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Asencio v. State

Florida Court of Appeals, Fourth District

April 4, 2018


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 502014CF004333A.

          Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

          Klingensmith, J.

         Appellant Taide Asencio appeals his conviction for shooting into an occupied vehicle. He raises three issues on appeal, although only two of them merit discussion. First, whether the trial court erred by admitting a jail call made by appellant while he was in jail awaiting trial. Second, whether the trial court erred by allowing the alternate jurors to enter the jury room at the end of the trial, but before deliberations. We affirm on both of these issues. On the third issue of whether the jury's verdict was inconsistent, we affirm without comment.

         Appellant was arrested and charged with three counts of attempted murder with a firearm and one count of shooting into an occupied vehicle. The police investigation revealed he approached the back of a truck stopped outside a convenience store, and shot at the occupants seated inside. At trial, the State sought to admit into evidence the recording of a jail call made by appellant while in custody. To lay the foundation for admitting the call, the State called a detective to testify that she spoke to appellant for approximately thirty minutes, and was familiar with appellant's voice because of his distinctive "southern drawl." However, when asked whose voice she recognized in the recording, she said the name "Sanchez, " instead of appellant's name.[1] The prosecutor then abruptly ended direct examination of the detective without attempting to admit the recording into evidence.

         Later in the trial, a records custodian in the telecommunications department of the Palm Beach County Sheriff's Office was called to testify on behalf of the State. She confirmed that, as the custodian of records, she keeps and maintains the records of jail calls made by inmates at the Palm Beach County Jail and that those records are kept in the ordinary course of business. The records custodian testified that the recordings were recorded and maintained at or near the time the calls were made, and stored on a secure server only accessible with a username and password.

         She then explained to the jury how the jail's call system works. Once an inmate picks up the telephone, a recording plays and says the call may be recorded or monitored. The recording asks the inmate to manually enter his or her booking number plus PIN number into the phone's keypad. The system also requires inmates to verify their identity using a system that employs voice recognition software to match the inmate's voice with his or her name as recorded during the booking process. If this three-tiered verification process is successfully completed and the inmate dials the phone number for the outgoing call, the parties may start speaking once the call is accepted.

         The records custodian also explained that she created a CD containing over 100 calls made by appellant while he was in jail, and that the CD was an accurate reflection of those calls. The State sought to admit one of the jail calls on the CD into evidence. Defense counsel objected and argued that the call was not properly authenticated. The trial court overruled the objection, and admitted the recording into evidence. It reasoned that the recording of the call was admissible because of the jail call system's verification process and the fact that earlier at trial the detective recognized appellant's voice and identified him as the speaker in the jail call. Neither the prosecutor nor defense counsel informed the trial court that the detective identified the speaker in the recorded jail call as "Sanchez."

         The jail call was played for the jury. In the call, one of the speakers admitted to the shooting, and stated, "They got me on camera. . . . I hit him in the head one time and four in the back. But that mother fucker didn't die."

         After the jury was charged at the conclusion of trial, the trial court addressed the alternate jurors, and allowed them to go back into the jury room to say goodbye to the other jurors:

THE COURT: And so it is now incumbent upon me to identify our two alternate jurors and to excuse them with my sincere thanks. You do not know who they are. Our alternate jurors in this case are [Hernandez] and [McCray]. Those are our two alternates. Now, Ms. ...

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