Appeal from the Superior Court of the District of Columbia. (Hon. Reggie B. Walton, Trial Judge).
Before Ferren and Terry, Associate Judges, and Newman, Senior Judge. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Senior Judge Newman.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: This case is before us a second time. On remand from our decision in Taylor v. United States, 601 A.2d 1060 (D.C. 1991) (Taylor I), the trial court ruled that the voice exemplar appellant had proffered at trial -- and the trial Judge had rejected -- was inadmissible in evidence, and thus that appellant was not entitled to a new trial. Appellant now challenges that ruling. He contends, more specifically, that the trial court erred in the remand proceeding by (1) limiting its inquiry to the one voice exemplar format which appellant had proffered at trial, and (2) finding that the proffered voice exemplar was not minimally reliable.
We conclude, first, that appellant had no meaningful opportunity to proffer more than one exemplar format at trial, even though counsel had at least one other format in mind, and that the trial court accordingly erred in limiting its inquiry on remand to the one format suggested at trial. Second, we conclude that the trial court did not abuse its discretion in finding that the particular exemplar format proffered at trial would not have been minimally reliable; the court's finding was firmly grounded in the testimony of appellant's own proffered expert. Finally, we conclude that, on the present record, this court cannot properly assess the reliability of the alternate format which appellant had ready to present at trial and proffered on remand, but which the trial court, on remand, refused to consider. Accordingly, we must remand again to the trial court for an inquiry into the reliability of the alternate exemplar format which appellant proposed at the first remand hearing.
If the trial court finds on remand that appellant's alternate format would be admissible, it must grant appellant a new trial. If, however, the court finds on remand that appellant's alternate exemplar would not be admissible, appellant's conviction will stand affirmed, subject, of course, to the right of appeal of that ruling.
This case arises out of an undercover police operation on July 11, 1989. Appellant Maurice Taylor was convicted of robbing Officer Dean Welch of the Metropolitan Police Department at gunpoint, in the course of Welch's attempt to buy drugs from Taylor and several others. See Taylor I, 601 A.2d at 1062. There was a recording device in Officer Welch's car during this encounter, and the tape of the robber's voice, as well as Officer Welch's in-court identification of that voice as appellant's, figured prominently in the government's case. See id. at 1065-66. At trial, appellant chose not to testify. See id. at 1065. But he sought to defend on the ground that he had not been present during the drug sale and robbery and that the voice on the tape, therefore, was not his. Id. at 1066. Accordingly, he sought to present a live sample or "exemplar" of his voice to the jurors so that they could decide for themselves whether the voice on the tape was his. See id.
Defense counsel proposed to the court to present the voice comparison to the jury in the following manner. First, the jury would again hear a portion of the tape containing the voice which the government alleged was appellant's. Id. at 1065. Then, appellant, standing in the well of the court, would speak the same words that the drug seller and robber had spoken on the tape. See id. The jury could then Judge whether the voices were the same.
The trial Judge, Judge Scott, apparently assuming that the voice exemplar would have been a form of testimonial evidence, rejected appellant's proffer on the ground that the exemplar could only be presented if the defendant was willing to testify on the stand, under oath, subject to cross-examination. See id. at 1061. Given this condition, appellant chose not to testify and thus to forego the voice exemplar. See id. at 1066.
On January 30, 1990, a jury convicted appellant on one count of armed robbery, and on March 13, 1990, he was sentenced to fifteen to forty-five years in prison. Appellant challenged his conviction on the ground, among others, that Judge Scott had abused his discretion in rejecting appellant's request to submit a voice exemplar without taking the stand. See id. at 1061.
In Taylor I, we held that the Judge had erred by excluding the proffered voice exemplar on the ground that it was testimonial in nature and could not be presented without appellant's testifying under oath subject to cross-examination. See id. at 1066. Noting that decisional law well establishes that a voice exemplar is demonstrative, not testimonial, evidence, we ruled that Judge Scott should have made the admissibility decision after inquiring into the reliability of the proffered exemplar. See id. We did not reverse outright, however; rather, we remanded the case to the trial court for a proper exercise of the discretion the Judge possessed in regard to admission of the voice exemplar." Id. at 1067. *fn1 According to our remand order, if the trial court found that appellant's voice exemplar should have been admitted in evidence, then appellant would be entitled to a new trial; otherwise, if the court found that the exemplar should have been excluded, then appellant's conviction would stand affirmed subject to the right of appeal.
On remand, the trial court held two hearings, on November 20, 1992 and on May 25, 1993. The first hearing focused on the question whether the court's inquiry should be limited to the particular exemplar format appellant had proffered at trial, or whether the court could evaluate the potential reliability -- and therefore the admissibility -- of other exemplar formats proposed by appellant for the first time on remand. On January 26, 1993, the trial court issued an order limiting the inquiry to the exemplar format proffered at trial.
The second remand hearing, on May 25, 1993, focused on the reliability of the particular exemplar format that appellant had proffered at trial. The hearing consisted entirely of testimony by appellant's expert, Dr. Roger Shuy. On July 21, 1993, the trial court issued a memorandum opinion and order finding that appellant's exemplar would not meet the "minimally reliable" standard required for admission of the exemplar as demonstrative evidence at trial, and therefore denying appellant's request for a new trial.
Appellant contends on appeal that the trial court erred on remand by considering only the potential reliability of the one exemplar format he had proffered to Judge Scott at trial. Taylor I did not expressly address the question whether, on remand, the trial court should consider only that one format or whether it should permit appellant to proffer alternative formats which the court might find more reliable than the exemplar appellant had presented at trial. The only language in Taylor I arguably adverting to this issue suggests that this court considered the matter an open question:
Throughout this opinion, we use the phrases "voice exemplar," "voice sample," and "voice demonstration" interchangeably and make no assumption that one format is necessarily more appropriate here as evidence than any other.
Id., 601 A.2d at 1065 n.11 (emphasis added). We do not suggest that this language disposes of the issue; but, absent further elaboration, we believe this court recognized in Taylor I that there is not just one kind of voice exemplar format that can be properly admissible in evidence. On the other hand, this court in Taylor I presumably would not have allowed appellant to proffer alternate exemplar formats on remand that he had not been prepared to proffer at trial; the remand order, intended to cure trial court error, was not fashioned to offer appellant, in addition, a windfall opportunity to proffer voice exemplar formats that he would not have suggested in 1990 at trial if the Judge had been willing to admit such evidence.
The two-part question before us, then, is whether appellant had intended to proffer one or more additional voice exemplar formats at trial and, if so, whether he had been effectively precluded from doing so. The trial court addressed the second part -- the Judge's actions -- first:
I'll just again have to read the transcript and make a factual assessment as to whether or not Judge Scott through the Discussions that he had with counsel foreclosed the opportunity of counsel being able to make that type of alternative recommendation.
The trial court accordingly reasoned that, if appellant had had an opportunity to proffer alternative exemplar formats at trial but had not done so, then he should not have an opportunity to proffer alternatives at the remand hearing. Conversely, said the court, "if the Judge in an ironclad way was not prepared to listen to any potential alternatives and therefore foreclosed the potential alternatives being raised," then appellant should be permitted to proffer alternate exemplars.
After the first remand hearing on November 20, 1992, the trial court announced that it would not consider any alternate formats because Judge Scott had offered appellant the opportunity to present alternatives at trial but appellant had failed to do so. In support of this ruling, the court said:
There is no indication from the transcripts that Judge Scott was not inclined, or otherwise unwilling, to listen to other proposed formats. Additionally, the defendant's assertion is undermined by the fact that, after he first raised the issue of being permitted to speak before the jury on January 25, *fn2 his trial was recessed and judge Scott gave him the opportunity to present case authority in support of his proposed voice exemplar format when the case resumed the next day. During this recess, the defendant surely had ample opportunity to consider and to propose to Judge Scott alternative voice exemplar formats, either in the form of written pleadings or orally when the trial resumed on January 26. And, as previously stated, this court is not persuaded that Judge Scott would not have entertained proposed alternatives.
We cannot agree with the court's reading of the trial record. Although it may be correct to say that appellant had a temporal opportunity to proffer additional exemplar formats to Judge Scott after a recess, when the Judge had said he would receive case citations for the format already presented, we believe Judge Scott's treatment of the issue put defense counsel in a position where he was forewarned against -- and thus effectively precluded from -- making such a proffer. The Judge's dismissive attitude toward the proffer of any kind of voice exemplar from the first moment that proffer was made put defense counsel in a position where the very notion of proposing alternate formats undoubtedly appeared futile and possibly counter-productive.
[DEFENSE COUNSEL]: With respect to my client, our inclination at this point is to have Mr. Taylor from the well of the court, speak words that are on the tape. That is, to play the tape and to have Mr. Taylor speak the words that he hears on the tape. This is the tape I'm talking about where Detective -- I'm sorry -- Officer Welch has said that it is Mr. Taylor's voice that appears. What I would propose to do, what I intend to do, with the court's permission, is to play the tape, to have Mr. Taylor speak the words, from the --
THE COURT: Then he's going to be on the stand and under oath.
[DEFENSE COUNSEL]: No. He would not testify.
THE COURT: He is not going to do that, sir.
[DEFENSE COUNSEL]: He's not what?
THE COURT: Going to just make oral statements. If he wants to take the stand, he can.
[DEFENSE COUNSEL]: Take the stand and do what, Your Honor.
THE COURT: Deny that he said those things.
[DEFENSE COUNSEL]: What he would be doing would be a voice exemplar. Mr. Taylor would be a voice exemplar, Your Honor.
THE COURT: Show me a case tomorrow morning that supports your position, I will consider it. But if he wants to get on the stand and deny that he said it, he certainly is able to do that.
[DEFENSE COUNSEL]: What we want to do is to have him[,] just have him speak --
THE COURT: No, I'm not going to --
[DEFENSE COUNSEL]: -- the words that appear on the tape.
THE COURT: I am not going to have him do that, sir. Sir that is a denial. That would be a denial.
[DEFENSE COUNSEL]: Why is that a denial? We're asking the jury -- we're asking him to speak, a voice exemplar, and, therefore, for the jury to make its own determination -- THE COURT: Because that is what --
[DEFENSE COUNSEL]: Whether the voice of Mr. Taylor is the voice they hear on the tape.
THE COURT: Well, you're not going to do it. I can tell you that. If he wants to take the stand and deny that he said those things, he may do so.
THE COURT: Mr. [Defense Counsel]. Mr. [Defense Counsel], I am not going to permit him to allow ...