Alonzo v. State ex rel. Booth

BLOODWORTPI, Justice. This case was originally assigned to the author of the dissenting opinion. The facts and assignments of error are stated quite thoroughly and in detail in that opinion. It is unnecessary to repeat them here. We 'agree with each conclusion reached in'the dissenting opinion respecting each assign [610] ment of error except that which holds the trial court erred to reversal in denying defendant’s request to have the tapes examined electronically by an electronics expert to determine whether they had been altered or changed. The testimony of State’s witness, Stokes, who made the recordings is positive that the recordings were authentic, accurate and original, and that no changes, additions or deletions had been made thereto. He further testified they have never been out of his possession. Experts for both the State and defendant who examined the tapes agreed that their visual examination disclosed no splicing or alteration. Defendant’s expert witness, Worthy, states with reference to one of the tapes “it would give some possibility of this tape being recorded on another machine.” With respect to another of the tapes he testified that it “could indicate that the tapes had been tampered with or that the tapes were defective in some way. I could not determine exactly any tampering on these tapes unless I was given the opportunity to make an electronic check of the tapes.” At most, his testimony reduces itself to a “strong possibility that if tested with the proper electronic equipment you could detect slips and pops and patches,” and that “a complete electronic check may bring out the facts that it has been [spliced, dubbed, etc.],” but “now it is not a guarantee that it will.” It seems to us that this decision involves two points, whether the court is required under “due process” to permit a test on the tapes by defendant’s expert, and secondly, whether the court should have granted a continuance, halted or suspended the proceedings to enable the expert to do so, if such was necessary. The law in Alabama, and generally, is that it is discretionary with the trial court whether tests and experiments will be permitted outside of court for the purpose of using the result as evidence. 23 C.J.S. Criminal Law § 967; Campbell v. State, 55 Ala. 80. Likewise, in Alabama, our courts have always held it is discretionary with the trial court whether it should halt or suspend the trial to enable a party to secure or produce witnesses in court. See, cases at 6A Ala. Dig., Criminal Law, ‘§^649, (1), (2), and (4). And, in the exercise of that discretion the trial court is not to be reversed save for gross abuse of discretion. We find no gross abuse of discretion here on the part of the trial court. We feel this view is strengthened when the statements of defendant’s witnesses are considered — that there is only a “strong possibility” that the electronic device “could” detect alterations, and, in view of the unequivocal statements of Stokes that the tapes had neither been altered nor been out of his possession. The New York case of People v. Koenig, 34 Misc.2d 711, 228 N.Y.S.2d 1012, supports this conclusion. It held that it is discretionary with the trial court whether it grants a continuance to secure proof (in that case) of an expert as to whether there was an additional writing added to a “policy slip” introduced for the State. The New York court held the trial court was not to be reversed except for abuse of discretion although it did find abuse of such discretion in that case. To summarize, we hold that the defendant’s request to have the tapes examined electronically by an electronics expert to determine whether they had been altered or changed is a matter which addresses itself to the sound judicial discretion of the trial court not to be reversed save for gross abuse of that discretion. We find no such abuse of discretion under the facts of this case, and that the case should be affirmed. Affirmed. LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. [611] LAWSON, SIMPSON and COLEMAN, JJ., dissent.