NOAH J. CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Noah Carter, a public officer, was convicted of accepting a bribe. The First District Court of Appeal reversed the conviction, finding that a tape recording that formed the basic evidence against him was so defective and unintelligible that its admission constituted reversible error and that jurors could only speculate about its contents.
The court held that admission of the tape recording was reversible error because the quality was so poor as to render the conversation unintelligible, making it improper to allow jurors to hear it and speculate about its contents. The court reversed the conviction and remanded for a new trial, finding it unnecessary to address the other appellate issues.
[1] A tape recording that is so inaudible, defective, and distorted that it renders a conversation unintelligible should not be admitted into evidence.
[2] A conviction cannot be based upon speculation by jurors regarding isolated portions of an unintelligible recording.
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Join FLexlaw to unlock all legal intelligence“It is our unanimous conclusion that the quality of the recording is so defective as to make the conversation unintelligible.”
Establishes the court's finding regarding the tape quality after personally listening to it during appellate review.
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Join FLexlaw to unlock all legal intelligenceDuring 1968-1970, an illegal Bolita gambling operation was conducted in St. Johns County. Warnock Tedder, a key member granted immunity, testified tha…
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Appellant, a public officer, appeals from a conviction of accepting a bribe. Appellant’s primary point on appeal involves a tape recording which he contends should not have been admitted into evidence. Appellant further contends that the trial court erred in admitting certain impeachment testimony into evidence and erred in refusing to grant a defense motion for production of Grand Jury proceedings.
The basic evidence adduced by the State is as follows: During 1968 an extensive Bolita operation was being conducted in St. Johns County. Numerous persons were involved in this illegal activity including one Warnock Tedder, the primary witness against appellant, who was granted immunity from prosecution by the State. Ted-der was in charge of the “day house” and had numerous persons working under him who collected the bets and kept the records. During this period of time Ted-der testified that he paid appellant $50 per week to be allowed to uninterruptedly conduct these activities. Sometime during 1969 another member of the gambling operation died and Tedder began running both the “day house” and the “night house.” He testified that at this time payments to appellant increased to $250 twice a month. Payments were supposedly made at various places including one payment made at Tedder’s home by his wife. On April 17, 1970, Tedder was arrested for conducting an illegal gambling operation. Three days later a recording device was placed on the phone in the Tedder home with his permission. Tedder was left alone to operate the recording device and record relevant incoming calls. The controverted evidence consists of one phone call, purportedly made by appellant to Ted-der at approximately 7:00 p. m. that same evening, which was recorded by Tedder. Apparently, something was wrong with the recording device and a great deal of “background noise” can be heard on the tape obliterating much of the conversation. Although the State made several copies of the tape attempting to filter out the background noise, only the original recording was admitted into evidence. Appellant contends that the recording was so inaudible, defective, and distorted that it should not have been allowed into evidence. We agree and reverse.
*231This Court subsequent to oral argument in this case listened to the controverted tape played by the same officer who operated the recorder during the trial. It is our unanimous conclusion that the quality of the recording is so defective as to make the conversation unintelligible. At first blush, we questioned how a recording so unintelligible could have been detrimental to appellant. We concluded, however, that individual jurors might have speculated upon the various isolated portions of the recording which could be understood. Such speculation cannot be a basis for conviction. The recording was of such poor quality that it was reversible error for the trial judge to allow the recording to be heard by the jury. Because of the foregoing conclusion, it is unnecessary to consider the other points raised in this appeal.
Reversed and remanded with directions to grant a new trial.
JOHNSON, J., and McLANE, RALPH M., Associate Judge, concur.
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Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988)…; State v. Steinbrecker, 409 So. 2d 510 (Fla. 3d DCA 1982); Gomien v. State, 172 So. 2d 511 (Fla. 3d DCA 1965). Cf. Springer v. State, 429 So. 2d 808 (Fla. 4th DCA 1983) (admission of almost totally inaudible tape reversible error); Carter v. State, 254 So. 2d 230 (Fla. 1st DCA 1971) (same), cert. denied, 257 So. 2d 260 (Fla.1972). Appellant has not demonstrated that the trial court abused its discretion in admitting the tape. As to the predicate for admission, we again find no basis for reversal. Appellant…
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Springer v. State, 429 So. 2d 808 (Fla. 4th DCA 1983)…contends that the trial court erred in failing to suppress the audio and video tapes in view of their inaudibility. He objected to the tapes and moved for a mistrial based on their total inaudibility. Appellant relies on the case of Carter v. State, 254 So. 2d 230 (Fla. 1st DCA 1971), in seeking a new trial. In that case, the First District determined that the trial court erred in allowing the jury to hear a tape recording of such poor quality that it was unintelligible because the jurors might have speculate…
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Edwards v. State, 529 So. 2d 1213 (Fla. 4th DCA 1988)…. 2d 1341 (Fla.1987); Springer v. State, 429 So. 2d 808 (Fla. 4th DCA 1983). When portions of a tape are inaudible, there is a danger that jurors will speculate about the audible portions and come to erroneous conclusions. Springer; Carter v. State, 254 So. 2d 230 (Fla. 1st DCA 1971), cert. denied, 257 So. 2d 260 (Fla.1972). This danger is most prevalent in cases where the tape recording is heavily relied on as evidence of the defendant’s guilt. For example, in Springer, this court held that the defendant was…
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