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Herman v. State7/12/2000
e telephoned Herman the night of the homicide. During deliberations, the jury requested a tape recorder that could be played at a slower speed. Herman objected to the request and claimed that his client would be prejudiced because playing the tape at a slower speed would change the character of Herman's voice. Judge Savell granted the jury's request and provided the following cautionary instruction: "This machine is provided to help you better understand the recorded conversation. The jury is cautioned that when the speed of a tape is altered it may no longer represent an accurate depiction of the events, emotions and inflections recorded on the tape."
Herman renews his same objections on appeal and adds that the jurors may have thought that Herman sounded intoxicated if the tape was played at a slower speed. But the voices of both Herman and Trooper Randall were audible on the tape recording. Even if the jury did not recognize that voices sound differently when played at a slower speed, Judge Savell's cautionary instruction highlighted that point. From our review of the record, we conclude that Judge Savell did not abuse his discretion by providing the jury with the variable speed tape recorder.
Is Herman's sentence excessive?
Judge Savell imposed a 50-year term with 20 years suspended, a net 30-year term of imprisonment. Second-degree murder is an unclassified felony for which -- at the time of Herman's offense -- the penalty ranged from a minimum sentence of 5 years to a maximum sentence of 99 years of imprisonment.
In Page v. State, this court reviewed past second-degree murder sentences and established a benchmark sentencing range for this offense. We concluded that a person convicted of second-degree murder "should [typically] receive a sentence of from twenty to thirty years" to serve. Thus, the unsuspended portion of Herman's sentence falls at the upper end of the Page benchmark.
Herman also argues that Judge Savell considered facts at sentencing that were not in the record. But we conclude that Judge Savell's findings are supported by substantial evidence in the record and are reasonable inferences from the evidence.
From our review of the entire sentencing record, we conclude that Herman's sentence was not clearly mistaken.
Conclusion
The judgment of the superior court is AFFIRMED.
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