IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01396-COA ANTHONY RAY ABRAM A/K/A ANTHONY ABRAM APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/26/2016 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM W HICH APPEALED: MARION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROBERT G. W HITACRE JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 10/16/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Anthony Ray Abram appeals his convictions of being an accessory af ter t h e f act to f irst-degree m

urder a nd f

irst-degree arson. W e f

ind Abram ’s a ssignm ent s o f e r r or are procedurally

barred and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On Septem

b er 1, 2014, Ry an Cooper’s burned body w as f ound in t he back of his

sm oldering F ord Ranger on East Reservoir Road in Marion County

. Following a n autopsy ,

a m edical exam iner determ ined t hat Cooper died f rom a gunshot wound t o the head. A deputy

- state f

i re m arshal who exam ined Cooper’s truck determ i ned that the f ire that hadseverely dam aged Cooper’s v ehicle was not started accident a l l y a n d was due to hum an

involvem e nt. ¶3. Jerry Page was subsequently i ndicted on the charges of f irst-degree m

ur d e r , firstdegree arson, and sim

ple assault on a law enf

orcem ent of

f icer. Abram , Page’s brother, was indicted o n t he charges of being an accessory af ter the f act to f irst-degree m

u rder, and f

irstdegree arson. ¶4. A t t r i a l , the State relied o n the testim ony of t hree witnesses: Alex Garner (Garner), Alex Abram

(Alex), and David Holm e s. 1 ¶5. Garner was the only witness that directly observed the shooting. Garner testif ied that

a t the tim e of the shooting, he was l iving in his m other’s van p arked n ear Jam es Kelly ’ s house on Expose Road. On the n ight o f August 31, 2 014, Cooper picked up Garner, and they drove up the road to Alex’s house. W hen they arrived, Cooper jum ped o ut o f his truck and “got into a conf

r ontation” with Abram , Page, Alex, and Holm es. Cooper then drove away without Garner. Garner began to w alk down the road b ack toward Kelly ’s house, but Cooper picked him up and returned to Alex’s house. From his t ruck, Cooper s cream ed, “[ Y]’all m ust [ not] know m e. I’m a LK,” and “Y’all don’t scare m e[ .]” Garner testif ied that people began shoot i n g a t C ooper’s truck, but he could not see whom they were because he had his head down. ¶6. Garner f

urther testif

i ed t hat he and Cooper drove to Kelly ’s house, p arked in the

1 H o lm es an d P ag e are A lex ’s co u sin s. 2driveway , and got out of t he t ruck. Shortly thereaf ter, Abram , Page, Alex, and Holm es drove
up in a truck, p arked nearby , and jum ped out holding guns. Garner testif ied t hat Abram ran
up to Cooper and put a gun to Coo p er’s head but then l owered the gun. Then, Page approached Cooper and s hot him i n the m iddle of his f orehead a t point-blank range. Cooper f el l to t he ground. Garner saw Alex and Holm es start walking a way . Abram picked up Cooper’s body f

rom t he d riveway and put it in the back of Cooper’s truck. Garner testif ied that Page threatened to k ill him a nd his m other i f G arner told any one about the shooting. Abram then drove of

f in Cooper’s truck, with Page f ollowing in his own truck. ¶7. According to G arner, about f orty

- f ive m inutes later, Page returned and again threatened Garner not to tell any one about the shooting. Garner said that he f eared f or his lif e, so he helped P age cover up the shooting by giving Page gasoline to burn Cooper’s blood of f Kelly ’s driveway

. Garner said he also shoveled dirt over Cooper’s blood. ¶8. Garner testif

ied that he was charged with being an accessory af ter t he f act to m urder and hindering t he prosecution. He agreed to p lead guilty to b oth charges and to testif y at trial in e xchange f

o r a t w e n t y -y ear sentence, w i th s ixteen y ears suspended, and f our y ears to

serve. ¶9. Alex’s and Holm es’s t estim onies slightly d if f ered f rom Garner’s testim ony . Both Alex and Holm e s testif

ied that on the n ight of the shooting, they attended a b a r b e q u e t h at Alex hosted at his trailer on E xpose Road. W hen guests began to leave the barbeque, Alex and Holm es walked down the street to Kelly ’s house.

3¶10. Alex testif ied that as he and Holm e s a pproached Kelly ’s house, h e saw f our m en standing in t he y ard: Cooper, Garner, Abram , and Page. Page’s f ull-size white truck and a

sm aller w hite truck were parked in the driveway

. C ooper appeared to be arguing with Page, who held a handgun. A lex s aid he and Holm es began to run back to h is t r a i l e r when they heard a gun cock. As they ran, a gunshot rang o ut. A lex then saw the two white trucks pass by , but he could not identif y the drivers. The State was allowed to ref resh Alex’s m em ory by play ing an audio recording of a pretrial statem ent he gave to law enf o rcem ent. The jurors listened t o the r e c ording a nd were each provided a transcript of the recorded statem ent; however, neither the recording nor t he transcript were adm i tted i nto e vidence, and the transcripts were collected f rom t he jurors im m ediately a f ter the audio r ecording was play ed. Alex subsequently testif

ied that h e rem em

bered who was driving the w hite trucks

— Page was driving his own f

ull-size truck, and Abram w a s driving Cooper’s sm aller truck. Later that night, as Alex was c leaning up h is y ard, Page and Abram stopped by in Page’s t ruck. Alex never again saw Cooper’s truck. ¶11. Holm es’s testim ony was m ostly c onsistent with Alex’s. But Holm es testif ied that he did not see Abram talking with Cooper, Page, a n d Garner in Kelly ’s y ard, a nd he could not

see which of the m e n held a gun. Holm es explained that Cooper’s sma l l w h i t e t ruck was parked in f

ront Page’s f

ull-size t ruck in Kelly ’ s d r i v e w a y . H olm es did not testif y about seeing the trucks pass by af ter heari n g a gunshot. Holm es said that af ter he returned to Alex’s trailer, he m et up with his girlf riend, and they went hom e.

4¶12. Hilda Patton was t he o nly witness to testif y f or Abram

. She said that Abram was her f riend and lived at her house in August 2 014. P atton testif ied t hat on t he day of the shooting, Abram w as a t h er residence f rom 8:00 a.m . until she went to b ed b etween 11 p.m . and 1 a.m . Patton said Abram went to bed bef ore h er and c ooked breakf ast the next m orning. Patton testif i ed that she disclosed t his inf o rm ation to Abram ’s attorney about two weeks bef ore trial. She acknowledged that she had not told any one else about this i nf orm ation d

uring the two
y ears that Abram

had been in jail pending trial. ¶13. Following a joint trial, P age and Abram were convict e d a s charged. Abram was sentenced to concurrent t erm s of twenty y ears in the custody of the Mississippi D epartm ent of Corrections f

or being a n accessory af

ter the f act to f irst-degree m

urder and three y ears f

or f irst-degree arson. A bram f iled a m otion f

or a judgm ent notwithstanding the ve r d i c t or, alternatively , a new trial, which the trial court denied. Abram n ow appeals a n d argues: (1) the trial court erroneously allowed the State to play Alex’s entire recorded statem ent to the jury and p rovided each juror with a transcript of the statem e nt, and (2) the trial c ourt f ailed to properly

instruct the jury

. ANALYSIS
I. Alex’s Recorded Pretrial Statement ¶14. On Septem

ber 10, 2 014, Alex volun t a r i ly g ave a recorded statem ent to law enf orcem ent regarding the night of the shooting. I n h is statem ent, A lex explained that a s he

ran back to his trailer, he saw the two white trucks that had been parked at Kelly ’s house pass

5by , one af

ter the other. According to Alex, Abram passed b y f i rst in Cooper’s truck, and
P a g e f o l l owed i n his f

ull-size truck. But on direct exam ination at trial, Alex testif i e d h e “didn’t get a chance to see who w as driving.” The Stat e sought to ref resh Alex’s m em ory with his prior-recorded s t a t e me n t , a n d the trial court r uled that p art of the audio recording could be play ed f

or t he lim ited purpose of ref reshing A lex’s m em ory . The def ense objected claim ing that the State was “cherry picking” the case and “working r eal hard to elicit testim o ny f

a vorable to t hem selves with great ef f ort.” T he trial court responded that should Abram wish to play the e ntirety of the recording f

or the jury , he could do so in his case-inchief

. ¶15. The State then showed Alex a transcript page o f his prior-recorded statem e nt. Alex responded that he “didn’t know [ he] wrote a statem ent” a n d that he was not f a m iliar with the transcribed version of his recorded statem ent. The trial court r uled that because Alex did not recognize the transcript, t he entirety of Alex’s recorded statem ent would be play ed. The trial

court allowed the State to provide each juror with a transcript of the recording t o c o m pare with the audio recording as it play e d. Page’s counsel objected to the t ranscripts, arguing that the audio recording was the best e vidence. The trial c o urt ruled that the transcri p t s w o u l d be taken f rom t he jurors af

ter the r ecording was play ed, and the jury would not be perm itted to take the transcripts into the jury room . ¶16. Af ter the audio recording was play ed f or the jury , t he transcripts were collected. The
State then m oved to adm it the a udio recording into e vidence. Page’s counsel objected to the

6recording as past evidence of Alex’s testim ony . The trial court held that the recording would

be m arked f

o r i d e n t i f ication purposes only , stating that neither t he recording nor the transcript would be adm i tted into evidence or allowed in the jury room . ¶17. A f t e r the audio recording of Alex’s pretrial statem ent was play ed, the State a s k e d Alex w hether he rem em

bered m aking the s tatem ent. A l ex r esponded t hat h e did. Further, Al e x testif

ied that the statem e nt he gave t o law enf orcem ent was the truth. Alex said he

rem em b ered that when the two t rucks p assed by , Abram was driving the s m all white truck, and Page was driving his larger truck. ¶18. On appeal, A bram argues the tr ial court erred in allowing the S tate to play Alex’s entire recorded s tatem e nt and in p roviding each j uror with a transcript. 2 W e f ind this issue is procedurally

barred. ¶19. The record shows Abram ’s counsel f ailed t o c ontem

poraneously object t o t h e adm ission of t h e a u dio recording in evidence (i.e., play i ng o f the audio recording in the
presence of t he jury ). Abram ’s counsel a rgued, not that it was error t o allow the jury to listen

to the audio recording, but that the entire audio r ecording s hould be play ed f or the jury , not just certain p ortions, a s the State suggested. “[ F]ailure to m ake a contem poraneous objection waives an issue f

or purposes of appeal.” Boyd v. State , 175 So. 3d 1, 4 (¶13) (Miss. 2015).

2 In P a g e v. S t

a te , 2 0 1 6

- K A -0 1 4 6 4 -C O A , 2 0 1 8 WL 3 0 3 0 9 2 3 , at * 5 -* 6 ( ¶ ¶ 2 3

- 2 8 ) (M iss. C t

. A p p . Ju n e 1 9 , 2 0 1 8 ), w e ad d ressed th is issu e ap p ealed b y A b ram ’s co -d ef en d an t, P ag e. We h eld th at P ag e w aiv ed a n y o b j ectio n to th e p lay in g o f th e reco rd ed in terv iew an d th at it w as n o t an ab u s e o f d iscretio n to allo w th e j u ro rs to h av e tran s crip t s. T h i s reaso n i n g ap p lies h ere. 7Because Abram f ailed to object, this issue is procedurally barred f rom consideration on appeal. ¶20. Although this i ssue is procedura l ly barred, we f ind f urther d iscussion regarding Mississippi Rule of Evidence 612 is necessary . A trial will take place long af ter the event giving rise to the cause of action t hat occurred. 4 Jef f r ey Jackson, Mary

Miller, & Donald
Cam pbell, Ency clopedia of

Mississippi Law, Evidence § 33:59 (2d ed. 2016). As a result,

a w itness m ay need assistance in ref reshing his r ecollection. I d

. Pursuant to R u l e 6 1 2 , counsel m ay ref

r e s h a w i t n e ss’s m em ory b y providing t he witness inf orm ation to use. Id

. Rule 612(a)(1) allows a witness to “use[ ] a writing, recording, o r o bject to r ef resh [ his]

m em ory . . . while testif

y ing.” M.R.E. 612(a)(1). “The only r equirem ent bef o re an item

is used to ref

resh a witness’s m em ory is that the witness have no present m em ory o f the event.” Ency clopedia of M i ssissippi La w , E v i d e n c e at § 33:59 (citing Ervin v. State , 136 So. 3d 1053, 1059 (Miss. 2014)). In Ervin , the suprem e court specif ically ruled: Mississippi Rule o f Evidence 612 allows a witness to use docum e nts to ref resh his m em ory while testi f

y i n g . [ M.R.E.] 612. A docum e n t used to ref r esh a witness’s recollection need not be adm issible under t he Mississippi Rules of Evidence. H

unt v. State , 687 So. 2 d 1154, 1162 (Miss.1996). “ The only requirem ent is that the w itness have no p r e s e n t m e m ory of the e v ent.” Id. W h en def ense counsel asked Stevenson “ Do y ou have a recollection of that? ” he responded “ No.” Thus, the State’s argum ent that the def ense could not u se t h ese docum ents to r ef

r e sh Stevenson’s m em ory on cross- e x a m i n a t i o n b e c a u s e they were not adm issible is without m erit.
Ervin , 136 So. 3d at 1059 (¶17). ¶21. On d i r e c t e xam ination, Alex was a sked if he saw who was driving the trucks and

8answered that he “didn’t get a chance to see who was driving.” Alex d id n ot t estif y that he could n ot rem em

ber who was d

riving. His testim ony m ay n ot be c onstrued to conclude that he had “no present m em ory of the ev e n t

. ” A l ex sim ply s tated that he “ didn’t get a chance

to see who was driving.” N evertheless, the State asked Alex to review the transcript of his prior statem ent; Alex did and said he could not recognize it. The State then asked that Alex be a llowed to hear the audio recording of the p rior statem ent. The trial c ourt allowed the jury

to hear the entire audio r ecording and to see the transcript of Alex’s prior statem e n t. The trial court did not “adm it” either into evidence. 3 ¶22. Under Rule 612, when a docum ent or recording is o f f ered t o a witness to r ef

resh the witness’s recollection, the party t hat of f ers the d ocum ent or recording to ref resh the witness’s recollection (i.e., t he producing party ) is not allowed to produce the docum ent to the jury or
to play the audio recording to the jury

. In other words, under Rule 612, t he producing party

m ay not publish the docum ent or recording to the jury by reading the docum ent, providing the jury w ith a t ranscript, or l etting the j ury listen to the recording. I n s t e a d , u n d er Rule 612(b), “[ a]n adverse party is entitled to h ave the writing [ or] recording

. . . produced at the hearing, t o inspect it, to cross-exam ine the witness about it, a nd t o introduce in evidence any portion that relates t o t he witness’s testim ony .” Thus, Rule 612 gives only “an adverse party ”

or the nonproducing party the right to ask that the writing o r recording be published to the

3 N o rm ally , a w r itin g o r reco rd in g m u st b e ad m itted i n to ev id en ce u n d er th e M ississip p i R u les o f E v id en c e b ef o re th e j u r y is allo w ed to see t h e w ritin g o r h ear th e reco rd in g . 9jury

.

¶23. As f

urther guidance, W

i lliams on Mississippi Evidence sets f o rth the appropriate steps f or ref reshing a witness’s m em ory under Rule 612: (1) Exam ining c ounsel m ust dem onstrate to the satisf a ction of the court t hat the witness cannot rem e m ber a certain f

a ct. Then, with the court’s perm ission, counsel m ay approach the witness and show him som e item that w ill trigge r his recollection of the f

orgotten f

acts. That item may be a w r iting such as notes, letters, a d iary , a book or a hospital record, or it m ay b e an object such as a photograph, a piece of jewelry o r a weapon, or it may be a recording of a voice, a s peech o r an unusual sound that will be p layed t o the witness

. The nature of the item is im m ate r i al; the critical issue i s whether it triggers the witness’s recollection o f the f acts so that he now m ay r elate t hem to the jury

. (2) W he n the witness, af

ter reading, h andling, s m elling o r hearing the item , af f irm s that h e n ow rem e m

bers t h e f a c t s , he m

ust return the item to counsel and testif y solely f rom his ref

reshed m e m ory . This ref

r eshed m em ory , not the docum ent, object or recording, is now the source of his testim ony . (3) At this tim e, opposing counsel has a n a b solute right to inspect t he item , to use it in cross-exam ining the witness and to introduce all or relevant portions of it into e vidence. It is im portant t o rem em

ber that only the o

p p o n ent can offer the item into evidence

. Parham W illiam s, W illiam s on Mississippi Evidence, W itnesses § 6.22[ 1 ] (2016) (em phasis added). ¶24. At this point in the t rial, the State did not h ave the right t o assert Rule 612 as authority

to g i v e A l e x e i t h e r a copy of t he transcript of his p rior s tatem ent or have him listen to the audio recording of that statem ent. There was nothing a b out Alex’s testim ony that could or needed to be “r e f

r e s h ed” under Rule 612. There was certainly no basis under Rule 612 to allow the producing party to publish the transcript and recording to the jury

.

1 0¶25. It is clear that the State w anted to use the transcript o r recording of t he prior statem ent

to im peach Alex’s testim o ny t hat he “didn’t get a chance to see who was d riving [ the trucks].” In his prior s tatem e nt, Alex said that he saw Abram pass by f irst in Cooper’s truck, and Page f

ollowed in his f

ull-size truck. The S t a t e w a n t e d to show the jury that Alex’s

courtroom testim ony was i n conf lict and inconsistent with a statem ent Alex had previously

m ade outside the courtroom

. The State w anted t o use Alex’s prior statem ent to im peach his trial testim ony . There is a way to do that under the Mississippi Rules o f Evidence, but it is not Rule 612. ¶26. The M ississippi Rules of E vidence restrict how parties m a y use prior i n consistent

s t a t e ments. Mississippi Rule of Evidence 6 13 im poses a procedural requirem ent on t h i s process. Rule 613, titled “W itness’s Prior Statem e n t,” provides: (a) Showing or Disclosing the S t atem ent During Exam ination. W hen exam ining a witness about the witness’s prior statem ent, a party need n ot show it or disclose its contents to the witness. But the party m u st, on request, show it or disclose its contents to an adverse party ’s attorney

. (b) Extrinsic Evidence of a Prior Inconsistent Statem ent. Extrinsic evidence of a witness’s prior inconsistent statem ent is adm issible only if the witness is given a n opportunity to explain or deny the s tatem ent and an adverse party is given an o p portunity t o exam ine the witness a b out it, or if justice s o requires. This subdivision (b) d o e s n o t apply to an opposing party ’s statem e nt under Rule 801(d)(2). ¶27. To im

peach a witness, under Rule 6 13, the lawy er m a y choose to u se a prior statem ent
to show the jury a n inconsistency in the witness’s testim ony . The producing party m ay not sim ply introduce t he statem ent i nto evidence (i.e., publish it to t he jury ). If the S tate (as the

1 1producing party ) w ants to introduce the transcript or the audio r ecording in evidence, it is

considered t o be extrinsic evidence, and the State m ust com p ly with Rule 613(b). H e r e, neither the transcript nor the audio recording were of f ered under Rule 613(b). ¶28. As previously noted, A bram did not object t o the subm ission of the ent i r e audio recording to the jury

. Instead, in r esponse to the State’s r equest to play only a portion of the audio recording, Abram objected and asked that the entire re c o r d i n g b e play ed. Because Abram f ailed to object, he is procedurally barred f rom now claim ing that the trial court erred in allowing the State to play Alex’s entire recorded statem ent. ¶29. Notwithstanding the p rocedural bar, w e f ind no plain error in the subm ission of the audio recording. “ For the plain-error doctrine to apply , there m ust have b een an error that resulted i n a m anif

est m iscarriage of justice or seriously af f ects the f airness, integrity , or public reputation of j udicial proceedings.” Johnson v. State , 1 55 So

. 3d 733, 738-39 (¶8) (Miss. 2014). A lthough t he correct proc e d u re was not f ollowed to ref

resh a witness’s recollection under Rule 612, we cannot say that such error resulted in a m anif est m i scarriage of justice or s eriously af

f ected the f

airness, integrity , or public reputation of the judicia l proceeding because Abram ’s counsel requested that Alex’s e ntire s tatem ent be play ed to the jury . Accordingly , we af f irm

. II. Jury Instruction ¶30. During trial, Abram prof f ered Jury Instruction 6 which read:
You have heard evidence that witnesses f or the Prosecution m ade statem ents prior to trial that m ay be i nconsistent with [ ] their testim o ny at t his trial. If y ou
1 2believe t hat an i n c o n s i stent statem ent was m ade, y ou m ay consider the

inconsistency in e valuating the b elie v a b ility of the w itness’ testim ony . Y ou m ay not, however, consider the prior statem e nt as evidence o f the truth of the m atters contained in that prior statem ent. The t rial judge announced that the instruction would be given. But the instruction itself was
stam ped “ref used.” On appeal, Abram contends the trial judge erred by m istakenly stam ping the instruction as ref

used and not giving the instruction to the jury

. ¶31. Af ter reviewing the record, we are u nable to determ ine whether or n ot Jury Instruction
6 was read to the jury

. Yet, even assum ing the instruction was not given, we f ind no error. Abram did not alert the t ri a l court that i t f ailed to read his instruction. “W e cannot hold a trial court in error on a m atter not presented to i t f or a d ecision.” Ronk v. State , 172 So. 3d 1112, 1139 (¶68) (Miss. 2015). This issue is without m erit.
CONCLUSION ¶32. For the above reasons, we af f irm the circuit court’s judgm e nt. ¶33. AFFIRMED. BARNES, FAIR, WILSON, GREENLEE A ND TINDELL , J J . , CONCUR. IRVING, P.J., C ONCURS IN PART AND IN THE R ESULT WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., CARLTON AND WESTBROOKS, J J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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