As a result of the pretrial discovery described above, the defendant was fully aware before trial that the thrust of the Commonwealth's case would be what it turned out to be, namely, that the defendant and DeMarco conspired to distribute heroin. See Commonwealth v. Baker, 368 Mass. 58, 77 (1975); Commonwealth v. Williams, 8 Mass. App. Ct. 283, 286 (1979). The defendant's next argument on appeal is that the trial judge erred in failing to apply "Wharton's Rule."
Although the witness could not identify the defendant as the maker of the statement, there was enough other evidence that it was the defendant to support the admission of the testimony. Cf. Commonwealth v. Hartford, 346 Mass. 482, 488 (1963); Commonwealth v. Williams, 8 Mass. App. Ct. 283, 290 n. 8 (1979). Captain McCarthy had testified that the defendant had told him that on the evening of August 7 he had left his apartment at about 8:30 P.M., had bought a bottle of rum, two bottles of cola, and a bag of ice at the liquor store in question, and had taken these supplies to Chalue.
See also Stroud v. Dorr-Oliver, Inc. (1976), 112 Ariz. 574, 544 P.2d 1089, 1090. Concerning prejudice, it has been held that evidence is admissible that shows a witness feared a defendant in a criminal case because of threats made to the witness by the defendant or an assault on the witness by the defendant despite the fact such evidence also shows the defendant may be guilty of another crime. Commonwealth v. Williams (1979), ___ Mass. ___, 393 N.E.2d 937, 942; Commonwealth v. Douglas (1968), 354 Mass. 212, 236 N.E.2d 865, 874. The relevancy of the testimony appears to be equally well established under Montana law. Rule 611(b)(1), Mont.R.Evid., expressly allows a witness to be impeached on cross-examination. Allowable methods of impeachment include showing a motive to testify falsely.
As for authentication, the neighbor had already authenticated the victim's voice once, in connection with the 911 call. See Mass. G. Evid. 901(b)(5) (2020); Commonwealth v. Williams, 8 Mass. App. Ct. 283, 291 (1979), quoting Commonwealth v. Lykus, 367 Mass. 191, 201 n.4 (1975) ("Identification of telephone voices by witnesses familiar with the voice of the identified person has long been permitted by the law of the Commonwealth"). Passing that point, the jurors had just heard the victim's voice on the 911 call, and could have reached their own conclusion as to the voice on the jail call excerpt.
Therefore, where a recording of telephone conversations exists (provided it is deemed an accurate representation โ a necessary prerequisite for admissibility, see Commonwealth v. Jerome, 36 Mass. App. Ct. 59, 62 [1994]) a witness may offer identification testimony simply upon a showing that the first prong of the Chartrand test is met, i.e., that the witness is familiar with the speaker's voice. See Commonwealth v. Williams, 8 Mass. App. Ct. 283, 291 (1979). Here, both the victim and the defendant's parole officer provided sufficient evidence of their familiarity with the defendant's voice for the trial judge to conclude that they would be able to recognize the defendant's voice.
Fogarty v. Commonwealth, 406 Mass. 103, 111 (1989). Commonwealth v. Williams, 8 Mass. App. Ct. 283, 289 (1979). During the required colloquy between the judge and the defendant about the proffered plea (see generally Smith, Criminal Practice and Procedure ยงยง 1237-1238 [2d ed. 1983]), the defendant denied knowing the items of personal property he had taken in trade were stolen. Refusal of the guilty plea in this case was based partly on the defendant's denial of an element of one of the crimes with which he was charged and on an expression by the judge of his opinion that if the defendant were, indeed, guilty, the punishment recommended was not commensurate with the crime.
In the discretion of a trial judge, a voice identification may be considered by a jury as long as the witness expresses some basic familiarity with the voice he or she claims to identify. See Commonwealth v. Williams, 8 Mass. App. Ct. 283, 290-291 (1979); Proposed Mass.R.Evid. 901 (b) (5) (1985) ("[i]dentification of a voice, whether heard first hand or through mechanical or electronic transmission or recording" may be made "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker"). See also United States v. Rizzo, 492 F.2d 443, 448 (2d Cir. 1974).
The judge was not required to recuse himself. See Commonwealth v. Williams, 8 Mass. App. Ct. 283, 288 (1979). For the reasons set forth in part 1 of this opinion, the judgments are reversed and the verdicts set aside.