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State v. D'Antonio10/26/2005
s a "strain" to understand but admitted both the tape and transcript. We also have taken opportunity to listen to the tape and found it of poor quality, but not inaudible. The trial court took the further precaution upon admitting the evidence to instruct the jury as follows:
THE COURT: Okay. Let me mention to you, Members of the Jury, that you're going to be provided with transcripts that purports to be a transcription of the tape that you're going to be listening to. The actual evidence is the tape, which you'll be hearing. And - and frankly, the tape, some of it is difficult to hear. You have to, really, kind of strain to hear the tape. And I would say to you that, if there are differences from your listening to the tape, from what you're reading on the transcript, then you would rely on what you hear on the tape. The transcript is provided to you to aid you in listening to it, to read along with it, and so forth. And I might also add in- later, in the trial, in your deliberations, you'll be able to take this tape to the deliberation room if you need to listen to it better. This room, as the people have mentioned, kind of - the acoustics are not that great. And if you needed to hear it, again, you could. But I'm emphasizing that the tape is the evidence, not the transcript.
We conclude that the trial court properly admitted the evidence and gave an appropriate instruction that cautioned against any undue influence from the transcript.
Aiding and Abetting Instruction
The defendant's final issue attributes error to the trial court in instructing the jury on the theory of aiding and abetting. The defendant contends that this instruction effectively lessened the State's burden of proof to establish his identity as the perpetrator of the murder.
A defendant has a right to a correct and complete charge of the law, so that each issue of fact raised by the evidence will be submitted on proper instructions. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). In criminal cases, a trial court has a duty to fully instruct the jury on the general principles of law relevant to the issues raised by the evidence and the principles which are "closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." State v. Elder, 982 S.W.2d 871, 876 (Tenn. Crim. App. 1998).
Herein, the trial court acceded to the State's request for a jury instruction on aiding and abetting. The defendant submits that, although the State's theory was that the defendant was the shooter, the aiding and abetting charge lessened the State's burden of proof in establishing the defendant as the actual gunman beyond a reasonable doubt. The State counters that because a positive identification of the gunman was not possible, the instruction was necessary to show a shared intent to murder would be equally culpable. Furthermore, the trial court gave an instruction that required the proof of the identity of the perpetrator beyond a reasonable doubt, whether as principal or an aider or abettor.
Upon review of the entire record and the respective instructions in this regard, we agree with the State and find no error concerning the aiding and abetting instruction.
Conclusion
Having found no reversible error, we hereby affirm the conviction of the defendant for first degree premeditated murder.
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