James Earl Burke was convicted of burglary, aggravated assault and murder and was sentenced to life imprisonment for the murder and to twenty years each on the other two charges, all to be served consecutively. On motion for new trial, the trial court vacated the sentence for burglary. Burke appeals.
Ronald Manis sаw a car at the summer home of his neighbor, Garah Webber, on April 30, 1980. Since he maintained her yard, Manis approached the house in order to collect the money she owed him. He was told by a man who met him on the porch that she had moved. Because Manis suspected burglary, he returned soon after with his father, Eugene Mаnis. The older Manis, with a pistol in his hand, approached the car parked in the Webber driveway, which two men, one with a crowbar, had entered as the Manises аrrived. Apparently when the driver refused to get out of the car, Manis walked toward the front of it; the driver then opened the door and pointed a gun at Manis’ baсk. Manis wheeled around and emptied his pistol into the car door. The driver killed the older Manis with a shot in the forehead. Meanwhile, the younger Manis had re-enterеd his vehicle. The same man who had shot his father walked over to the car and fired two shots into it, hitting young Manis in the head and in the chest. He survived and at trial identified the gunman аs the defendant.
Later that night, in Whitfield County, two federal undercover agents of the Alcohol, Tobacco and Firearms Bureau of the Treasury Department werе purchasing stolen goods and guns from the defendant and Robert (Bobby) McKenzie as part of a covert operation. At the time, Agent H. W. O’Steen was wearing a concealed transmitter which was being monitored by agent Richard Hampton. After attempting to sell a car with bullet holes in it, the defendant told Agent O’Steen about killing “two dudes” with a .44 pistol at a burglary site because he thought they had obtained his automobile tag number. He related shooting a man, by one shot in the brain, and killing the younger one, who was sitting in his car, with two shots into *125 the car. The agents purchased the .44 pistol among other things. This conversation was recorded and transcribed, and the tape was played to the jury, who followed the conversation on written copies of the transcription.
1. The first enumeration of error challenges the aggravated assаult conviction since the jury returned a general verdict of guilty of murder where both felony murder and malice murder were charged.. On motion for new trial, the trial court vаcated the sentence for burglary because the defendant is entitled to the benefit of the doubt on the jury’s failure to specify felony or malice murder.
Dampier v. State,
2. In his second enumeration, the defendant contends the trial court erred in allowing the jury, over his objection, to read copies of the transcription of the tape while it was played to them. He points out that Agent Hampton had not compared the transcription to the tape recording. Contrary to defendant’s assеrtions on this issue, a proper foundation was laid by the testimony of Agent O’Steen, who was a party to the taped conversations and identified the voices and whо assisted in the transcription and verified its accuracy. With the proper foundations, neither the tape as a whole nor the transcript thereof is inadmissible as contended by the defendant.
The chain of possession of the tape was established by the testimony of Agent Hampton, who taped the broadcast cоnversations between Burke and O’Steen. Hampton also testified that the condition of some tabs he placed on the tapes indicated that the tapеs. had not been altered or erased.
Harris v. State,
Where the proper foundation for admission of a taped conversation is laid and portions of the conversation are inaudible, it is within the discretion of the trial judge to admit the tape. See
State v. Knowles,
The trial court did not err in allowing the jury to read the transcription of the tape as it was played.
3. Defendant complains in enumeration of error three, that the *126 tape impermissibly placed his character in issue and thus should not have been played to the jury. In explaining why he shot the two men, the defendant said he had “built time in the pen before” and “before I’ll go back to it again I’ll kill somebody — ” As was sаid in Dampier v. State, supra at p. 434, “the statements complained of were an integral part of a criminal confession, and such statements are not rendered inadmissible because the language used therein indicates that the accused had committed another and separate offense.”
Head v. State,
4. The trial court acted well within its discretion in sentencing Burke to consecutive sentences with the lifе sentence for murder last,
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and he will not be heard to complain that doing so constitutes an attempt to retain or control parole authority by the cоurt, in light of the regulations of the State Board of Pardons and Paroles. VI Rules and Regulations of the State of Georgia § 475-3-.06 (3);
Hoerner v. State,
5. Defendant enumerates еrror on the refusal of the trial court to make a photostatic copy of the prosecution’s file, examined in camera, part of the record on appeal. He offers.no suggestion whatsoever as to what material could be in the prosecutor’s file which could in any way be exculpatory in this open and shut case. He neither alleges nor shows any prejudice to his case resulting from the trial court’s failure to copy the prosecutor’s file. Although thе trail court, after an in camera inspection, should make the file available for review by an appellate court upon the defendant’s request tо incorporate it into the case record,
Wilson v. State,
6. Although the defendant оbjected to the omission of charges on voluntary and involuntary manslaughter, no written requests for these charges were made by the defense. Therefore, the triаl court did not err in failing to so charge.
State v. Stonaker,
Judgment affirmed.
Notes
The state sought the death рenalty for murder. The jury’s recommendation, however, was to sentence Burke to a “life sentence with no parole.” The trial court entered a life sentence on the jury’s verdict.