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.
Spectrography, a relative newcomer to the law of evidence, compared with fingerprints and ballistics, has been admitted in some courts
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:
After hearing "Everything you always wanted to know about spectrographs but were afraid to ask,"
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
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
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
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%.
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.
What has been proven and is acceptable scientifically is usually legally admissible evidence, but what is legally
Were the courts to rely upon "absolute certainty" in order for forensic evidence to be admissible, many of those areas of scientific expertise commonly received into evidence would of necessity be rejected. By way of example, speed,
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
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.
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 the 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 spectrograph'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.
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,
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. Baller, 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.
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:
The same author, in section 593, declares:
The Court of Appeals, in Corens v. State, supra, said,
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 appellant reasons, based on the quoted sections of Wharton's, Corens and Forrester, that because Detective
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:
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.
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.
Md. Ann. Code art. 27, § 125A provides in pertinent part:
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,[
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. Later when the prosecutrix was asked about the lineup, a bench conference was held out of hearing of the jury, and it was agreed that the testimony produced at the pretrial hearing would be incorporated by reference, but not repeated. The objection to the introduction of the evidence was overruled.
The victim, though unable visually to identify her assailant, was familiar with his voice as the result of several telephone calls. She had listened carefully to the voice of the caller on those occasions and was able to state that she was 85% to 90% sure that the appellant was her assailant. In addition, the length of time between the crime itself and the lineup was only four days.
There was nothing in the composition of the lineup itself that could be termed impermissibly suggestive. Despite the fact that there was no advance screening of the lineup participants, no unusual or highly noticeable discrepancies existed. Furthermore, as Judge McAuliffe observed, while the prosecutrix's knowledge that the man arrested at the bus station would be in the lineup may have placed some additional stress or compulsion on her to make an identification, it did not render the proceeding impermissibly suggestive.
On motion by the State, and over the strenuous objections of the appellant, he was required to submit to the furnishing of voice exemplars. Furnishing voice exemplars is a relatively simple procedure. The subject merely speaks several words into an electronic device which graphically records the characteristics of his voice. United States v. Askins, 351 F.Supp. 408 (D.Md. 1972). Compelling submission of the exemplars, however, raises the question of possible violations of the Fourth and Fifth Amendments.
It has long been held that the compelled display of identifiable physical characteristics does not infringe upon interest protected by the privilege against compulsory self-incrimination. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).
The Fifth Amendment protects only those communications and physiological reactions which are testimonial in nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). "[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Holt v. United States, supra, 218 U.S. at 252-53, 31 S.Ct. at 6, 54 L.Ed. at 1030, quoted in United States v. Dionisio, 410 U.S. 1, 6, 93 S.Ct. 764, 767, 35 L.Ed.2d 67, 74 (1973).
In United States v. Askins, supra, the defendant advanced the theory that the act of speaking into a machine somehow differs from the act of speaking to witnesses which was held valid in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The thrust of Wade, however, was not that the defendant was required to speak before live witnesses, but that he was "... required to use his voice as
The Supreme Court stated in Schmerber v. California, supra:
Wade refutes the contention that the compelled production of voice exemplars violates the Fifth Amendment. The exemplars of appellant's voice were to be used solely to measure the physical properties of his voice, and not for the testimonial or communicative content of what was said. See United States v. Dionisio, supra; United States v. Askins, supra.
Article 22 of the Maryland Declaration of Rights is to be construed in pari materia with the self-incrimination provisions of the Fifth Amendment to the Federal Constitution. State v. Panagoulis, 253 Md. 699, 253 A.2d 877
The Fourth Amendment guarantees that all people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." Any Fourth Amendment violation in the present setting must rest on a lawless governmental intrusion upon the privacy of the person rather than on unlawful interference with "property relationships or private papers." Schmerber v. California, 384 U.S. at 767, 86 S.Ct. at 1834, 16 L.Ed.2d at 918.
When a defendant's person is the source of the desired evidence, there is a two-prong test of reasonableness: First, the procedure used to obtain the evidence must neither shock the conscience nor offend society's traditional sense of justice. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The Fourth Amendment offers no protection for that which "a person knowingly exposes to the public, even in his own home or office...." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967). The physical attributes of a person's voice, just like his facial features, or his handwriting, are constantly exposed to the public. United States v. Dionisio, 410 U.S. at 14, 93 S.Ct. at 771, 35 L.Ed.2d at 79. Chief Judge Friendly, writing for the United States Court of Appeals, Second Circuit, in United States v. Doe, 457 F.2d 895, 898-99 (1972) opined:
Second, the police had probable cause in requesting the exemplar following applicant's arrest at the bus station and his identification at the lineup.
Appellant relies upon Lucas v. State, 271 S.W.2d 821 (Tex. Crim. 1954); State v. Taylor, 213 S.C. 330, 49 S.E.2d 289 (1948); and Beachem v. State, 162 S.W.2d 706 (Tex.Crim. 1942) to support his contention that compelling the production of voice exemplars violates his constitutional rights. All three of those cases held that requiring a person to speak certain words was a violation of the Fifth Amendment right against compulsory self-incrimination. The Supreme Court, in Schmerber and Wade, as the final arbiter of Federal Constitutional rights, decided otherwise. In any event, Lucas and Taylor grounded their holdings on Beachem which was expressly overruled in Olson v. State, 484 S.W.2d 756, 771 (Tex. Crim. 1969). We think that to the extent Lucas and Taylor depend on Beachem their vitality has been vitiated, and, additionally, since the Taylor decision, South Carolina has recognized Wade and upheld the introduction of voice tapes. State v. Vice, 259 S.C. 30, 190 S.E.2d 510 (1972).
We are persuaded that voice exemplars, taken, as here, under proper order of court, based upon probable cause, do not infringe upon an accused's Fourth or Fifth Amendment rights nor upon his Maryland Constitutional rights. We hold that the court order for the appellant to submit to the voice exemplars was proper.
Appellant contends that he thought he was calling a Miss Cynthia Armor at the Visitor's Service Center about an emergency pertaining to his detainer. The party at the other end of the line, however, proved to be, in fact, the complaining witness in the instant case. Appellant asserts that everyone in the detention center knew that a positive identification was imperative in his case to secure a conviction. Officer Capasso testified that the Maryland telephone directory is available to the inmates.
At trial appellant orally presented a motion in limine to prohibit the State from using the evidence of the call to the victim. The trial court conducted a hearing and denied the motion.
In denying appellant's motion in limine, the trial judge found as a fact that the call was made on the initiative of the appellant and not as a result of any State action. Appellant argues that, notwithstanding the trial court's determination, Blizzard v. State, 30 Md.App. 156, 351 A.2d 443 (1976) prohibits the use of any post-indictment statement elicited by the State, pertaining to the subject matter for which the accused has been indicted, absent an effective waiver of the right to the presence of counsel. Blizzard v. State, supra, was, however, reversed by the Court of Appeals in State v. Blizzard, 278 Md. 556, 366 A.2d 1026 (1976), so that
The Court of Appeals pointed out that, "`The rule [of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)] does not apply to spontaneous or voluntary statements made by the defendant in the presence of government agents.'" State v. Blizzard, 278 Md. at 568, 366 A.2d at 1032-33. See also, Moore v. Wolff, 495 F.2d 35 (8th Cir.1974); United States v. Tucker, 435 F.2d 1017 (9th Cir.1970); United States v. Garcia, 377 F.2d 321 (2d Cir.), cert. denied, 389 U.S. 991, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967). Contra, e.g., United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973).
Just as the Court of Appeals found in Blizzard, there is no indication in the case now before us that trickery or cajolery was employed by the law enforcement agents.
Costs to be paid by appellant.
Other experts also testified for the defense at the trial. They were of the opinion, in essence, that the spectrograph has not, as yet, established its reliability for use in evidence.
Sergeant Smrkovski testified that he spent about eighty (80) hours making the spectrograms, including listening to the tapes and visual analysis. With respect to seven telephone calls made to the prosecutrix by her rapist, the Sergeant stated:
No analysis was made on "Call No. 7" because, "That was distorted. It was very short."
We point out that this evidence was produced at trial, not at the preliminary hearing and was, therefore, an issue for the trier of fact — in this case — the jury. See Dobson v. State, 24 Md.App. 644, 649 n. 2, 335 A.2d 124, 127 (1975).
Evidence of the identity of a defendant may be challenged by a motion to exclude or suppress made before or during trial or by an objection to the evidence when it is offered. Md. Rules 725 and 522. See Townsend v. State, 11 Md.App. 487, 275 A.2d 191 (1971); Jones v. State, 9 Md.App. 455, 265 A.2d 271, cert. denied, 258 Md. 728, cert. denied, 400 U.S. 906, 91 S.Ct. 148, 27 L.Ed.2d 144 (1970); Smith v. State, 6 Md.App. 59, 250 A.2d 285 (1969), cert. denied, 397 U.S. 1057, 90 S.Ct. 1402, 25 L.Ed.2d 674 (1970). If the motion is made prior to trial, it may be preliminarily determined by the court, or the ruling may be deferred for determination at the trial of the general issue. Md. Rule 725 d. Denial prior to trial of a motion to suppress identification evidence, however, does not preserve the objection to the evidence on appeal. "Further objection must be made to the introduction of the evidence at the trial on the general issue as required by Rule 522 d 2. Under the dictates of that rule objection must be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent." Jones v. State, 9 Md. App. at 457, 265 A.2d at 272; quoted in Townsend v. State, 11 Md. App. at 488, 275 A.2d at 192. The transcript reveals that defense counsel in this case was careful about preserving the matter of admissibility for appeal. Appellant's objection was timely made under Rule 522. Moreover, the appellant also carefully preserved, in the record: the objections made at the preliminary hearing.