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APPEAL
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-16-255],
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
John Q.
Hurst, for appellant.
Leslie
Rutledge, Atty Gen., by: Kent G. Holt, Asst Atty Gen., for
appellee.
OPINION
ROBERT
J. GLADWIN, Judge
In
this appeal from his conviction for two counts of aggravated
robbery, Jeremy Andrew Avery argues that the evidence
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was insufficient and that the circuit court erred in
admitting an officers testimony identifying his voice in an
audio recording. We affirm.
I.
Facts
Avery
was charged in the Garland County Circuit Court with two
counts of aggravated robbery and possession of a firearm by
certain persons in association with armed robberies at Subway
and Sonic restaurants in Hot Springs. At the jury trial, Hot
Springs police officer A.J. Tart testified that in March 2016
he had been working as an investigator with the Garland
County Sheriffs Office and was assigned to investigate an
aggravated-robbery call from Sonic near Airport Road. He took
statements from both managers, Kayla Dixson and Corry Davis,
who gave a description of the suspect. The suspect had been
wearing a dark navy-blue hoodie with the Bass Pro Shop logo
on the front, some form of face mask covering the suspects
face, and light-colored blue jeans. From the surveillance
video, Officer Tart noticed a black-and-orange cell-phone
case in the suspects back pocket. The managers said that
$470 had been taken from the store and that there was a phone
number on Sonics call log from a late order that was never
picked up. When Officer Tart researched the phone number, the
Arkansas State Police gave him Averys name, and a search
warrant was issued for the phone.
Officer Tart said that there was already a search waiver on
file for Averys residence, so he and other investigators
went to Averys residence; in the driveway was a black
Cadillac CTS belonging to Avery. Inside the vehicle in plain
view on the passenger side was a black automatic pistol. In
Averys bedroom, Officer Tart found a navy-blue hoodie with
the Bass Pro Shop logo on the front as well as a full face
mask and a cell phone in a black-and-orange case.
When
the search was completed, Avery was taken to the Garland
County Sheriffs Office, and Officer Tart conducted an
interview with him. That interview was recorded, and the
recording was played in pertinent part for the jury. During
the interview, Avery denied the robberies; then he admitted
that he was told he would get one hundred dollars if he
"parked and waited on them" and then drove
"them" home after the robberies at Subway and
Sonic.
Officer Tart testified that he was asked to listen to a
recorded phone conversation from the Garland County Detention
Center and was able to identify Averys voice on the
recording. When the State moved to introduce the audio
recording into evidence, Averys attorney objected because
Officer Tart was not the person who recorded the call. The
objection was also based on a lack of foundation for
identification of the voice. Counsel argued that the
interview that had been played for the jury was not enough to
lay a foundation for Officer Tart to identify Averys voice.
After the circuit court overruled the objection, counsel
continued to argue that to challenge the witnesss
identification, he would be forced to elicit testimony
regarding Averys prior convictions. The circuit court
overruled the objection.
The
audio recording was played for the jury. In it, one of the
speakers asks the other to ask a third party to appear in
court and plead the "Fifth." After the recording
was played, Officer Tart testified on cross-examination that
he had been told it was a call from Avery before he
identified the voice on the call as Averys. ...