Appeal from Lawrence Circuit Court. CC-93-261. Philip Reich, TRIAL JUDGE.
Rehearing Denied March 24, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.
Bowen, Presiding Judge. All Judges concur.
The opinion of the court was delivered by: Bowen
The appellant was indicted on two counts of distributing marijuana, a violation of Ala. Code 1975, § 13A-12-211. He was acquitted of the offense charged in Count 1 and convicted of the offense charged in Count 2. The appellant was sentenced to eight years' imprisonment and was assessed $1,000 pursuant to the Demand Reduction Assessment Act, Ala. Code 1975, § 13A-12-280, et seq. On this direct appeal of his conviction, the appellant raises three issues.
The State's evidence established that on two occasions the appellant sold a $25 bag of marijuana to Thomas Savage, an informant for the Lawrence County Drug Task Force. Savage tape-recorded both drug transactions. At trial, the prosecution offered and the court admitted into evidence the tape recordings and transcripts of the recorded conversations between the appellant and Savage.
The appellant claims that the trial court erred by allowing the recordings and transcripts into evidence because, he says
, the State failed to prove a proper predicate or to establish an unbroken chain of custody prior to their admission.
The predicate was established by Savage's testimony that the tape recorder he used was in proper working order at the time the conversations were recorded, and that he had listened to the tape recordings and reviewed the transcripts several times and both accurately reflected the conversations he had had with the appellant.
"When a qualified and competent witness can testify that the sound recording . . . accurately and reliably represents what the witness sensed at the time in question, then the foundation required is that for the 'pictorial communication' theory. Under this theory, the party offering the item must present sufficient evidence to meet the 'reliable representation' standard, that is, the witness must testify that the witness has sufficient personal knowledge of the scene or events pictured or the sounds recorded and that the item offered accurately and reliably represents the actual scene or sounds."
Ex parte Fuller, 620 So. 2d 675, 678 (Ala. 1993).
The appellant's argument that the State failed to prove a complete chain of custody for the tape recordings is without merit.
"Tape recordings do not require proof of a chain of custody to be admissible. . . . Sound tapes, like photographs, are admissible when a witness testifies they are reliable representations of the subject sound. Molina v. State, 533 So. 2d 701, 712 (Ala.Cr.App. 1988); C. ...