### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
STATE OF TENNESSEE v. ANTWONE TERRY.
Direct Appeal from the Circuit Court for Lake County No. 97-CR-7719 R. Lee Moore, Jr., Judge

No. W1999-00355-CCA-R3-CD - Decided April 4, 2000

The defendant/appellant, Antwon e Terry, appeals as of right fro m a conviction for aggravated assault by a Lake County jury. The Lake County Circuit Court imposed a sentence of te

n (10) years, Range III, to run conse

cutively to the cur

rent sentences t

he defendant is p

rese ntly serving in the Department

of Correction. Th

e defendant pre

sents one appellate issue: whether the trial court erred in permitting oral te

stimony as to

the contents of the defendant’s alleged written and tape-recorded statement, where neither

an original nor a c

opy of either was

placed in evidence, over the defendant’s objection.
Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.

L AFFERTY , S R

. J., delivered the opinion of the court, in which T IPTON , J., and W ELLES , J., joined.

C. Michael Rob bins, Memphis, Tennessee, Jim. W. Horner, District Public Defender and H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee, for the appellant, Antwone Terry.
Paul G. Summers, Attorney General & Reporter and Clinton J. Morgan, Counsel for the State, for the appellee, State of Tennessee.

OPINION
Tommy Crawford, a correctional officer for the Northwest Correction Center, testified that he was working on July 23, 1997, at the Academic School. His duties as a security offic er were to control movement betweeneleven (11) to twelve (12) classrooms. Officer Crawford is not armed and his only means of communication is a radio. He stated that there were about two hundred and fifty (250) inmates in the building in which smoking is not permitted. Accordi ng to Offic er Crawford, he was in the process of assigning the inmates to their classrooms the morning of July 23, when he noticed that the defendant was st

anding in the hall a

nd sm oking . At the same time, a telephone was ringing. As Officer Crawford passed by the de fendant to answer the telephone, he told the defendant to

put his cigarette out, to which there was no response by the defendant. Upon his return, the offi

cer again told the

defendant to put h

is cigarett

e out. The de fendant grabbed Officer Crawford, striking him and knocking him down. Officer Crawford stated that he had a cup of coffee in his hand at the time. The officer testified that he had no prior pr oblems with the

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defendant. The officer sustained a broken hip, which required surgery. Presently, Officer Crawford has four (4) six (6) inchpins in his hip due to the injury and cannot return to work. Officer Crawford stated that there were approximately one hundred (1 00) inmates in the hallway when the attack occurred.

Lewis Rodriguez, a cor

rectional offic

er, testified tha

t on July23, 1997, the defendant went to school, returned

about forty (40) m

inutes later, and

told Rodriguez tha

t he needed to talk

to him. The officer testified that they went into the counselor’s office, where the defendant told Rodriguez that he had assaulted Officer Crawford. Officer Rodriguez denied that the defendant told him that he had gotten into a fight after Officer Crawford struck the defendant.

Victor Middlebrook, an in

ternal affairs

investigator for t

he Department of

Corrections, testified that on July 23, 1997 , h e interviewed the victim, Tommy Crawf

ord, in the hospital

. Afterwards,

Mr. Middlebrook interviewed the defendant at North west Correctional Center. Mr. M iddlebrook

testified that he advised the defendant of his rights and that the defendant ag reed t o give a statement. Mr. Middlebrook advised the jury a

s to the content of the defendant’s statement as follows: A nd once he arrived in the school building, he lit a cigarette, and

began to smoke. And at tha t time , Officer Crawford, who was the officer assigned to the sc

h ool building, had walked by him several times. And the last time he walked passed him

, he made the comment to him, “You must be crazy for smoking in here,” and Mr. Terry stated something back to him like, “I’m grown.” And then , Officer Crawford was holding a cup of coffee in his right hand. And then, he to ok his left finger and pointed it in Mr. Terry's face and stated something to him. And at that point, that’s when Mr. Terry hit the officer several times. Once, he stated, he knew at least

to the head, and once to the chest. The o fficer then atte

mpted tostrike back, and when he did, the officer slipped and the coffee spilled and Mr. Terry stated that at that point is when he p ush ed him straight to the floor, and he did not get back up.

Mr. Middlebrook stated that the defendant returned to his pod nervous and scared, and told Officer Rodriguez that he had assaulted an officer. The defendant stated that he was the only one who hit Officer Crawford.

Officer Joel Foster

of the Tennessee Department of Correctionstestified that he was present when Victor Middlebrook interviewed the defendant. He stated that the defendant was advised of his rig hts after

which the defendant admitted he was smoking in the school hallway and that he st ruck Officer Crawford at least once. Officer Foster denied that he had been asleep during the defendant’s interview.

On his own behalf, the defendant testified that he was in the hallway of the school smoking
a cigarette and that Officer Crawford was not paying any attention to him.

He stated that the officer

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was frustrated over the inmates wearing their hats, and tha

t Officer Crawf

ord did walk by him

and then came back and told the defendant to put out the c igare tte. The defendant testified that the officer showed some aggression toward him, put his finger in thedefendant’s face, and touched his head. He stated that he did no t know whe ther the officer was going to strike him or not, so he basical ly reacted and struck him. The defendant denied that he told Officer Rodriguez tha t h e assaulted Officer Crawford; however, he did say to Officer

Rodriguez that he had gotten into a fight after the officer struck him first. Also, the defendant denied that he told Victor Middlebrook t ha t he assaulted t he officer. As to str iking the officer

, the defendant te

stified that he wa

s basically defending himself. LEGAL ANALYSIS

The defendant asse

rts that the State

committed a blatant

violation of Rule 1003, Tennessee Rules of Evidence, and, thus, is entitled to a new trial. Further, the defendant contends that the trial
cou rt erred in permitting the State to use an oral statement in its proof and not introducing the original statement reduced to writing or tape-recorded. The State argues that the tape recording was notthe best evidence of what the defendant said to Victor Middlebrook, but what the defendant actually said to Middlebrook. F urther, i f any error had been made with regard to Middlebrook’s testimony, it was harmless error.

When a party, in a criminal or civil case, offers oral testimony of the contents of writing, in lieu of the writing itsel

f, Tenness ee Rul es of Evidence 10 01 governs Contents

of Writings, Recordings,and Photographs. Rule 1001(3) of the Tennessee Rules of Evidence defines “original.” An “original” of a writing or recording is the writing or recording itself, or any counterpart intended to have the same effect by a person executing or issuing it. Rule 1004 provides that the original is not required, and other evidence of a writing, recording, or photograph is admissible if:

(1) All originals are

lost or destroyed, unless the proponent lost or destroyed them in bad faith; or
(3) At a time when an original was under the control of the party against whom offered, that

party was put on notice by the pleadings or otherwise that the contents would be subje ct of proof at

the hearing but does not produce the original at the hearing.

Als o , Rule 1007 provides that contents of writings, recordings, or photographs may be pr oved by the testimony, depositions, or written admission of the party against whom offe red , without accounting for non-production of the original.

To resolve this appellate issue, we m ust set forth the salient f

acts arising in two

separate hearings, a m otion to suppress and the trial testimony. On January 25, 1999, the trial cour t conducted

a motion to suppress hearing to determine theadmissibility of the defendant’s statement to Victor Middlebrook. At this hearing, Officer Middlebrook testified that he advised the defendant of his rights, by a waiver form , which the defen

dant signed. Offi

cer Middlebrook s

tated that he wrot

e down the defendant’s statement, then gave the original to the defendant for review and corrections

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if necessary. Officer Middlebrook testified that the defendant made several corrections, initialed the same and signed his name at the end of the statement. At the conclusion of the interview, Officer Middlebrook had the defendant read his statemen

t onto a tape. Officer Middlebrook testified that the tape and the original statement were in Nashville, Tennessee, and would be available for the trial. Officer Middlebrook identified a copy of the defendant’s statement over the defendant’s objection that the copy was not the original. The State argued that they were not producing it for the truth of th e s tatement contents but to establish that the defendant signed the statement. A copy of the statement was marked as Exhibit 3 during the hearing. O fficer Middlebrook stated that the defendant did admit in his

statement, “I was the only one who assaulted the officer. No one else was involved.”

Th e de fendant testified that he gave a voluntary statement to Officer Middlebrook, but Exhibit 3 is not the original s

tatement he gave

to the officer. T

he defendant de

nied that he told Officer Middlebrook that he assaulted the officer. The defendant denied making the initials on the copy of the statement but acknowledged his signature at the end of the statement. The defendant stated that the taped version of his statement would contain his denial of assaulting the correctional officer. The trial court denied the motion to suppress the statement on the basis that the proof in the hearing did not match the allegations set forth in the motion.

On February 17, 1999, the defenda nt’ s trial commenced. The record reflects that when Officer Middlebrook was asked to relate to the jury what the defendant said in his statement, the defendant objected on the basis that the tape was the best evidence. The State counter ed that it did notplan to introduce a

ny statement but wou

ld rely on what the

defendant told

Officer Middlebrook. The tape could

not be located. With reference to the missing tape, Officer Middlebrook testified that Nashville could not find it but that he had a copy of the transcript of the tape. Officer Middlebrook stated that a

copy of the transcript was furnished to the defendant. Officer Middlebrook testified that his director was willing to come to court and e

xplain why the tape

was missing. The tra

nscriptionist, who transcribed all t

apes, left the de

partment in

a hostile situation, and it was believed that she might have destroyed some tapes. In cross-examination, Officer Middlebrook was asked:
Q. If the tapes are gon

e, then how do we k

now that these tra

nscriptions are f

rom those tapes other than your word?

A. I guess that’s all you have to go with right now is my word, Sir.

From our review of the facts in this record, we find that the trial court did not commit error in permitting the State to have Officer Middlebrook testify orally as to the defendant’s statement of July 23, 1997. If

the State elects to

have a witness te

stify orally as to th

e contents of a defendant’s confession and/or admission against inter est in l ieu of the actual writing or recor

ding, that is its prerogative. Tenn. R. Evid. 1007. However, this

is predicated

on the fact that th

e defendant has

a copy of the statement, whether it be in writing, a transcript of a tape recording, or a copy of the tape itself. In this case, a tr

anscript of the sta

tement was provide

d to the defendan

t before tr

ial. In addition, the original tape w as lost. T he record reflects that the defendant vigorously cross-examined the State witness at the trial concerning the facts surrounding the takingof the defendant’s statement

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and as to why the tape was missin g. Other than the s

tatement, two correctional officers, Joel Foster and Lewis Rodrigu ez, tes tified that the defendant admitted assaulting a correctional officer. Likewise, the jury had the benefit of the defendant’s testimony that he did not make a statement

that he assaulted a corr

ectional office

r but was engaged

in a fight. The credibility of the witnesses as to this issue was resolved in favor of the State. If there was an y error in permitting the oral statement without the original tape

d recording, it

was, therefore, harmless. T.R.A.P. 36(b); State v. David E. Walton, No. 02C01-9501-CC-00007, 1995 WL 472920, at *3 (Tenn . Crim. App. Aug. 9, 1995), reversed on other grounds, 958 S.W.2d 724 (Tenn. 1997).
The trial court’s judgment is affirmed.