          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                             JUNE SESSION, 1999
                                                          FILED
                                                            August 9, 1999
STATE OF TENNESSEE,                  )   C.C.A. NO. 02C01-9808-CC-00253
                                                      Cecil Crowson, Jr.
                                     )
                                                     Appellate Court Clerk
            Appellee,                )
                                     )   LAUDERDALE COUNTY
V.                                   )
                                     )
                                     )   HON. JOSEPH H. WALKER, JUDGE
BAWANA M. CARTER,                    )
                                     )
            Appe llant.              )   (FIRST DE GREE MUR DER)



FOR THE APPELLANT:                        FOR THE APPELLEE:

GARY F . ANTRICAN                         PAUL G. SUMMERS
District Public Defender                  Attorney General & Reporter

JULIE K. PILLOW                           R. STEPHEN JOBE
Assistant Public Defender                 Assistant Attorney General
P.O. Box 700                              2nd Floor, Cordell Hull Building
Somerville, TN 38068                      425 Fifth Avenue North
(At Trial)                                Nashville, TN 37243

C. MICHAEL ROBBINS                        ELIZABETH T. RICE
46 North Third Street, Suite 719          District Attorn ey Ge neral
Memphis, TN 38103
(On A ppea l)                             MARK E. DAVIDSON
                                          Assistant District Attorney General

                                          JAMES WALTER FREELAND, JR.
                                          Assistant District Attorney General
                                          302 M arket Stre et
                                          Somerville, TN 38068



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
      The Defenda nt, Bawana M. Carter, a.k.a. Mich ael Carter, appeals as of right

his convictions for one count of first degree murder and two counts of attempted first

degree murder in the Lauderdale County Circuit Court. The trial court sentenced

Defendant to life imprisonment for the first degree murder conviction and nineteen

years for each attem pted first degree m urder conviction. The two nineteen year

terms were ordered to run con currently w ith each o ther but co nsecu tively to the life

sentence. In this appeal, Defendant raises the following two (2) issues:

              I. Did the trial court err in ad mitting Defe ndan t’s
             statement to police without redacting a reference to a
             previo usly suppressed statement between Defendant and
             police officers; and

             II. Did the trial c ourt err in allowing the jury to read a
             transcript of the Defendant’s taped statement as the tape
             was being played?


After a careful review of the record, we affirm the judgment of the trial cour t.



       Defendant, along with two codefendants, was indicted in February 1997, on

charges of first degree premeditated murder and two counts of attempted first

degree murder. They were initially tried before a jury in May 1997, but a mistrial was

declared beca use th e jury w as un able to reach a verdic t. Follow ing the first trial,

Defendant gave tw o state men ts to po lice, the first of wh ich wa s sub sequ ently

suppressed by the trial court. As a result of these sta temen ts, the State moved to

sever Defendant’s trial from that of his codefendants. In February 1998, Defendant

was ag ain tried be fore a jury a nd the jury found h im guilty as charge d.

       Although the sufficiency of the e videnc e is no t challe nged in this appeal, we

will nevertheless o ffer a brief recitation of the facts. Durell West testified that on the

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evening of January 18, 1997 , he wa s driving his twin brothe r Lave ll West and Quincy

Colvin around in his car. Durell West testified that the thre e of them were go ing out,

but stoppe d by Lave ll Wes t’s residen ce to allow him to chang e clothes . As he and

Colvin waited in the car for Lavell West to change clothes, Durell West observed

three vehicles which were not normally seen in the neighborhood. He recognized

the three vehicles as a burgundy Buick belonging to Bob Spive y, a gre en O ldsm obile

98 also belonging to Bob Spivey, and a grey Bonneville belonging to Danny O’Neal

Tho mps on. He knew these two ind ividuals from s choo l.



       After Lavell West returned to the car, the three of them drove away. As they

stopped at the intersection of Ross Road and Highway 91, the three cars seen

earlier, “boxed” th eir vehicle in. T homp son’s gre y Bonn eville was to their left,

Spive y’s’s burgu ndy B uick w as to th eir right, and Spivey’s green Oldsmobile was

behin d them , with its lig hts sh ining in to their vehicle. Dure ll saw fo ur individ uals in

the Bonneville, one of whom was Defendant who was seated in the rear passenger

seat. Durell West then saw gunshots coming from the Bonneville. Both he and

Quincy Colvin were hit by gunshots, which prompted West to duck down and speed

away from the scene. The Bonneville pursued them, with gunshots still being fired.

Quincy Colvin died as a result of gunshot wounds and Durell West suffered gunshot

woun ds as well.



       Dure ll testified that he and his brother had previously had a conflict with

Defendant. Durell West personally had a confrontation with Defendant only days

prior to the s hooting .




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      Lavell West reiterated Durell West’s testimony regardin g the eve nts leading

up to the confrontation at the stop s ign. Lavell West also observed Defendant in the

rear passenger seat of the Bonneville. Upon seeing gunfire coming from the

Bonneville, Lavell West ducked down and did no t obse rve an ything fu rther. L avell

West echoed the testimony con cerning previou s problem s that they had

encou ntered w ith Defen dant.



      Steven Burn ett, also in the B onne ville on the night of the shooting, testified

that he observed Defendant attempting to load a long gun in the back seat of the car

before handing it to a person know n as “B ody R ock” in the front seat of the car. The

State also offered the testimony of Cecil Louis Crowder, Sr., a resident of the area

of the shooting, who stated that he heard several rapid gunshots and then saw two

cars speed ing down the highway.



      Police investigation revealed the presence of eight spent cartridge casings at

the scene. Th e cartridge casin gs were of the 7.62 x 39 m illimeter variety, typically

used in SKS or AKA assault-type rifles. Forensic testing indicated that the cartridge

casings were all fired from the same weapon, and they were consistent with bullet

fragme nts recov ered from the injured shoulde r of Dure ll Wes t.



      The State offered a statement given by Defendant to police on June 26, 1997.

The statement was made in the presence of Defendant’s attorney. The statement

was tape-recorded and it was played for the jury. The jury was a lso furnish ed with

a transcript of the statement as they listened to the audiotape. The officers who

were present during the inte rview c onfirm ed at tria l that the transc ript acc urately

reflected what had been said during the statement. In the statement, Defendant

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confirmed his presence in the Bonne ville during th e shoo ting. He also admitted to

having been the one who loaded the weapon used. He stated that another individual

in the car ac tually shot th e weap on, and that he ha d no idea of what w as going to

occur.



                                        I. Redaction



         In his first issue on appeal, Defendant argues that the trial court erred in failing

to redact a portion of his second stateme nt to police th at contain ed a refe rence to

a previous statement he had made which had been suppressed by the trial court. He

contends that the offending portion of the statem ent imp roperly se rved to im plicate

him in the charge d offense .



         After Defe ndan t’s first trial ended in a mistrial, D efenda nt gave a statem ent to

police on June 19, 1997. Defendant gave a second statement to police a week later,

on June 26, 1997. Prior to his second trial, Defendant filed a motion to suppress

both statem ents. T he trial c ourt gr anted Defe ndan t’s motion with reg ard to the first

statement given on June 19, 1997, on the basis that it violated the principle se t forth

in Minnick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 491, 112 L. Ed. 2d 489

(1990) (when counsel is requested by the accused, interrogation must cease, and

officials may not reinitiate interrogation without counsel present, whether or not the

accused has co nsulte d with h is attorn ey). Th e trial co urt rule d that the second

statement was voluntary and admissible at trial.              The portion of the second

statement Defendant contests reads as follows:

                [Sheriff Rickard to Defendant]: Let me say that, when you
                and I talked the other da y, you did inform me that, that
                indeed, you were in the car that pulled alongside th e

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             W est’s boys car where Quincy Colvin was shot. You
             informed me that you were in the right rear, Danny
             Thompson was driving his vehicle , and there was two
             other people in the car. One was nick named [sic] Body
             Rock, who actually done the shooting from the right front
             and there was an other pa rty in the right - left rear that you
             would not identify until we talked to your attorney, is that
             true?


             [Defendant]: Yea.



      W e find that it was not error for the trial court to refuse to redact the above

challenged portion of th e statem ent. The claimed erroneo us inform ation is contained

within a cha llenge d state men t that wa s ruled by the tr ial court to be admissible.

Defendant adop ted the challe nged portion , in the p resen ce of h is attorney, during

the non-suppressed statement by answering “yea” to the officer’s su mma ry.

Furthermore, we find that the challenged portion does not state anything that is not

included in the unc hallenge d rema inder of the statem ent. Defendant uneq uivoca lly

states in the remainder of the statement that he was in the car on the evening of the

shooting, he de scribe s in de tail the even ts leading up to the shooting, he identifies

cars and other persons, and he states that although he loaded the gun, “Body Rock”

was indeed the person who fired the gun. Therefore, we hold that it was not error

to deny the Defe ndant’s m otion to redact. However, even if it was error, clearly any

error in its admis sion wa s harm less. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P.

52(a). T his issue is without m erit.



                            II. Audio Tape and Transcript



      In his second issue, Defendant argues that the trial court erred in allowing the

jury to read a transcript of his statement to the police while the actual tape of the

                                           -6-
statement was being playe d.       He c onten ds tha t the tran script is not a re liable

reflection of what transpired on the tape recording itself. Accordingly, he asserts that

the jury should not have been permitte d to refer to the tran script, b ut rathe r shou ld

have been permitted only to listen to the tape recording.



      The jury in this case was permitted to view a transcript of Defendant‘s taped

statement as they listened to the tape being played. Officer Mike Kirkpatrick, who

was present during the interview with Defendant, testified that the transcript

accu rately reflected what trans pired during the inte rview.       Specifically, Officer

Kirkpatrick testified as follows: [T]o the best of my knowledge this is basically almost

word for word what was said in the interview between myself, Sheriff Rickard, Ms.

Pillow, [and] Defen dant. Ronnie Rickard, Lauderdale County Sheriff, who was also

present during the interview w ith Defen dant, testified that he ha d reviewe d “mos t”

of the transcript and he also confirmed that the transcript was an accurate reflection

of what transpired during the interview.



      It is well-settled law that tape recordings and compared transcripts are

adm issible and may be presented into evidence by any witness who monitored the

conversations if he or s he wa s in a po sition to identify the declaran t with certainly.

See State v. Coker, 746 S.W.2d 167, 172 (Tenn. 1987) (citation omitted). Therefore,

we find that the transcript w as prop erly authe nticated b y both Officer Kirkpatrick and

Sheriff Rickard.



      After being prope rly auth enticated, a trial judge shou ld offer a cautionary

instruction to the jury instructing the jurors that the transcript is merely to aid them

in consideration of the evide nce of the recordin g itself. See State v. Mosher, 755

                                           -7-
S.W .2d 464, 46 9 (Ten n. Crim. A pp. 198 8); State v. S mith, 656 S.W .2d 882 , 888

(Tenn. Crim. App. 1983). The jury instruction in regard to the transcript in the case

sub judice was as follows:

              [T]he [c]ourt has ruled that if the State desires to play what
              they purport to be a tape recording of conversation or
              conversations, that they ca n pass to you wh at the Sta te
              alleges to be a transcript of that recording. How ever, it’s
              for you to determine the accuracy of the recording itself
              and whether or not the transcription is accu rate; tha t is, if
              you find so meth ing to b e said on the tape th at is not
              correc tly reflected on the transcription, then you are to use
              your judg ment w ith regard to the acc uracy.


The instruction, in our view, does not place the proper emphasis on the content of

the tape rather than the content o f the transcription.         The judge shou ld have

emphasized to the ju ry that if th ey foun d discr epan cies w ith the tra nscrip t and the

tape, that the tape, not the transcript, is the actual evidenc e to cons ider. See, e.g.,

Mosher, 755 S.W .2d at 469 ; Smith , 656 S.W.2d at 888. However, we find in this

case that any error in not being more specific in the jury instruction was harmless.

See Tenn . R. App . P. 36(b); T enn. R . Crim. P . 52(a). Th is issue is w ithout me rit.



       Based on all the for egoing , we affirm th e judgm ent of the tria l court.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. WELLES , Judge




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___________________________________
NORMA McG EE OGLE, Judge




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