This appeal is from appellant’s conviction of murder, armed robbery, and possession of a firearm during commission of a crime. 1 The State presented evidence at trial that appellant formed a friendship with the victim and his wife, engaged in an adulterous affair with the victim’s wife, accompanied the victim to a secluded place in the mountains of North Georgia, shot the victim to death, and disposed of the victim’s truck and other belongings.
1. Although appellant did not raise the issue of the sufficiency of the evidence on this appeal, we have reviewed the record and conclude that the evidence adduced at trial was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of the offenses charged.
Jackson v. Virginia,
2. Prior to appellant’s arrest for the murder, he made self-incriminating statements during a conversation with the victim’s widow, who was wearing recording equipment at the behest of law enforce *336 ment officers. The trial court permitted the jury to listen to the tape and permitted the State to provide the jury with transcripts of the tape.
Appellant argues on appeal that playing the tape was error for two reasons: the sound quality was so poor that the tape was misleading; and he was not warned of his Fifth Amendment rights prior to the conversation. The fact that part of the tape was inaudible did not make it inadmissible. Where a proper foundation is laid for the admission of a taped conversation,
2
and part of the conversation is inaudible, the admission of the evidence is in the trial court’s discretion.
Burke v. State,
As to the Fifth Amendment issue regarding the tape, appellant’s reliance on
State v. Rogers,
Nor do we find merit in his argument that the trial court erred in permitting the jury to have transcripts of the recorded conversation. The circumstances under which the tape was made and the identity of the speakers were undisputed. The trial court carefully instructed the jury that the taped conversation itself was evidence, that the transcript was not evidence, and that the jury was to judge for itself what was said on the tape. With such a foundation being laid and such safeguards utilized, there was no error in permitting use of the transcripts.
Gaston v. State,
3. During its cross-examination of appellant, the State proffered a photograph which appellant identified as depicting him, dressed in camouflage and armed with a weapon, in a particular valley. When appellant challenged the admission of the photograph on the ground of relevancy, the prosecuting attorney stated that it was offered to show that appellant dressed in camouflage and carried weapons in the mountains, the very circumstances under which appellant, according to the State’s theory of the case, .killed the victim. Applying the lib- I
*337
eral standard of relevancy stated in
Williams v. State,
4. During the State’s direct examination of the victim’s widow, she stated that a particular law enforcement officer had shown her appellant’s “police record.” The trial court denied appellant’s motion for mistrial, but admonished the witness, struck the remark from the record, and instructed the jury to disregard it. The denial of appellant’s motion for mistrial is enumerated as error.
The widow’s statement in this case, though inappropriate, was not such as to appear purposeful. All the jury learned from the statement was that appellant had some kind of police record. There was nothing in the statement, however, to show that he had ever been convicted of a crime. The evidence of appellant’s guilt, though largely circumstantial, was strong, and the widow’s reference to appellant’s police record could do little to bolster it. Furthermore, in light of the evidence that appellant used drugs frequently during the periods before and after the crime and that appellant conducted an adulterous affair with the victim’s wife, the remark could have little impact on the jury’s estimate of his character. The trial court’s direction to the witness to avoid the topic and the curative instructions to the jury were direct and clear. Considering those factors and circumstances, we find no abuse of discretion in the trial court’s denial of appellant’s motion for mistrial.
Sabel v. State,
5. Relying on
Walker v. State,
*338 The reason for the reversal in Henderson and in Walker was the exclusion of “evidence of the other person’s motive [which] rendered the ‘inference that he committed the crimes . . . more probable than would have been that inference without the evidence^]’ [cit.]” (id. at 738), and which evidence bore directly on the sole defense in the case. Even accepting that appellant’s theory that one of several other persons may have committed the crime was his sole defense, the evidence he offered was not such as to render more probable the inference that one of them committed the murder. We find no error in the trial court’s exclusion of the evidence.
6. The defense brought to the court’s attention that a local newspaper published an article about the case during the trial which included the information that appellant had been convicted at his first trial. The trial court questioned the jury and ascertained that two jurors had read the article. Questioned outside the presence of the other jurors, the two said they were not swayed by anything in the article, that they understood that the evidence could be different at a retrial, and that they could decide the case on the evidence presented at this trial. Nonetheless, appellant moved for a mistrial and, just before the case was submitted to the jury, asked that the two jurors who read the story be excused and replaced by alternate jurors. The trial court’s refusal of the requested relief is enumerated as error.
When jurors have been exposed to inadmissible material, the trial court must exercise discretion in passing on a motion for mistrial
(Edwards v. State,
7. Appellant’s enumeration of error concerning the trial court’s repetition of a jury instruction requested by the state is patently without merit in that the record plainly shows that the trial court made a mistake during the giving of that instruction, recognized the mistake, and expressly set out to correct the mistake by giving the charge in its correct form. See
Wilcher v. State,
8. In his final enumeration of error, appellant complains of an example the trial court used to illustrate the concept of circumstantial evidence. In essence, the trial court’s example was that if a parent baked a cherry pie and left it to cool, then returned later to find a piece of pie missing and a child in the corner with a red ring around the child’s mouth, the parent might infer that the child had eaten the piece of pie.
We find no reversible error. Appellant has demonstrated no impropriety in the example given by the trial court or in the instructions following it, and we discern nothing in the illustration which might serve to mislead or confuse the jury.
Nobles v. State,
Judgment affirmed.
Notes
The offenses were committed on May 4, 1990. Appellant was indicted on September 10, 1990, for murder, armed robbery, and possession of a firearm during the commission of a crime. He was tried on September 23-30, 1991, resulting in a verdict finding appellant guilty of all three charges. Those convictions were reversed at
Appellant made no assertion to the contrary at trial and makes none on appeal.