Appeal from Superior Court of Benton County. Docket No: 94-1-00246-9. Date filed: 11/04/94. Judge signing: Hon. Dennis D. Yule.
Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, John A. Schultheis.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Scott G. Wong repeatedly telephoned Carol Wong during their contested divorce proceeding. Mrs. Wong attached a recording device to her telephone and recorded a conversation with Mr. Wong in which he threatened to kill her or hire someone to do so. At trial, the court admitted the tape and played it for the jury. Mr. Wong was convicted of two counts of felony telephone harassment. He contends the court erred in (1) admitting the tape into evidence; (2) denying his motion for a new trial because the bailiff did not tell the jury it could have a tape player during its deliberations; and (3) refusing to give his proposed jury instructions. We affirm.
The State made an offer of proof at trial to admit the tape-recorded conversation of Mr. Wong's March 11, 1994 telephone call to Mrs. Wong. The prosecutor told the court that when he first listened to the tape he did not hear any threats. He called Mrs. Wong. She said that she had given the wrong tape to the sheriff. According to the prosecutor, a sheriff's deputy picked up a second tape from Mrs. Wong. The prosecutor opened the envelope, listened to the tape, replaced it in the envelope, and stapled the envelope.
Out of the presence of the jury, the court listened to the tape. On voir dire, Mrs. Wong testified the tape had not been altered and was an accurate recording of the telephone conversation she had with Mr. Wong on March 11. The court ruled that those sections of the tape including threats were admissible. But it ruled that absent an agreement with Mr. Wong, the State could not play those portions which did not contain threats. Mr. Wong agreed to play the full tape rather than just portions of it out of context. The tape included the following conversation:
[Mrs. Wong:] I just want you to leave me alone.
[Mrs. Wong:] . . . This can't go on forever, Scott. You can't be doing this forever.
[Mr. Wong:] Fucking end up dead before this is over.
[Mr. Wong:] Bullshit. Because you keep fucking with me. This is bullshit.
[Mr. Wong:] You're a dead fucking bitch.
[Mrs. Wong:] You're crazy. You know that. Just as crazy as you always been, Scott.
[Mr. Wong:] You're a fucking bitch. You're going to fucking die . . . .
[Mrs. Wong:] . . . Just leave me alone. That's what I want.
[Mr. Wong:] It won't fucking happen.
[Mrs. Wong:] Let's handle this through court. I don't want to talk no more.
[Mr. Wong:] I ain't hiring a divorce attorney.
[Mrs. Wong:] Well, hire what you ...