OPINION
Appellants were found guilty by a jury of two counts of attempted murder and one count of conspiracy to commit murder. Tennis Kennedy was sentenced to concurrent terms in the Arizona State Prison of not less than two nor more than three years and his brother David was sentenced to concurrent terms in the Arizona Statе Prison of not less than one nor more than three years. They present nine questions for review:
1. Did the admission in evidence of statements obtained from appellants just prior to their formal arrest, where the police intended to arrest them and deliberately refrained from making the formal arrest or advising them оf their Miranda rights in order to obtain such statements, constitute reversible error?
2. Did the trial court commit reversible error by refusing to instruct the jury regarding the voluntariness of certain statements made by appellants as a result of police interrogation?
3. Did the trial court commit reversible error by admitting in evidence certain statemеnts of appellants which were not admissions or confessions, and were not subject to any hearsay exception?
4. Were appellants denied a speedy trial as a result of delay occasioned by the state’s appeal from an order granting appellants’ motions to suppress?
5. Did the court erroneously grant the state’s motion to continue, and erroneously deny appellants’ motion to dismiss based upon a violation of the speedy trial provisions of Rule 8, 17 A.R.C.P.?
6. Did the trial court err in failing to give a complete and accurate instruction on the issue of motive?
7. Did the trial court err in rejecting appellants’ offer of proof?
8. Did the introduction of tape recordings and transcripts thereof, and their eventual submission to the jury accompanied with a misleading jury instruction, constitute reversible error?
9. Did the trial court err in admitting evidence of appellants’ other bad acts?
Most of the relevant facts can be found in our opinion in
State
v.
Kennedy,
The first issue raised by appellants was decided adversely to them in the earlier case,
State v. Kennedy,
supra. Our prior ruling constitutes the law of the case and we see no reason to rеconsider the issue. See
State
v.
Waldrip,
Appellants’ contention on the voluntariness instruction must also fail because the only evidence of “involuntariness” was that which we discussed in
State v. Kennedy,
supra. Since there was no evidence of involuntariness, no instruction was necessary.
State
v.
Sears,
After the “hits” were supposed to have taken plaсe, Detectives Marmion and Bunting went to appellants’ apartment complex. Appellants had arranged for a poolside party as a cover for their involvement in the murders. The detectives, who were “bugged”, told appellants that their partner and his wife had been murdered and asked appеllants if they knew who could have done it. The transcript of this conversation was admitted into evidence over appellants’ objection that it was hearsay. Appellants contend this was error, citing
Government of Virgin Islands v. Lovell,
Appellants contend the trial court erred when it refused to grant their motion to dismiss for lack of a speedy trial. They argue that neither the delay occasioned by the state’s appeal from the motion to suppress nor the delay caused by the granting of a continuance was excludable undеr Rule 8.4, 17 A.R.C.P. We do not agree.
We granted an ex parte stay of the trial court proceedings when the state filed its notice of appeal in
State v. Kennedy,
supra. Appellants made no motion to vacate the stay. Had they done so, the state would have had the opportunity to take the steps delineatеd in
State v. Million,
Under Rule 8.2(d), the trial of this case should have commenced at the latest on January 2, 1978, sixty days after the service of the mandate. 3 The case was set for trial on December 29,1977. On December 28 the trial court heard the state’s motion to continue. We have no transcript of the hearing but the state’s motion to continue contains an affidavit by the deputy county attorney stating that David Kennedy’s counsel had told counsel for the state that he intended to take the case to the United States Supreme Court, that in anticipation of the matter going to the United States Supreme Court no trial preparation was commenced, and that he was newly *26 assigned to the case and had not had time to prepare. Over appellants’ objection the trial court continued the trial to January 11, 1978, finding that extraordinary circumstances existed justifying the continuance, to-wit, the fact that the deputy county attorney was not the one who had begun the case.
On January 6, 1978, David Kennedy, without objection, was granted a continuance because of his attorney’s scheduling conflict and the trial court ordered the trial continued to January 25, with all pending motions to be heard on January 25 and thе trial to begin January 26. The trial did not actually commence until February 1, 1978. January 25, appellants renewed their motion to dismiss for lack of a speedy trial and the motion was denied. They now contend that the trial court erred in denying this motion because the continuance granted to the state was an error and thе continuance granted at David Kennedy’s request was the result of this error. We do not agree with appellants’ contention.
Rule 8.5(b) provides that a continuance will only be granted “upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.” The trial court’s exеrcise of discretion on a motion for continuance will not be disturbed unless there is a clear abuse of discretion.
State
v.
Ortiz,
Appellants offered an instruction on motive which was given by the trial court as modified. Appellants now claim this was error. Although appellants objected to the mоdification they did not specifically state their grounds. Their objection is therefore waived and we shall not consider it.
State v. Toney,
Appellants offered to prove through the testimony of Mr. and Mrs. McClure that Leo Beisler stayed at the McClure house in 1972 and 1973 and while staying there borrowed money from them, ate their food, made a total mess out of the house, smelled, and would not leave when requested. They would have also testified that they had to threaten him to make him leave. Appellants also offered to prove through the testimony of another witness that Leo Beisler stayed at her house in 1976 and made a mess out of the house. Thе trial court rejected these offers of proof. Appellants claim error because this evidence would have tended to corroborate their testimony.
We believe that rejection of the McClures’ testimony was reversible error. The state contends that such testimony was merely cumulative. We dо not agree. There is a difference between evidence which is “corroborative” and evidence which is “cumulative”. Corroborative evidence tends to corroborate or to confirm, whereas cumulative evidence merely augments or tends to establish a point already proved by other evidence.
State v. Turner,
The admissibility of the McClures’ testimony depends upon its relevance.
4
Evidence is relevant if it has any basis in reason to prove a materiаl fact in issue.
Reader v. General Motors Corp.,
A reasonable discretion should be allowed the trial court in determining the relevance and admissibility of evidence.
State v. Turner,
supra;
State v. Wallace,
Because it is likely that this case will be retried, we shall discuss the remaining issues presented by appellants. They contend the trial court erred in denying their motions to supрress the tape recordings of their conversations on April 29 and May 3, 1976 because portions were inaudible. We do not agree. We first note that Tennis Kennedy admitted that the tape of May 3 was an accurate recording of their conversation with the detectives. He also admitted that the tape of April 29 reflected his conversation with Leo Beisler. Furthermore, even where portions of a tape recording are inaudible, the trial court may, in the exercise of its discretion, allow the proponent to introduce it into evidence.
State v. Dante,
The trial court did not err in allowing the jurors to take the transcripts of the tapes into the juryroom. The transcripts, having been admitted into evidence, were like any other tangible evidence. Rule 22.2, 17 A.R.C.P. allows the jurors to take with them, upon retiring for deliberation, such tangible evidence as the court in its discretion shall direct. In
State v. Watkins,
“A signed confession which has been found by the court to be voluntarily given is one of the strongest forms of physical evidence available to the prosecution. We see no reason to distinguish between it and any other physical evidenсe of a concededly damaging nature, such as weapons, instruments of the crime, or photographic evidence which is generally taken to the jury room.”547 P.2d at 820 .
Analogizing to the signed confession in Watkins, we believe the court did not err in allowing the jurors to take the transcripts of the tapes into the juryroom.
Prior to the admission of the tapes into evidence, the trial court advised the jury that certain portions of the tape had been deleted because of legal rulings. Appellants moved for a mistrial because of this instruction. The court denied the motion. Appellants contend the instruction was analogous to advising the jury that the defense had won a motion to suppress, allowing it to speculate that there might be further incriminating evidence. We do not agree. The instruction was given before the tapes were played in open court. The court told the jury it was giving the instruction because there were gaps in the tapes and it did not want them to think that somebоdy had unlawfully tampered with them. The court further instructed that they were not to draw any conclusions as to the authenticity of the tapes because of the gaps nor to be concerned with the reason certain portions had been deleted. We believe the court’s instruction was appropriate, correct, and not erroneous.
Appellants’ final claim of error is directed to allowing testimony that on May 3, 1976 they removed from their storage shed a number of stolen calculators and a sawed-off shotgun. They contend that this was evidence of prior bad acts and was inadmissible. We do not agree. Evidenсe of other crimes may be offered for the
*28
purpose of establishing intent.
State v. Tostado,
Reversed.
Notes
. Appellants and Beisler discussed several ways to do the killing. They settled finally on shooting the partner and his wife at close range. Appellants provided Beisler with a “safe gun” and ammunition.
. Appellants were out on bond during the pend-ency of State of Kennedy, supra.
. December 31, 1977, the sixtieth day, was a Saturday.
. See 1 Wigmore on Evidence (3rd Ed.) Sec. 39 for a discussion of “collateral” evidence.