        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 1, 2011 Session

                STATE OF TENNESSEE v. McARTHUR BOBO

              Direct Appeal from the Criminal Court for Shelby County
                        No. 08-02588     Chris Craft, Judge


                 No. W2009-02565-CCA-R3-CD - Filed June 21, 2011


The defendant, McArthur Bobo, was convicted by a Shelby County Criminal Court jury of
second degree murder, a Class A felony, and sentenced by the trial court as a career offender
to sixty years in the Department of Correction at 100%. On appeal, he raises the following
issues: (1) whether the trial court erred by allowing the State to impeach a defense witness’s
testimony by introducing a tape-recorded conversation between himself and the witness that
took place during his pretrial incarceration; (2) whether the trial court erred by denying his
motion to suppress evidence of a pretrial photographic lineup by which two eyewitnesses
identified him as the shooter; and (3) whether the trial court erred by allowing testimony by
a witness that the victim’s children were at the victim’s home at the time the victim was
killed. Based on our review, we conclude that the defendant has waived consideration of the
suppression issue by his failure to include an adequate record on appeal. We further
conclude that the defendant has waived the remaining two issues by his failure to raise them
in his motion for new trial. Accordingly, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and C AMILLE R. M CM ULLEN, JJ., joined.

Michael R. Working (on appeal) and Robert Parris (at trial), Memphis , Tennessee, for the
appellant, McArthur Bobo.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William
L. Gibbons, District Attorney General; and Marianne Bell and Abby Wallace, Assistant
District Attorneys General, for the appellee, State of Tennessee.
                                         OPINION

                                           FACTS

        This case arises out of the defendant’s December 23, 2007 shooting of Michael Gibbs,
which resulted in the victim’s death. According to the State’s proof at trial, the defendant
had been in a fight with another man at the victim’s apartment complex approximately two
days before the shooting. Therefore, when the defendant came to the apartment complex on
the evening of December 23, 2007 and stood outside an apartment where a birthday party
was about to take place, the victim approached him and told him that he was a troublemaker
and that the residents of the complex did not want him there. As the victim turned to walk
away, the defendant mumbled a response. When the victim turned back around to ask the
defendant what he had said, the defendant pulled a gun out of his jacket and fired at the
victim’s feet. The victim ran in an attempt to escape, but the defendant pursued and fired
either two or three additional shots at the victim before fleeing, leaving the victim to die at
the scene.

                                        ANALYSIS

                         I. Admission of Impeachment Evidence

        The defendant raises three issues on appeal, all of which relate to evidentiary rulings
of the trial court. He first contends that he was unfairly prejudiced and his Fifth Amendment
rights violated when the trial court allowed the State to impeach his sister’s testimony, that
she had not recently spoken with him about her trial testimony, by introducing a tape-
recorded telephone conversation between the two that took place while the defendant was
incarcerated in the county jail. In the recording, the defendant discusses the alibi testimony
he expects his sister to provide at his trial, reminding her that she picked him up from his
grandmother’s home early on Christmas Eve and telling her that he has already talked to their
parents and is “trying to get everybody on one page.”

        Despite the fact that the tape was redacted to eliminate any references to the
defendant’s telephone call having originated from the jail, and the fact that the trial court
issued a lengthy curative instruction to the jury regarding its use solely as impeachment
evidence, the defendant argues that the tape unfairly prejudiced the jury against him by
presenting him “in an inflammatory and prejudicial way using foul language, slang, and
racial slurs.” In support, he points to the fact that he uses obscenities in the conversation,
asks his sister if an associate has gotten out yet, refers to that associate as a “nigger,” and
states that he has not seen him but has been “seeing a white boy.” The defendant asserts that
the jury could not only have inferred from his conversation that he was in jail, but also that

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he was “engaging in homosexual acts with a new partner.”

        The defendant did not, however, raise this issue in his motion for new trial. Issues
relating to the admission or exclusion of evidence that are not raised in a motion for new trial
are deemed to be waived on appeal. See Tenn. R. App. P. 3(e). Accordingly, we conclude
that the defendant has waived consideration of this issue on appeal. We also decline to
address the issue as plain error, as we conclude that no substantial rights of the defendant
were affected.

                      II. Denial of Defendant’s Motion to Suppress

       The defendant next contends that the trial court erred by denying his motion to
suppress photographic identifications of him as the shooter, arguing that the photographic
spreadsheet employed by the police was unduly suggestive. However, as the State points out,
the defendant did not include in the record either the transcript of the suppression hearing or
the order of the trial court denying the motion. It is the duty of the appealing party to prepare
an adequate record for appellate review. Tenn. R. App. P. 24(b). “When a party seeks
appellate review there is a duty to prepare a record which conveys a fair, accurate and
complete account of what transpired with respect to the issues forming the basis of the
appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). In the absence of an adequate
record on appeal, this court must presume that the trial court’s actions are correct and are
supported by sufficient evidence. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.
1991). Therefore, because the record in this case is incomplete, we presume that the trial
court properly denied the defendant’s motion to suppress.

             III. Admission of Testimony of Presence of Victim’s Children

       As his last issue, the defendant contends that the trial court erred by allowing a
witness to testify that the victim’s children were staying with the victim on the night of the
shooting. The defendant objected at trial after a State’s witness testified that the victim’s
children, who did not live with him full-time, were visiting at the victim’s apartment on the
night of December 23, 2007. In the bench conference that followed, the State argued that
evidence of the children’s presence was intended to show why the victim was anxious to
avoid any trouble at the complex. The trial court ruled that the evidence was “not that
relevant,” but it was also not prejudicial. Thereafter, the State resumed its examination of
the witness without asking any further questions about the victim’s children.

      The defendant argues that evidence of the children’s presence, which suggested that
they might have witnessed their father’s death, unfairly prejudiced the jury against him.
Once again, however, the defendant failed to raise this issue in his motion for new trial. He

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has, therefore, waived consideration of the issue on appeal.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.

                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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