should strictly apply to cases such as the present one where tape recordings are made by victims of an alleged crime before the police have intervened. With these requirements before us, we now review defendant's four assignments of error.

Defendant's argument that the trial court should not have allowed the prosecuting witness to testify as to the recording's accurate reproduction of events and the recorder's proper functioning is patently absurd. Under the Lynch requirements, the trial court had to determine that the recording was accurate and that the mechanical device was capable of recording. The only person capable of producing evidence on these issues was the prosecuting witness. Furthermore, we reject defendant's argument that the trial judge should not have listened to the recording prior to ruling on its admissibility. In the Lynch case, the Supreme Court stated that, upon an objection to the introduction of a recorded statement, the trial judge should not only hold a voir dire, but should also listen to the recording in the absence of the jury. "'In this way he can decide whether it is sufficiently audible, intelligible, not obviously ...


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