A.R.A.P., Rule 45. In Beech v. State, 439 So.2d 1331 (Ala.Cr.App. 1983), the accuracy of the transcribed statement was not challenged and was, in fact, established. Additionally, this Court was "convinced that the jury's verdict would have been the same had the tape recording been admitted into evidence instead of, or in addition to, the written transcription of that recording."
And, when asked by the State at trial if the form represented "a fair and accurate list of the values that you saw on the tags," the loss prevention officer responded, "yes." Cf. Beech v. State, 439 So.2d 1331, 1335 (Ala. Crim. App. 1983) (stating that where transcript of defendant's pre-trial statement was offered at trial instead of tape recording, and defendant did not challenge the accuracy of the transcript, "there is no reason to doubt the authenticity of the transcription, and the trial court will not be held in error for admitting it"). Furthermore, at trial, the State explained that the tagged merchandise was returned to Kohl's.
Here, as the Court of Criminal Appeals indicated, the officer who listened to the confession at the time of the recording testified that the transcript accurately reflected the conversation. Hawkins v. State, 443 So.2d 1312 (Ala.Crim.App. 1983); Beech v. State, 439 So.2d 1331 (Ala.Crim.App. 1983). We find that the Court of Criminal Appeals carefully examined and reviewed this issue and we find no error in its application of the law to the facts at hand.
Wade v. State, 381 So.2d 1057, 1059 (Ala.Cr.App.), cert. denied, 381 So.2d 1062 (Ala. 1980). In Beech v. State, 439 So.2d 1331 (Ala.Cr.App. 1983), this Court held: "Due to the nature of the state's case against the appellant, which was based primarily upon circumstantial evidence, and in comparing this 14 month delay to the delays in Byrd v. State, 421 So.2d 1344 (Ala.Cr.App. 1982), Cofer v. State, 440 So.2d 1116 (Ala.Cr.App. 1983), and Minnifield v. State, 439 So.2d 753 (Ala.Cr.App. 1983), we have concluded that the delay in this instances was not 'presumptively prejudicial,' and that the appellant was not denied his right to a speedy trial.
This court finds that in 1982, aggravating circumstance[s] did not have to be averred in the indictment in order to convict a defendant of a capital offense. Beech v. State, 439 So.2d 1331 (Ala.Crim.App. 1983). A capital indictment need not aver the aggravating circumstances which are to be considered against a defendant in sentencing.
While we note that a prosecution witness stated during the suppression portion of the hearing on McLemore's motions that there were two other felony warrants outstanding against McLemore at the time of the August arrest, there was no evidence presented regarding these warrants, and we can make no determination as to whether McLemore's incarceration was attributable in any way to those charges. Compare Beech v. State, 439 So.2d 1331, 1334 (Ala.Cr.App. 1983). Assuming that McLemore was incarcerated due solely to the charges involved in this case, some prejudice to McLemore from such incarceration is obvious.
Cf. Daniels v. State, 534 So.2d 628 (Ala.Cr.App. 1985), affirmed, 534 So.2d 656 (Ala. 1986), cert. denied, 479 U.S. 1040, 107 S.Ct. 898, 93 L.Ed.2d 850 (1987), affirmed after remand, 534 So.2d 658 (Ala.Cr.App. 1987), affirmed, 534 So.2d 664 (Ala. 1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989); Hill v. State, 455 So.2d 930 (Ala.Cr.App.), affirmed, 455 So.2d 938 (Ala.), cert. denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984); Tomlin v. State, 443 So.2d 47 (Ala.Cr.App. 1979), affirmed, 443 So.2d 59 (Ala. 1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984), affirmed after remand, 516 So.2d 790 (Ala.Cr.App. 1986), affirmed, 516 So.2d 797 (Ala. 1987). See also Beech v. State, 439 So.2d 1331 (Ala.Cr.App. 1983) (life without parole). After performing the review specified in § 13A-5-53, after searching the proceedings for plain error, and after addressing the issues raised on this appeal, we find that the judgment and sentence of the circuit court are due to be affirmed.
Quoted with approval in Hawkins v. State, 443 So.2d 1312 (Ala.Cr.App. 1983). See also Kennedy v. State (Ms. 7 Div. 966, January 31, 1984) (Ala.Cr.App. 1984); Beech v. State, 439 So.2d 1331 (Ala.Cr.App. 1983). Here, the trial judge compared the written transcript with the tape recording and found that it was accurate, "despite some minor errors in spelling . . . as far as the content or context of the statement, the Court finds from the hearing that the transcript and the tape are basically the same.
" This same issue was also addressed in Beech v. State, 439 So.2d 1331 (Ala.Cr.App. 1983), a capital case in which the defendant was sentenced to life without parole. In that case the defendant "did not challenge the accuracy of any specific parts of the statement", although he attempted to explain certain discrepancies between his pretrial statement and his previous testimony at trial.
The best evidence rule has no application in this situation. 23 C.J.S. Criminal Law, Section 833 (c) (1961); Beech v. State, 439 So.2d 1331 (Ala.Cr.App. 1983). Consequently, the judgment of the trial court is affirmed.