Avery v. State

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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, Att’y Gen., by: Kent G. Holt, Ass’t Att’y 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 officer’s 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 Sheriff’s 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 suspect’s face, and light-colored blue jeans. From the surveillance video, Officer Tart noticed a black-and-orange cell-phone case in the suspect’s back pocket. The managers said that $470 had been taken from the store and that there was a phone number on Sonic’s call log from a late order that was never picked up. When Officer Tart researched the phone number, the Arkansas State Police gave him Avery’s name, and a search warrant was issued for the phone.

          Officer Tart said that there was already a search waiver on file for Avery’s residence, so he and other investigators went to Avery’s 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 Avery’s 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 Sheriff’s 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 Avery’s voice on the recording. When the State moved to introduce the audio recording into evidence, Avery’s 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 Avery’s voice. After the circuit court overruled the objection, counsel continued to argue that to challenge the witness’s identification, he would be forced to elicit testimony regarding Avery’s 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 Avery’s. ...