Opinion
No. 106,487.
2013-01-18
STATE of Kansas, Appellee, v. Lee VOGT, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, R. Thomas Colonna, legal intern, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, R. Thomas Colonna, legal intern, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P. J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lee Vogt appeals from his conviction by a jury of arson. Vogt contends that the trial court erred by admitting into evidence an audiotape of some voicemail messages. Finding no merit in this contention, we affirm.
On May 8, 2010, Casey Ketner, who was Vogt's girlfriend and the mother of one of his children at that time, picked up Vogt's other two children from a prior relationship so Vogt could attend a barbecue. When Vogt learned that Ketner had taken the children to a house known for drug use, he became angry. Ketner returned two of the children—but not the baby—to Vogt's home sometime between 11:30 p.m. and midnight.
At 1:28 a.m., on May 9, 2010, a motorist called 911 to alert authorities about a house fire. Ketner lived at the house, but she was not in the home when the fire started. When she returned home at about 2 a.m., she watched her house burn to the ground. Loyal Peevyhouse, a fire investigator, spoke with Ketner. Ketner asked Peevyhouse and Todd Allen, a police officer, to listen to voicemail messages left on her cell phone.
According to Vogt, a neighbor had awakened him and told him that Ketner had accused him of setting fire to her house. At about 3 a.m. on May 9, 2010, Vogt, who lived about three blocks away, arrived at Ketner's home. He walked up to Peevyhouse and, without solicitation, said, “I swear to God, I didn't set the fire.” Vogt also spoke with Allen. He told Allen that he and Ketner had argued and that although he had threatened to burn her house down, he was only joking and did not set fire to the house.
Peevyhouse later determined that the fire had been deliberately set. Dean Harcrow, a police detective, listened to the voicemail messages left on Ketner's cell phone. He recorded the voicemail messages on an audiotape. Harcrow also interviewed Vogt on three separate occasions; he recognized Vogt's voice as the same one on the voicemail messages. In his third interview with Vogt, Harcrow played the voicemail messages for Vogt, who, in turn, identified his voice on the audiotape of the voicemail messages and admitted that he had left those voicemail messages on Ketner's cell phone.
The State charged Vogt with one count of arson, in violation of K .S.A.2009 Supp. 21–3718(a)(1)(A).
On the day of the trial, Vogt expressed concerns that the State had not endorsed any witnesses from the cell phone carrier, Verizon Wireless, and that the automated messages—specifying the time and date when the voicemails were left—would constitute hearsay. After rebuttal from the State, Vogt reiterated that the voicemails were a “hearsay issue” concerning “whether [the State has] proper foundation basis to present a statement of truth.” The trial court, however, rejected Vogt's argument for a host of reasons, including that the automated time and date was not spoken by a human, not intended as an assertion, was part of the cell phone carrier's general business practices, and was circumstantially trustworthy.
Shortly before trial commenced, the State told the trial court that Ketner, who was under subpoena, had failed to appear. Vogt responded that he would object to “any admission of the voicemails because [Ketner] is the foundation, because she's the one that received the voicemails and had them on her phone.” The court noted Vogt's concerns but told him that it would not rule on an evidentiary issue until the issue arose at trial. Ketner never appeared during the 4–day trial.
The State called Allen as a witness and asked him about the voicemail messages. After the court overruled Vogt's hearsay objection, Allen testified that he listened to the messages left on Ketner's cell phone between 1:03 to 1:52 a.m. on May 9, 2010. But when the State asked Allen about the content of the voicemails, the trial court sustained Vogt's hearsay objection. Outside the presence of the jury, the State later asked the court to reconsider its ruling because the voicemail messages were statements made by Vogt—not Ketner—and that the messages were an exception to the hearsay rule as statements of the defendant offered against him. The court, however, told the State that the State had yet to produce any evidence showing that the defendant had admitted it was his voice on the voicemail messages.
When trial resumed the next day, Detective Harcrow testified that he made an audiotape of the voicemail messages from Ketner's cell phone:
“THE STATE: Sir, I'm going to hand you what's marked as State's Exhibit 5. Do you know what's on State's Exhibit 5?
“HARCROW: That would be, State's Exhibit 5 is going to be the phone messages that I had gotten off the cellphone.
“THE STATE: Okay. And those particular cellphone messages, did you tape them off yourself?
“HARCROW: Actually they were—yes.
“THE STATE: And when you taped the messages off, did you listen to them?
“HARCROW: Yes, I did.
“THE STATE: And did you recognize the voice on the messages?
“HARCROW: Yes, I did.
“THE STATE: Whose voice was it?
“HARCROW: That was the defendant, Lee Vogt.
“THE STATE: Okay. Were you familiar before listening to these text messages-or the voicemail messages with the defendant's voice?
“HARCROW: Yes.
“THE STATE: And able to recognize it?
“HARCROW: Yes.
“THE STATE: Did you also ask the defendant about those voicemails on that tape?
“HARCROW: Yes, I did.
“THE STATE: And did you ask him if those were, if that was his voice?
“HARCROW: Yes, I did.
“THE STATE: What did he say?
“HARCROW: He said they were.”
The State then moved to admit Exhibit 5 into evidence. Vogt objected “as to hearsay because foundation for where the messages came—the discussion we had yesterday.” The court, however, overruled Vogt's objection and admitted the audiotape of the voicemail messages into evidence.
The State played the audiotape of the voicemail messages for the jury. At 1:05 a.m. on May 9, 2010, Vogt said, “In your house, bitch, what are you going to do now? Taking everything. Fuck it.” Nine minutes later, Vogt left another message: “Shit, someone's going to be pissed off tomorrow, and it ain't going to be me.” And at 1:18 a.m., Vogt left another message:
“What, I don't even give a shit, fuck it, you can put this to the police. Bitch, that's why your house is down there burning. Damn. Fuck it up. Ah, that's me, I'll walk down there and burn that shit down. Fuck you and fuck this. Fuck it, we going to go to jail? Fuck it, let's go. Bitch.”
Vogt left this message about 10 minutes before the motorist called 911 to alert authorities about the house fire. In later voicemail messages, Vogt angrily accused Ketner of burning her own house down and placing the blame on him.
After playing the voicemails to the jury, Harcrow again testified that Vogt made the voicemails and that the voicemails were recorded from Ketner's phone.
Later, the State sought to admit into evidence Vogt's text messages to Ketner. The court permitted this request but prohibited the State from introducing evidence of Ketner's messages to Vogt. Vogt's text messages suggested that he was angry.
Vogt testified in his own defense and admitted to sending the text messages. Vogt also testified that he left the voicemail messages, but when asked whether he had an independent memory of the messages, Vogt said, “Vaguely. I mean, when I get to talking like that I just ramble off, so I mean the subject, anything could come out of my voice.” Vogt further testified that his threats to burn down Ketner's home were meant to upset her and that he did not set fire to her home.
The jury found Vogt guilty of arson, and the trial court sentenced Vogt to 39 months in prison. Was Adequate Foundation Laid by the State for the Admission into Evidence the Audiotape of the Voicemail Messages?
A trial court usually has considerable discretion in evidentiary rulings regarding foundation evidence, and its decisions are thus reviewed for an abuse of discretion. State v. Davis, 41 Kan.App.2d 1034, 1037, 207 P.3d 281 (2009). The adequacy of an evidentiary foundation is a question fact and is reviewed for substantial competent evidence supporting the trial court's finding. 41 Kan.App.2d at 1037, 207 P.3d 281 (citing City of Overland Park v. Cunningham, 253 Kan. 765, 773, 861 P.2d 1316 [1993] ).
Vogt claims that the State did not lay an adequate foundation for admission of the audiotape of the voicemail messages into evidence. See State v. Williams, 235 Kan. 485, Syl. ¶ 2, 681 P.2d 660 (1984). In Williams, our Supreme Court adopted a seven-part test regarding the foundation necessary in order to admit a recording. To satisfy this test, the State must demonstrate all of the following:
“ ‘(1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.’ “ 235 Kan. at 491, 681 P.2d 660.
This court has since observed that the seven-part Williams test may be obsolete and has been abandoned in other jurisdictions in better-reasoned cases that favor a rule holding that sound recordings, like photographs, are admissible when a witness testifies they are reliable representations of the subject sound. See State v. Kemp, 30 Kan.App.2d 657, 662–63, 46 P.3d 31,rev. denied 274 Kan. 1116 (2002). Nonetheless, the seven-part test remains in effect today. See, e.g., State v. Snow, 282 Kan. 323, 328–31, 144 P.3d 729 (2006) (applying the Williams test regarding whether the State laid an adequate foundation to admit a recording of the defendant's phone call from a county jail).
Preliminarily, however, Vogt did not raise a specific objection necessary to preserve his foundation argument for appellate review. At trial, he lodged a hearsay objection based on Ketner's absence, which, Vogt argued, precluded the State from laying foundation sufficient to admit the hearsay evidence of the voicemail recordings. But this is a separate argument from the foundation requirements in Williams, which concern the necessary steps that must be taken to admit a recorded speech into evidence.
As stated earlier, City of Overland Park, 253 Kan. at 773, 861 P.2d 1316, observed that a trial judge has considerable discretion in evidentiary rulings concerning foundation evidence. The City of Overland Park court also cited an Iowa decision, Public Finance Co. v. Van Blaricome, 324 N.W.2d 716 (Iowa 1982), which stated that a bare foundation objection is insufficient to preserve the issue for appellate review:
“ ‘When a party seeks to exclude evidence, the specific grounds of objection must be indicated to the trial court. This is to alert the court to the question raised and to enable opposing counsel to take proper corrective measures to remedy the alleged defect. [Citation omitted.] This court has held that where the objection to evidence is based on a claim of “no proper foundation” but does not state in what respect the foundation is lacking, the objection is insufficient to provide a basis for review on appeal. [Citations omitted.]’ 324 N.W.2d at 719.” 253 Kan. at 770, 861 P.2d 1316.
In the present case, Vogt, who did not file a motion in limine, failed to make a specific objection to the admission of the audiotape of the voicemail messages. When the State sought to admit the audiotape of the voicemail messages into evidence, Vogt objected “as to hearsay because foundation for where the messages came—the discussion we had yesterday.” Although this objection, on its face, concerns a foundational issue, Vogt's reference to “the discussion we had yesterday” seems to concern whether Ketner's absence from trial precluded admission of the audiotape of the voicemail messages because they were hearsay.
At the trial level, Vogt never objected or contended that the State had failed to meet one or more of the requirements of Williams for admission of the audiotape of the voicemail messages. Vogt, as the objecting party, had the burden to satisfy the requirements to exclude the admission of the audiotape of the voicemail messages. Because Vogt failed to show what was lacking in the State's foundation to gain admission of the audiotape of the voicemail messages, the trial court did not abuse its discretion in overruling Vogt's lack of foundation objection.
Moreover, the State laid a sufficient foundation for the introduction of the audiotape of the voicemail messages. Before the audiotape of the voicemail messages was admitted into evidence, Detective Harcrow testified that he listened to voicemail messages associated with the cell phone belonging to Ketner. Harcrow testified that he recorded the voicemail messages on an audiotape. Harcrow further testified that he recognized Vogt's voice on the voicemail messages.
Obviously, the central problem with the audiotape of the voicemail messages is authentication. Vogt, however, authenticated the voicemail messages when he identified his voice on the audiotape of the voicemail messages and admitted that he left those voicemail messages on Ketner's cell phone. Having established the making of the audiotape, the identification of the speaker (Vogt), the authentication of the voicemail messages, and that the audiotape was a complete reproduction of the voicemail messages left on Ketner's cell phone, the trial court correctly determined that the audiotape of the voicemail messages was admissible. Was the Audiotape of the Voicemail Messages Inadmissible Hearsay?
An appellate court reviews a trial court's admission or exclusion of hearsay statements for an abuse of discretion, which includes review to determine that the discretion was not guided by erroneous legal conclusions. State v. Race, 293 Kan. 69, 75–76, 259 P.3d 707 (2011).
Vogt argues that the trial court erred in admitting the audiotape of the voicemail messages. Specifically, he believes the audiotape of the voicemail messages is inadmissible hearsay because Ketner did not testify at trial and therefore never confirmed whether the voicemail messages, in fact, came from her cell phone. The State, meanwhile, argues that the voicemail messages were admissible under a host of exceptions to the hearsay rule.
K.S.A.2010 Supp. 60–460 defines hearsay as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” The theory behind the hearsay rule is that when a statement is offered as evidence of the truth of the matter stated, the credibility of the declarant is the basis for its reliability, and the declarant must therefore be subject to cross-examination. Race, 293 Kan. at 76, 259 P.3d 707.
There are several exceptions to the hearsay rule, however. Most notably, the State properly observes that Vogt's voicemail messages were an admission and therefore admissible despite Ketner's absence at trial.
K.S.A.2010 Supp. 60–460(g) defines an admission as follows: “As against a party, a statement by the person who is the party to the action in the person's individual or a representative capacity and, if the latter, who was acting in such representative capacity in making the statement.”
The State clearly satisfied all three of these requirements before seeking to admit the voicemail recordings against Vogt. First, the recordings were offered against Vogt because they evidenced the likelihood that he set fire to Ketner's home. Second, Vogt admitted to Harcrow that he was the speaker on the recorded voicemails. Peevyhouse also testified that police listened to and recorded the voicemails shortly after the fire, which further corroborates that Vogt was the speaker. In fact, after the voicemails were admitted into evidence, Vogt admitted he was the speaker. Third and finally, Vogt, the criminal defendant, was a party to the case in which the voicemails were admitted against him. Therefore, the trial court did not err. See State v. Franklin, 280 Kan. 337, 338–42, 121 P.3d 447 (2005) (defendant's text message to ex-boyfriend, suggesting she killed another woman, was an admission and therefore an exception to the hearsay rule).
Vogt's appellate brief does not deny that the voicemail messages were an admission. Nevertheless, he seems to argue that because Ketner did not testify during trial about the circumstances of the voicemail messages, they were inadmissible hearsay. This argument, however, ignores the fact that Harcrow testified—and Vogt later confirmed—that Vogt identified his voice on the audiotape of the voicemail messages and admitted, expressly or implicitly, that he had left those voicemail messages on Ketner's cell phone.
Moreover, the audiotape of the voicemail messages was admissible as an exception to the hearsay rule under K.S.A.2010 Supp. 60–460(1). Declarations of present state of mind are admissible as an exception to the hearsay rule when the declarant's state of mind is an issue in the case. Here, Vogt's hostility toward Ketner is relevant. His voicemail messages: “In your house bitch, what are you going do now? ... What, I don't even give a shit, fuck it, you can put this to the police. Bitch, that's why your house is down there burning,” was evidence of his ill feelings toward Ketner. This evidence was probative of motive when the fire occurred. Moreover, the voicemail messages were relevant to show Vogt's state of mind concerning a plan and design. Because the voicemail messages were relevant to prove or explain acts or conduct of Vogt, they were admissible under K.S.A.2010 Supp. 60–460(1). See State v. Hobson, 234 Kan. 133, 156, 671 P.2d 1365 (1983). As a result, Vogt's hearsay argument fails.
Affirmed.