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Butler v. U.S.

November 7, 1994

EDWIN R. BUTLER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia. (Hon. Robert I. Richter, Trial Judge)

Before Steadman and Sullivan, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: After a joint trial with co-defendant Rodney Bush, *fn1 appellant was convicted of robbery in violation of D.C. Code § 22-2901 (1989); first-degree burglary in violation of D.C. Code §§ 22-1801 (a), -3202 (1989); first-degree theft in violation of D.C. Code §§ 22-3811, -3812 (a) (1989); and destruction of property in violation of D.C. Code § 22-403 (1989).

Although appellant challenges his convictions on a number of grounds, we need only address one of the issues raised by him on appeal. Appellant argues that the trial court erred by admitting into evidence, without proper authentication, a tape recording of an alleged conversation between appellant and Bush. We agree and, accordingly, reverse his convictions and remand the case for a new trial.

I.

On November 25, 1990, Timothy Vanover's residence was burglarized and numerous items of personal property, including a ruby ring, were stolen by two men who were subsequently identified by Vanover as appellant and Bush. According to the government's evidence, the ransacking and robbery events consumed some twenty-five to thirty minutes in Vanover's presence, during which the intruders talked to one another and Bush threatened Vanover's life.

On the morning of trial, but prior to jury selection, Bush's attorney informed the trial court that he was in possession of a tape recording which he stated Bush had made. The attorney also represented that the tape, which neither he nor the government's attorney had heard up to that point, consisted of three telephone calls, allegedly made between appellant and Bush, which were approximately thirty minutes in duration. After the tape was played in the courtroom in the presence of appellant, Bush, and their attorneys, the trial court ruled that it did not provide a basis for severance of the trials. Bush's counsel then stated that he wanted to introduce into evidence a portion of the tape during which the voice identified as that of Bush read a police report form # 251 to the voice identified as that of appellant, who made potentially inculpatory statements about selling the ruby ring taken from Vanover's residence. For purposes of this appeal, the portion of the tape recorded conversation between the voices alleged to be those of Bush and appellant is verbatim as follows:

BUSH: ah. . . Edwin.

BUTLER: Yeah, I'm listening

BUSH: Oh, okay, went down to the police and got both of them jones? I wanted to see what the description said right.

BUTLER: Aha

BUSH: Okay, I'm gonna read to you what it said. Okay the description of the two uhm people is they got suspect 1: black male, thirty years old, 5 foot 5, and heavy. Everything else, they got unknown. And for suspect 2 it says a black male, thirty, 5 foot 10, weight, eyes, hair and all that is unknown. Said he had on a red cap, navy blue coat and jacket and pants unknown. Uhm. . . They said in the report,' while at home . . Uhm. . . Subject 1 . . . suspect 1 and suspect 2 entered his home by throwing a cinder block through the back basement glass door. Suspect 1 then placed a knife to uhm complainant 1's body and stated, 'give me your money or I will kill you.' Complainant 1 handed the currency to suspect 1. . Suspect 1 led complainant 1 by knife point upstairs where the above list of items were taken. Suspect 1 and suspect 2 fled the house through the rear basement door running in an unknown direction. Complaintant 1 recieved no injuries. A general broadcast was given at 20:15 hours.

BUTLER: They ain't got nothing. I'm 5'8. I'm the tallest.

BUSH: Eyes- brown, ha.

BUTLER: They said husky build. Neither one of us was husky. You ain't even husky. So I

BUSH: Not really, for real . . Uhm. . . That shit in. . . And they say . . . what they say was taken? They say 20 dollars, 3/8 diamond ring worth 600 dollars, one 1/4 diamond ring worth 300 dollars, one ...


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