State of Tennessee v. Earley Story

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 12, 2002 Session Heard at Memphis

STATE OF TENNESSEE v. EARLEY STORY

Direct Appeal from the Criminal Court for Shelby County

No. 97-08560 John P. Colton, Jr., Judge

No. W2001-00529-CCA-R3-CD - Filed September 13, 2002

The appellant, Earley Story, was convicted in the Shelby County Criminal Court of one count of

selling not less than one-half ounce nor more than ten pounds of marijuana, a Class E felony. The

appellant was sentenced to one year of incarceration in the Shelby County Jail, which sentence was

immediately probated. On appeal, the appellant raises the following issues for our review: (1)

whether the trial court erred in failing to conduct a hearing on the appellant’s pro se motion alleging

a failure to afford him a speedy trial; (2) whether the trial court wrongly forced the appellant to trial

with unwanted counsel, which counsel were appointed without any evidence that the appellant was

unable to employ counsel of his choosing; and (3) whether the trial court erred in admitting

purported transcripts of tape recordings. Upon review of the record and the parties’ briefs, we affirm

the judgment of the trial court.

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

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

ALAN E. GLENN, J., joined.

John E. Herbison, Nashville, Tennessee (on appeal), and Michael J. Gatlin and Rebecca Coffee,

Memphis, Tennessee (at trial), for the appellant, Earley Story.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Rhea Clift, Dan Woody and Tom Hoover,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In July 1997, the appellant was indicted by the Shelby County Grand Jury on three

counts of selling not less than one-half ounce (14.175 grams) nor more than ten pounds (4535 grams)

of marijuana. The indictment alleged that the offenses occurred on January 9, 1997, January 15,

1997, and January 22, 1997. The appellant was subsequently arrested and a trial was commenced

on December 8, 1997. A jury in the Shelby County Criminal Court acquitted the appellant of the

offenses alleged to have been committed on January 9, 1997, and January 15, 1997, but found the

appellant guilty of the sale of marijuana on January 22, 1997.

At trial, the State’s witnesses, Detective Carl Harrison, undercover narcotics agent

Jeffrey Butler, and cooperating individual Alfredo Shaw, related that, on three occasions in January

1997, Agent Butler and Shaw went to 1349 Standridge in Memphis to purchase marijuana from the

appellant. On January 9, 1997, the first of the three encounters, Agent Butler and Shaw met with

Detective Harrison at a Church’s Chicken Restaurant where Detective Harrison equipped Agent

Butler with a microcassette recorder and five hundred dollars ($500) with which to make the

controlled buy. Agent Butler and Shaw proceeded to 1349 Standridge where they saw the appellant

in front of the residence. Shaw exited the undercover vehicle and approached the appellant. He

introduced the appellant to Agent Butler and asked the appellant if they could obtain one-half of a

pound of marijuana for five hundred dollars ($500). The appellant instructed Agent Butler and Shaw

to “make the block.” Complying with the request, the pair circled the block and then returned to

1349 Standridge. Upon their return to the residence, the appellant gave them marijuana in a plastic

freezer bag in exchange for five hundred dollars ($500).

Following the transaction, Agent Butler and Shaw met with Detective Harrison and

gave the detective the recorder and the bag containing the controlled substance. Detective Harrison

weighed the substance and found it to weigh 149.0 grams. Friderica Saharovici tested the substance

at the University of Tennessee Toxicology Laboratory and determined that the substance was

marijuana.1

Detective Harrison, Agent Butler, and Shaw testified at trial that, on January 15, 1997,

they met at Church’s Chicken to outfit Agent Butler with a microcassette recorder and to provide

Agent Butler with five hundred dollars ($500) to make the drug purchase. Agent Butler and Shaw

returned to 1349 Standridge where they witnessed the appellant standing across the street at a

residence located on Fairfax. At the Standridge location, Agent Butler and Shaw were approached

by “Little Red,” also known as Etienne Harmon.2 Harmon entered the undercover vehicle and

instructed Agent Butler and Shaw to drive around to Fairfax if they wanted to make a deal. The

three men proceeded to 1329 Fairfax where the appellant was waiting. Harmon got out of the

vehicle and informed the appellant that they wanted another half-pound bag of marijuana. Agent

Butler witnessed Harmon give the appellant five hundred dollars ($500) in exchange for the

marijuana. Harmon immediately transferred the marijuana to Agent Butler. Agent Butler and Shaw

left the residence, met Detective Harrison, and again gave Detective Harrison the contraband and the

recorder. Detective Harrison determined that the substance weighed 206.07 grams and Saharovici

confirmed that the substance was marijuana. As previously noted, the appellant was acquitted on

charges relating to these two alleged transactions.

1

At trial, Saharovici was d eemed “q ualified as an expert in to xicolo gy.”

2

Harmon was deceased at the time o f trial.

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The State presented testimony regarding a third arranged buy on January 22, 1997.

Detective Harrison, Agent Butler, and Shaw repeated their established procedure and met at

Church’s Chicken where Detective Harrison supplied Agent Butler with a microcassette recorder and

eight hundred and fifty dollars ($850). Agent Butler and Shaw again returned to the residence at

1349 Standridge. When they approached the residence, the appellant and Dante Dale instructed the

pair to proceed to Mok’s Grocery for the transaction. The two men did so, and waited a few minutes

for the appellant and Dale to arrive. Shortly thereafter, the appellant and Dale, driving a “grayish-

brown Cadillac,” met Agent Butler and Shaw behind Mok’s Grocery. Dale was driving the vehicle

and the appellant was in the front passenger seat. Agent Butler and Shaw got into the rear passenger

compartment of the vehicle. Agent Butler gave the appellant eight hundred and fifty dollars ($850)

for the purchase of one pound of marijuana. The appellant gave the packaged marijuana to Dale,

who in turn passed the marijuana to Shaw. Agent Butler and Shaw returned to the undercover

vehicle. They immediately proceeded to a meeting with Detective Harrison and relinquished

possession of the recorder and the marijuana. Detective Harrison testified that the substance

weighed 307.0 grams. Saharovici again attested that the substance “contain[ed]

tetrahydrocannabinol which is the active ingredient in marijuana.”

At trial, the appellant denied involvement in any of the transactions. The appellant

testified that, at the time of the alleged January 9, 1997, transaction, he was at his sister’s house

picking up a prescription for his mother. The appellant’s sister supported the appellant’s version of

events. The appellant further contended that, at the time of the January 15, 1997, drug deal, he was

at home with his family, either in bed or working on his car. Both the appellant’s wife and daughter

corroborated the appellant’s alibi. Additionally, the appellant contended that he was home at the

time of the January 22, 1997, transaction. The appellant’s wife maintained that she did not recall

the appellant leaving home on January 22, 1997. Moreover, the appellant asserted that, prior to the

commencement of the instant legal proceedings, he had never met Etienne Harmon or Dante Dale.

As a result of his conviction for the January 22, 1997, transaction, the trial court

imposed a sentence of incarceration for one year in the Shelby County Jail, but suspended the

sentence and placed the appellant on probation. On appeal, the appellant argues that the trial court

should have held a hearing on the appellant’s pro se motion demanding a speedy trial, the trial court

erred in allowing into evidence transcripts of the drug sales, and he alleges that “[t]he trial court

wrongly forced [him] to trial with unwanted counsel, which counsel were appointed without any

evidence that the [appellant] was unable to employ counsel of his choosing.” We shall first address

the appellant’s complaints regarding the trial court’s appointment of counsel.

II. Analysis

A. Appointment of Counsel

Regarding his complaint concerning counsel, the appellant argues, “In the case sub

judice, the trial court relieved a retained attorney of the [appellant’s] choosing and sua sponte

appointed counsel. . . . The record does not show that [the appellant] at any time sought appointment

of counsel, nor that he claimed to be unable to afford retained counsel.”

-3-

Events surrounding the appointment of counsel resulted from a motion filed by the

appellant requesting that he be incarcerated until his trial. On July 19, 1999, a hearing was held on

the appellant’s motion. At the hearing, the appellant was represented by retained attorney Jeffrey

Rosenblum, “the second lawyer, perhaps even the third, who has been on this jacket.”3 The appellant

testified in support of his request to have the trial court incarcerate him until the time of trial. While

the appellant was on the witness stand, Rosenblum asked the appellant if his request for incarceration

was against the advice of appellant’s counsel, to which question the appellant replied, “You’re not

my lawyer.” The following colloquy then occurred:

Counsel: Are you firing me then?

Appellant: Correct.

Counsel: Okay.

Court: Are you appointed or–

Counsel: No, Your Honor. He’s hired me.

The trial court advised the appellant that by firing his attorney he was causing

additional delays in his case. The appellant replied, “I’ll represent myself.” In response to the

appellant’s complaints regarding the inadequacies of counsel, the trial court stated:

Well, it appears that we’ve had at least two lawyers involved in this

case representing Mr. Story, and the case is set for trial. . . . We’ve

got to get somebody to represent Mr. Story. I can’t force you to do

this Mr. Rosenblum because you are a private lawyer in the case.

And of course, the Court will not do that. The Court is going to allow

you under the statements made by Earley Story to be – to withdraw[]

from this case.

The trial court considered appointing a public defender to represent the appellant, but declined such

appointment upon being informed that the appellant had a pending civil lawsuit in which the public

defender’s office was involved. The trial court then inquired as to the appellant’s employment

status. In response, the appellant stated that he was employed. Without further discussion, the court

informed the appellant that it would appoint “Mr. Guy” to represent the appellant. The following

day, on July 20, 1999, the trial court entered an order appointing Michael J. Gatlin as the appellant’s

3

The record reflects that, on April 30, 1998, the court allowed Stephen R. Leffler to withdraw as counsel for

the appellant. On M arch 22 , 1999 , the court allowed Steve T emple to w ithdraw as cou nsel and Jeff Rosenblum was

substituted as counsel for the ap pellant. On July 19, 1999, the trial court granted the appellant’s motion to relieve

Rosenblum as counsel of record. As a result of Rosenblum’s withdrawal, Michael J. Gatlin was appointed as the

app ellant’s attorney on July 20, 1999. Additionally, on September 21, 1999, the court appointed Rebecca Coffee as co-

counsel for the app ellant.

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counsel, noting that “the Court ascertained that the Defendant is financially unable to employ

counsel.”4 The appellant issued no complaint as to the trial court’s appointment of counsel.

On November 5, 1999, the appellant filed a pro se motion to dismiss Gatlin, alleging

ineffective assistance.5 Subsequently, on November 8 and November 9, 1999, a hearing was held.

Gatlin “urge[d] the Court . . . to adopt Mr. Story’s motion.” The appellant stated that he did not wish

to represent himself, but explained that he did not want Gatlin to continue to represent him. As a

result of these comments, the trial court began to question the appellant about his reasons for not

hiring another attorney. The appellant contended, “I haven’t had a chance to hire, I’ve been trying

to. . . . I could hire a lawyer in Memphis. . . .” The appellant specifically complained that “[b]ecause

of the political nature [of my case], I had four lawyers and for some strange reason they fail to work

aggressively on my behalf.”6 The appellant also alleged that Gatlin could not represent him because

of a conflict. The trial court dismissed the appellant’s allegation as unfounded and stated:

I’ve heard the defendant, Mr. Story, say that he does want

representation. And, he’s had four lawyers before. And, it’s [m]y

thought that he’s trying to further, he’s saying that we have delayed

the case. This Court finds that he has delay[ed] the case by causing

these lawyers so many problems that they don’t want to represent

him. And, he’s had private lawyers and he’s had appointed lawyers.

And, we’re set to go to trial December the 6th.

....

I don’t care whether he cooperates with [counsel] or not. [Gatlin,]

[y]ou’re going to have to do the best you can. I don’t care whether he

wants you to represent him. He doesn’t want these other four people

to represent him either. And, we’re going to trial on December the 6th

whether he cooperates with you or not.

....

Mr. Story is not going to be, [m]y history with Mr. Story is that he’s

not going to be satisfied with anybody representing him. And, he’s

going to, he’s going to be represented by you and we’re going to trial

on December the 6th whether he likes it or not.

Again, the appellant’s sole complaint appears to be that the trial court appointed

counsel to represent him without first conducting an evidentiary hearing to determine his indigency.

Initially, we note that the United States Constitution and the Tennessee Constitution both guarantee

an accused the right to be represented by counsel during a criminal trial. See U.S. Const. amend. VI;

4

No order was entered appointing “Mr. Guy” as the appellant’s attorney, nor does the record contain any

further reference to “M r. Guy.”

5

The record also reflects that the appellant made an oral motion to dismiss Gatlin on the Friday before the

hearing.

6

The appellant was employed as a Shelby County Jailer prior to his arrest in this case.

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Tenn. Const. art. I, § 9. Additionally, “[t]he right to counsel includes the qualified right to the

counsel of one’s choice.” State v. Parrott, 919 S.W.2d 60, 61 (Tenn. Crim. App. 1995). In the

instant case, the appellant did not request the appointment of counsel. However, he repeatedly

maintained that he did not wish to proceed pro se, but he had not “had the chance” to hire counsel

after firing his previous attorneys. Again, following the appellant’s firing of Rosenblum, the court

appointed counsel without conducting a prior indigency hearing. In connection with this issue, we

note that a trial court has the “inherent power to control the administration of justice.” United States

v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988); see also United States v. Dunegan, 251 F.3d 477, 478

(3rd Cir. 2001). Moreover, the trial court has wide discretion in matters regarding the appointment

of counsel; thus, the trial court’s actions will not be overturned on appeal absent a clear abuse of that

discretion. State v. Rubio, 746 S.W.2d 732, 737 (Tenn. Crim. App. 1987).

When a criminal defendant alleges the inability to afford counsel and requests the

appointment of counsel, the court “shall upon inquiry make a finding as to the indigency of the party

pursuant to the provisions of Tenn. Code Ann. § 40-14-202. The court shall enter an order appointing

counsel upon a finding that the defendant is indigent.” Tenn. Sup. Ct. R. 13 § 1(e). However, Rule

13 also states that “[t]he failure of any court to follow the provisions of this rule shall not constitute

grounds for relief from a judgment of conviction or sentence.” Id. at (j). Tennessee Code Annotated

section 40-14-202(a) (1997) provides:

In all felony cases, if the accused is not represented by counsel, and

the court determines by the manner provided in subsection (b) that the

accused is an indigent person who has not competently waived the

right to counsel, the court shall appoint to represent the accused either

the public defender . . . or . . . a competent attorney licensed in this

state.

Additionally, Tennessee Code Annotated section 40-14-202(b) instructs that

[w]henever an accused informs the court that such accused is

financially unable to obtain the assistance of counsel, it is the duty of

the court to conduct a full and complete hearing as to the financial

ability of the accused to obtain the assistance of counsel, and,

thereafter, make a finding as to the indigency of the accused.7

Thus, prior to appointing counsel for the appellant due to the appellant’s indigency, the trial court

should have first held a hearing to establish the appellant’s indigency.

Regardless, the court’s error in failing to hold an indigency hearing prior to

appointing counsel for the appellant was harmless. Tenn. R. Crim. P. 52(a). Notably, the trial court

found that the appellant was deliberately undermining the legal process by repeatedly “firing” his

attorneys. “‘[A] defendant may not through a deliberate process of discharging retained or assigned

7

Interestingly, our courts have concluded that Tennessee Code Annotated section 40-2015, the precursor statute

to T ennessee C ode Anno tated section 4 0-14 -202 , applied only to the appo intment of counse l for indigent defenda nts,

not to the ap pointment o f counsel for no n-indige nt defendants. See Glasgow v. State, 461 S.W .2d 25, 25-26 (T enn.

1970); see also State v. Armes, 673 S.W .2d 1 74, 1 77 (Tenn. Crim. Ap p. 19 84); State v. Dubrock, 649 S.W.2d 602, 605

(Tenn. Crim. App. 198 3).

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counsel whenever his case is called for trial subvert sound judicial administration by such delaying

tactics.’” State v. Chadwick, 450 S.W.2d 568, 570 (Tenn. 1970) (quoting United States ex rel. Davis

v. McMann, 386 F.2d. 611, 618 (2nd Cir. 1967)). In other words,

“the right to retain counsel of one’s own choice is not absolute. The

right ‘cannot be insisted upon in a manner that will obstruct an

orderly procedure in courts of justice, and deprive such courts of the

exercise of their inherent powers to control the same.’”

State v. Zyla, 628 S.W.2d 39, 41 (Tenn. Crim. App. 1981) (quoting United States v. Burton, 584

F.2d 485, 489 (D.C. Cir. 1978)). Furthermore, our supreme court has recently observed:

[W]hen discussing a non-indigent defendant who fired his attorney in

open court and thereafter repeatedly protested about going to trial

without a lawyer, we recognized that even “[t]hough a defendant has

a right to select his own counsel if he acts expeditiously to do so . . .

he may not use this right to play a ‘cat and mouse’ game with the

court. . . .’” The idea that the right to counsel may not be used to

manipulate or toy with the judicial system applies equally to indigent

and non-indigent defendants.

State v. Carruthers, 35 S.W.3d 516, 549 (Tenn. 2000), cert. denied, 533 U.S. 953, 121 S. Ct. 2600

(2001) (citations omitted). In a similar vein, the United States Court of Appeals for the Second

Circuit has suggested, “[i]f after a reasonable period a defendant is unable to retain counsel he should

be assigned counsel by the court unless he clearly and unequivocally indicates that he wishes to

proceed without any counsel.” Davis, 386 F.2d. at 620 (citations omitted). In the instant case, the

trial court appointed counsel to assist the appellant after he repeatedly denied that he wished to

represent himself.

We also observe that the appellant had many opportunities to object to the trial court’s

appointment of counsel and failed to do so until the conclusion of trial. Tenn. R. App. P. 36(a)

(“Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an

error or who failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.”). Although the appellant complained before trial concerning the alleged

ineffective representation of Gatlin, he made no protest regarding the trial court’s appointment of

counsel in general. Additionally, the appellant failed to secure additional counsel after firing

Rosenblum even though he had ample opportunities to do so. The appellant also had the opportunity

to retain counsel between his November 9, 1999, motion and the time of trial. This court has

asserted that “the failure to retain counsel by a defendant who can afford an attorney is properly

regarded as a waiver of the right to the assistance of counsel.” Dubrock, 649 S.W.2d at 606; see also

Davis, 386 F.2d. at 618 (“[T]he right to have counsel of one’s own choice may be waived by a

defendant who fails to retain counsel within a reasonable time when he is financially able to do so.”).

Furthermore, at no time in these proceedings has the appellant alleged that he was not indigent at the

time counsel was appointed. To the contrary, the appellant filed a motion on November 9, 1999,

requesting the transcription of audio tapes in the possession of the State and alleging that the State

should pay for the transcription because “Defendant is indigent.” Moreover, the record clearly

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reflects that counsel were zealous advocates on the appellant’s behalf, and succeeded in achieving

acquittals for the appellant on two of the three counts against him. This issue is without merit.

B. Speedy Trial

The appellant also complains that the trial court erred in dismissing his pro se motion

for speedy trial without conducting an evidentiary hearing. Initially, we note that the appellant filed

pro se motions demanding a speedy trial, while he was represented by counsel. It is well established

that

[an appellant] does not have a constitutional right under the State or

Federal Constitution to participate In propria persona in his own

defense and simultaneously to be represented by participating

counsel.

....

The choice is his; he represents himself or he is represented–one or

the other, but not both.

State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); see also State v. Muse, 637 S.W.2d 468, 470

(Tenn. Crim. App. 1982). Thus, the trial court did not err in refusing to hold an evidentiary hearing

on the speedy trial issue. Cf. State v. Jackie F. Curry, No. E2000-02475-CCA-R3-CD, 2001 Tenn.

Crim. App. LEXIS 586, at **19-20 (Knoxville, Aug. 2, 2001), perm. to appeal denied, (Tenn. 2001).

Nevertheless, appellant’s argument is without merit. We note that “[t]he right to a

speedy trial arises under the Sixth Amendment to the Constitution of the United States made

applicable to the State by the Fourteenth Amendment . . . and Article 1, § 9 of the Constitution of

Tennessee.” State v. Bishop, 493 S.W.2d 81, 83 (Tenn. 1973). In analyzing the speedy trial issue,

four factors are important: “the length of the delay, the reason for the delay, the defendant’s assertion

of the right, and the prejudice suffered by the defendant from the delay.” State v. Utley, 956 S.W.2d

489, 492 (Tenn. 1997) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)).

“The right to a speedy trial attaches at the time of arrest or indictment, whichever

comes first, and continues until the date of the trial.” State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim.

App. 1997). A delay of one year or longer will trigger an inquiry into a speedy trial violation. Id.

The appellant asserts that he was arrested on January 31, 1997, but his trial was not commenced until

December 8, 1999. The record contains no verification of the appellant’s arrest date. However, the

record does reflect that the indictments were returned against the appellant on August 7, 1997. Thus,

the delay between indictment and trial was slightly more than two years. In Vickers, this court found

that a delay of three years and nine months was not a presumptive speedy trial violation. Id.

Additionally, our supreme court has previously concluded that a “total delay of a little over two years

is not per se extreme and is not such a length of delay that from this fact alone we would presume

prejudice.” Bishop, 493 S.W.2d at 85. Accordingly, we must examine the other factors involved.

The second factor, the reason for delay, generally falls into one of four categories:

(1) intentional delay to gain a tactical advantage over the defense or

delay designed to harass the defendant; (2) bureaucratic indifference

-8-

or negligence; (3) delay necessary to the fair and effective prosecution

of the case; and (4) delay caused, or acquiesced in, by the defense.

State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996) (footnotes omitted). In the instant case, the

record is somewhat unclear as to the reason(s) for the delay because the trial court entered a summary

order denying relief. However, we find compelling the trial court’s finding that “[the appellant] has

delay[ed] the case by causing these lawyers so many problems that they don’t want to represent

him.” We agree with the trial court’s conclusion that many, if not all, of the delays were the fault

of the appellant. This factor weighs against the appellant.

While the appellant claims that he asserted his right to a speedy trial on numerous

occasions, the record contains only two motions demanding his right to a speedy trial, which motions

were filed in early November 1999. However, we also note that, on July 19, 1999, when the

appellant was still represented by retained counsel Rosenblum, counsel informed the trial court that

“[the case] has never been continued at the request of Mr. Story. He has always wanted his trial.”

Thus, the appellant did assert his right to a speedy trial, and soon thereafter, a trial was held. This

factor weighs in favor of the appellant. See Vickers, 985 S.W.2d at 6.

Finally, we must determine whether the appellant was prejudiced by the delay. Wood,

924 S.W.2d at 348. Based upon the record before us, we cannot conclude that the appellant suffered

any appreciable prejudice by the delay in prosecution. Significantly, the appellant was acquitted on

two of the three charges against him. Additionally, the appellant was not incarcerated while awaiting

trial. See Bishop, 493 S.W.2d at 85. After evaluating the applicable factors, we conclude that

appellant is not entitled to relief on this issue.

C. Transcripts

The appellant also complains that the trial court erred by admitting transcripts of the

audio-taped drug transactions because there was no “proper foundation” laid and the trial court did

not issue “clarifying or limiting instruction(s) as to the jury’s proper consideration of such

transcripts.”8 Specifically regarding the lack of foundation, the appellant contends that “[no] witness

testified that he had compared the transcripts with the tapes to insure the accuracy of the transcripts.”

It is well settled that “the decision to admit or exclude evidence is left to the discretion of the trial

judge and his decision will not be disturbed unless it is arbitrarily exercised.” Taylor v. State, 814

S.W.2d 374, 377 (Tenn. Crim. App. 1991).

Initially, we note that the appellant raised no objection to the admission of the audio

tapes of the three incidents. In fact, in numerous pretrial hearings, the appellant was adamant that

the audio tapes themselves be admitted into evidence. The State introduced the audio tapes at trial

through Agent Butler, who attested to the accuracy of the audio tapes and carefully explained the

events transpiring on the tapes as they were played for the jury. Agent Butler explained that, while

8

W hile we address this issue in terms of the admission of all of the transcripts, the appellant focuses much of

his complaint on the transcript of the January 22, 1997 , transaction, the sole charge on which the appellant was convicted.

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the appellant’s voice was possibly on the tape documenting the January 9, 1997, transaction, the

appellant did not speak during the January 15, 1997, or January 22, 1997, transactions.

Later, the appellant cross-examined Detective Harrison regarding the contents of the

audio tapes. Detective Harrison responded that he could not remember the exact contents of the

audio tapes; however, the transcripts of the audio tapes would accurately reflect the events. The

appellant repeatedly asked Detective Harrison if a copy of the transcripts could be obtained.

Specifically, the appellant asked, “So if we took a break later on, you’d be able to get ahold of that

transcript so we could all see it?” The detective replied that obtaining the transcripts “[s]houldn’t

be any problem” because they should be on file with the Shelby County Sheriff’s Department.

Following a short break, the State, on redirect examination, attempted to introduce the transcripts

of the tapes through Detective Harrison. The appellant objected to the transcripts on the basis that

they were not supplied during discovery. The appellant made this objection, and only this objection,

to the admission of each of the three transcripts. The trial court overruled the objection, finding that

the defense had opened the door to the introduction of the transcripts. As the appellant’s objection

to the admission of the transcripts is based upon different grounds on appeal, we must conclude that

the appellant has waived this issue because “a defendant may not object to the introduction of

evidence on one ground, abandon this ground, and assert a new basis or ground for the objection in

this Court.” State v. Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988).

As his second complaint regarding the transcripts, the appellant argues that the trial

court erred in failing to give a limiting instruction following the admission of the transcripts.

Notably, at no time did the appellant request that a limiting instruction be given regarding the use

of the transcripts.9 Because of the appellant’s failure to request such an instruction, the appellant has

also waived this argument. See Tenn. R. App. P. 3(e); State v. William Lewis Houston, No. M1999-

01430-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 936, at *23 (Nashville, Dec. 7, 2000), perm.

to appeal denied, (Tenn. 2001).

Despite waiver, the appellant asks this court to address the issues regarding the

transcripts as plain error. Tenn. R. Crim. P. 52(b). Generally, this court has cautioned that the only

errors that should be addressed as plain error pursuant to Rule 52(b) of the Tennessee Rules of

Criminal Procedure are errors “that ‘seriously affect the fairness, integrity or public reputation of

judicial proceedings’ when necessary to prevent a miscarriage of justice.” State v. Adkisson, 899

S.W.2d 626, 639-40 (Tenn. Crim. App. 1994) (footnotes omitted). In other words, such error must

have “had an unfair prejudicial impact which undermined the fundamental fairness of the trial.” Id.

at 642. In analyzing plain error, this court considers the following factors:

“(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached; (c)

a substantial right of the accused must have been adversely affected;

9

Specifically, there was no contemporaneo us request for a limiting instruction nor was there a request for a

limiting instruction prior to the trial court’s issuing the jury instructions. The record reflects that no limiting instruction

was given.

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(d) the accused did not waive the issue for tactical reasons; and (e)

consideration of the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-42).

Notably, “the presence of all five factors must be established by the record before this Court will

recognize the existence of plain error, and complete consideration of all the factors is not necessary

when it is clear from the record that at least one of the factors cannot be established.” Smith, 24

S.W.3d at 283. Moreover, “‘[a]n error ‘may be so plain as to be reviewable under . . . Rule 52(b),

yet the error may be harmless and therefore not justify a reversal.’” Adkisson, 899 S.W.2d at 642

(footnote omitted).

Concerning the admission of the transcripts, we note that

“tape recordings and compared transcripts are admissible and may be

presented in evidence by any witness who was present during their

recording or who monitored the conversations, if he was so situated

and circumstanced that he was in a position to identify the declarant

with certainty, and provided his testimony in whole, or in part,

comports with the other rules of evidence.”

State v. Reed, 845 S.W.2d 234, 238 (Tenn. Crim. App. 1992) (quoting State v. Coker, 746 S.W.2d

167, 172 (Tenn. 1987)); see also State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980). On redirect

examination, the State asked Detective Harrison how the transcripts were prepared. Detective

Harrison replied,

We listened to the original tape. We set Alfredo Shaw and Agent

Butler down, and they listened to the original tapes and got with the

other agent or secretary, and they began to go through the tape and

type down what was said on the tapes.

Detective Harrison then proceeded to read the contents of the transcripts to the jury.

The following colloquy occurred on recross-examination:

Appellant: We, sitting here, don’t have any way of knowing what

you’ve got in front of you is actually what this impartial transcription

person would have written down, do we?

Detective Harrison: You could play the tape.

Appellant: If we play the tape, that’s actually a reflection of what

happened; correct?

Detective Harrison: That’s correct.

Detective Harrison further asserted that he was present for the transcription of all three audio tapes.

Agent Butler earlier testified that the audio tapes accurately reflected the events in question.

However, although Detective Harrison monitored the transactions, he did not testify that he

personally compared the audio tapes to the transcripts to verify their accuracy. Accordingly, because

the State failed to properly lay a foundation for the admission of the evidence, the trial court should

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not have allowed the transcripts into evidence. See State v. Cameron, 909 S.W.2d 836, 850 (Tenn.

Crim. App. 1995); State v. Robert Bacon, No. 03C01-9608-CR-00308, 1998 Tenn. Crim. App.

LEXIS 31, at *33 (Knoxville, Jan. 8, 1998).

Moreover, “[i]t is well-settled in Tennessee that a transcript of a tape may be given

to a jury where the jury is instructed that the tape, and not the transcript is the actual evidence.” State

v. Barnard, 899 S.W.2d 617, 623-24 (Tenn. Crim. App. 1994); see also State v. Bawana M. Carter,

No. 02C01-9808-CC-00253, 1999 Tenn. Crim. App. LEXIS 808, at *10 (Jackson, Aug. 9, 1999)

(stating that “a trial judge should offer a cautionary instruction to the jury instructing the jurors that

the transcript is merely to aid them in consideration of the evidence of the recording itself”). We

note that the appellant is correct that, upon the admission of the transcripts, the better practice was

for the trial court to instruct the jury that the audio tapes themselves were the evidence to be

considered, not the transcripts.10

However, we conclude that, although the trial court erred, the errors were harmless.

The transcripts contained no information which was not related at trial, in detail, by Agent Butler

and Shaw. The transcript of the January 22, 1997, transaction did not attribute any speech to the

appellant. Moreover, the appellant thoroughly cross-examined Detective Harrison and was able to

elicit from the witness that the audio tapes themselves more accurately reflected the events in

question. This issue is without merit.

III. Conclusion

Finding no reversible error, we affirm the judgment of the trial court.

___________________________________

NORMA McGEE OGLE, JUDGE

10

For example, this court previously approved of the following cautionary instruction in State v. Mosher, 755

S.W .2d 464, 469 (Tenn. Crim. App. 198 8):

“[T]he tape is the evid ence , the transcript is an aid for you in understanding the

tape. But the evidence itself is the tape and no t the paper. So if there's any

difference, you will in all events rely on the . . . tape itself.”

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