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State v. Owens4/10/2002
of the view of the camera. Shortly before the phone call, Detective Openhowski left and reentered the room. At that time Owens stated the "intercom thing, speaker thing, taping everything I'm saying." Later, while talking to his mother, Owens again got up and approached the metal covering and clearly attempted to place his thumb over the place in the cover where the holes were located. The trial court observed that Owens' conduct made it "obvious to anyone watching the tape that the Defendant knew and believed he was being recorded during the phone call." The trial court ultimately found that, " uring the entire time of the phone call to his mother [Owens] was not exhibiting an expectation that such communication was not subject to interception . . . ." We agree.
[ .] Owens also had no objective-justifiable expectation of privacy in the interrogation room of a police station. In State v. McKercher, 332 NW2d 286 (SD 1983), the defendant was arrested, interrogated and made admissions in the interrogation room of a jail. Later that day, he made a phone call to his wife from a phone room in the jail. Those statements, in an even more private setting, were monitored by a jailer. The defendant argued that he had a reasonable (and subjective) expectation that his phone conversation would be private. We disagreed, noting that a prisoner's constitutional rights are subject to restrictions. Id. at 287. We stated, " hese restrictions allow jail officials to monitor and record conversations between detainees and their visitors for security reasons and to use the conversation as evidence against the detainee without violating the Fourth Amendment." Id. (citing U.S. v. Hearst, 563 F2d 1331 (9thCir 1977), cert. denied, 435 US 1000, 98 SCt 1656, 56 LEd2d 90 (1978). See also State v. Strohl, 587 NW2d 675, 682 (Neb 1999) (holding there is no reasonable expectation of privacy in a jail visiting room); State v. Weikle, 474 NW2d 486, 489 (Neb 1991) (holding that there is no reasonable expectation of privacy in a jail cell).
[ .] Under these circumstances, Owens had no objective or subjective expectation of privacy in the interrogation room of a police station. Therefore, Owens' conversation was not a protected "oral communication" under SDCL 23A-35A-1(10).
[ .] 7. Whether the trial court should have permitted the jury to view a transcript of the videotapes of the interview with Detective Openhowski and the phone call to Owens' mother.
[ .] The trial court permitted the jury to view a transcript of the audio portion of the videotapes of Owens' interview with Openhowski and Owens' conversation with his mother. The jury was permitted to view the transcript while they watched and listened to the videotapes. Owens contends that this trial aid should not have been used because the transcript "could be misleading" and because it was not an exact reproduction of the audio portion of the videotapes.
[ .] We have previously considered this issue in Faehnrich, 359 NW2d 895. There we held that typed transcripts may be used as visual aids when listening to recorded conversations. Id. at 899. We review the trial court's admission of transcripts under an abuse of discretion standard. Id.
[ .] In this case, the videotapes were approximately three and one-half hours in length. The trial court found that it would be extremely difficult, if not impossible, to understand the recordings without the benefit of a transcript. In addition, the trial court instructed the jury that the transcript could be used only for the limited purpose of helping the jury understand and follow the conversations as the jury was listening to the audio portion of the tapes. The trial court specifically
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