Imes v. State

MURPHY, C.J. In the Circuit Court for Baltimore City, a jury (Hon. Allen L. Schwait, presiding) convicted Marty Dean Imes, appellant, of attempted second degree murder and several related charges. The State’s evidence was sufficient to establish appellant’s guilt. Although appellant does not argue to the contrary, he does argue that he is entitled to a new trial because (1) the jury was permitted to review exhibits not properly admitted into evidence; (2) evidence of his post- Miranda silence was erroneously admitted; and (3) the trial court erroneously denied his mid-trial motions for severance and/or mistrial.

In support of those arguments, appellant presents three questions for our review: ¹⁸⁰ I. Did the trial court err in allowing an exhibit, not moved into evidence during trial, to be reviewed by jurors in the jury room during deliberation?

II

Does the cumulative prejudicial effect of the admission of evidence regarding Appellant’s post-Mt- randa silence merit the award of a new trial?

III

Was the Appellant prejudiced when the trial court erroneously denied his motions for severance, and demand for mistrial related thereto? We answer question I in the affirmative, but hold that this error was harmless. We answer questions II and III in the negative. We shall therefore affirm the judgments of the circuit court.

BACKGROUND Appellant and his co-defendant, Carlos Rodriguez (Rodriguez), were tried together. The jurors were entitled to accept all, part, or none of the State’s evidence, which included the following testimony. Stephen Sirbaugh was shot in his right hand while riding in an automobile being driven by Vasillo “Billy” Harris. The bullet that struck Mr. Sirbaugh was fired by appellant, who was hanging out of the sunroof of an automobile being driven by Rodriguez.

Both cars were traveling on Elliott Street in Baltimore City when the shooting occurred. Rodriguez called a neighborhood friend to testify that Harris had stated to him that Rodriguez was not the driver. At this point, appellant moved for a severance, contending that Rodriguez’s witness implicated appellant. That motion was denied.

Rodriguez was acquitted; appellant was found guilty. Discussion I. Rodriguez consented to a tape recorded interview. During the trial, the jurors listened to the recording of that ¹⁸¹ interview and a typed transcript of the recording was handed to each juror. Although the tape was admitted into evidence, the transcript was not.

Because copies of the transcript were never retrieved from the jury, several jurors took their copies into the jury room. Although this fact was not brought to Judge Schwait’s attention in time for him to take appropriate corrective action, appellant nonetheless argues that the presence of the “unadmitted” evidence in the jury room entitles him to a new trial. There is no merit in that argument. While Maryland Rule 4-326 provides that jurors may take “exhibits which have been admitted into evidence” into the jury room, it is clear that “unadmitted evidence” should not get into the jury room.

When such an error occurs, however, the appellant is not automatically entitled to a new trial. Merritt v. State, 367 Md. 17, 33 , 785 A.2d 756 (2001). The harmless error standard is applicable in this situation. See Merritt, 367 Md. at 33 , 785 A.2d 756 ; Sherman v. State, 288 Md. 636, 641 , 421 A.2d 80 (1980); Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976).

In Merritt, supra, the Court of Appeals ordered a new trial to a murder defendant convicted by a jury whose members were exposed to such inadmissible evidence as (1) statements by the investigating officer in an application for a search warrant, (2) the appellant’s statement about his gun ownership that had been redacted from other admitted testimony, and (3) statements about the appellant’s other criminal propensities. 367 Md. at 34-35 , 785 A.2d 756 . By contrast, in the case at bar, the “unadmitted” evidence that was in the jury room during deliberations had already been (1) presented to the jury by agreement of counsel, and (2) used by appellant’s counsel during cross-examination. Moreover, appellant’s counsel had the opportunity to — but did not — request that the jurors be directed to return their copies of the transcript after the recorded conversation had been played in open court. It is well settled that a properly authenticated transcript of a tape recording is admissible.

Raimondi v. State, 265 Md. 229, 232 , 288 A.2d 882 (1972). In the case at bar, ¹⁸² however, the transcript was made available to assist the jurors. Under these circumstances, appellant was entitled to request a jury instruction to the effect that the transcript was being given to you as an aid or guide to assist you in listening to the tapes [which] are not in and of themselves evidence.... You alone should make your own interpretation of what appears on the tapes based on what you heard.

If you think you heard something differently than appeared on the transcript, then what you heard is controlling. Sand, Siffert, Loughlin, & Reiss, Modem Federal Jury Instructions, § 5-9 (2003). No such instruction was requested. In Vaughn v. U.S., 367 A.2d 1291 (D.C.1977), the District of Columbia Court of Appeals affirmed a drug conviction even though a package of syringes and a chemist’s report had been erroneously sent into the jury room.

The Vaughn Court held that the chemist’s report “only confirmed in writing what the jury already heard in the chemist’s testimony.” Id. at 1295 n. 8. Like Vaughn, 1 the transcript at issue in the case at bar “only confirmed in writing what the jury already heard” in open court. In Dorsey, 2 the Court of Appeals stated: [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such ¹⁸³ error cannot be deemed “harmless” and a reversal is mandated. 276 Md. at 659 , 350 A.2d 665 . See also Merritt, 367 Md. at 31 , 785 A.2d 756 ; Sherman, 288 Md. at 641 , 421 A.2d 80 .

Applying this test to the case at bar, we are persuaded beyond a reasonable doubt that the jurors’ retention of copies of the transcript “in no way influenced the verdict.” II. Appellant argues that the State should not have been permitted to present the following testimony: [Prosecutor]: Detective Viguel, after you went through this form with [appellant], did [appellant] agree to speak with you? [Viguel]: Yes, sir. [Prosecutor]: Did he agree to speak with you on tape? [Viguel:] No, Sir. [Prosecutor]: Can you tell us what the nature of this conversation was with [appellant]? [Appellant’s counsel]: Your honor, T object. [Appellant’s counsel, at a bench conference]: As soon as he asked him do you agree to speak to him on tape, he said no, that is it. He cannot ask that. That is bringing in that he is invoking his privilege. [Appellant’s counsel]: My objection is to what he asked him.

He is saying did he speak to you, agree to speak to you. Yes. Did he agree to make a taped statement? Now that is bringing out that he is not doing something.

You do not have to give a statement. You do not have to give an oral statement. I think it is improper the way it is being done that is all. * * * [The Court, discussing the questioning]: All right, did he agree to speak to you? Then he agreed to give you a taped ¹⁸⁴ statement?

The answer to the first one was yes, and the answer to the second one was no? [Prosecutor]: Yes, sir. [The Court]: All right, I will strike the questions and the answers. [Appellant’s counsel]: Thank you. [The Court]: I will instruct the jury accordingly. [The Court to the jury]: Ladies and gentlemen, let me instruct you then on the last two questions and answers. The next to last question -was did he agree to speak to you. The answer is yes. Please strike the question and the answer from your minds.

And the last question was did he agree to give you a taped statement. The answer was no. Please strike the question and answer from your minds. Next question, please? * * * [Prosecutor]: Sir, can you tell us what the statements were? [Viguel]: Sure.

I asked [appellant] about any possible involvement he may have had in this incident. He denied any involvement. But he further advised that he had heard that the victim had fired from the other vehicle. [The Court]: Sir, you have to keep your voice up a little better than that. Please — ■ [Viguel]: Yes, Your Honor, I apologize. [The Court]: That is all right, go ahead. [Viguel]: When I asked [appellant] how he had come to learn his information, he was evasive and didn’t— [Appellant’s attorney]: Objection.

May we approach? [The Court]: I did not hear what he said. What did he say? [Appellant’s attorney]: That is what I do not know, what he said. [The Court]: All right, come up, please. [Bench conference] [The Court]: Yes? ¹⁸⁵ [Appellant’s attorney]: This is what we spoke about earlier. He is giving his opinion: he became evasive. [The Court]: Oh, he cannot say that. I did not hear that.

Did he say that? [Appellant’s attorney]: Well, that is what he said. He said evasive. [The Court]: All right, I am going to strike that reference to evasive. Please disregard that ladies and gentlemen. Do not give us opinions, sir.

Do not give us conjecture. The record shows that appellant’s counsel requested and received appropriate relief from the trial judge on each occasion at issue. In Ball v. State, 57 Md.App. 338, 470 A.2d 361 (1984), this Court refused to grant a new trial to an appellant who had been granted all the relief that the trial judge was asked to provide: When the appellant [ ] objected to the State’s argument ... the court sustained the objection. Nothing more was requested.

The appellant [ ] did not ask for a curative instruction. The appellant [ ] did not move for a mistrial. It would certainly have been the height of irresponsibility for the trial judge to have declared a mistrial sua aponte, whether the appellant wanted one or not. The same thing occurred when the appellant [ ] objected to what he deemed to be an oblique reference to the fact that he had not taken the stand.

The objection was sustained. In a nutshell, the appellant [ ] got everything he asked for. This is not error. Id. at 358-59 , 470 A.2d 361 .

We shall, however, consider the merits of appellant’s “unfair prejudice” arguments. As to the testimony that appellant refused to give a tape recorded statement, because this refusal was simply “not an invocation of his right to remain silent, the testimony ... regarding this refusal cannot be construed as an infringement upon his constitutional privilege against self-incrimination.” Crosby v. State, 366 Md. 518, 534 , 784 A.2d 1102 (2001). As to the testimony about appellant’s post-Miranda evasiveness, we must determine whether “the damage in the form of prejudice to the defendant transcended the curative effect of the instruc ¹⁸⁶ tion.” Rainville v. State, 328 Md. 398, 408 , 614 A.2d 949 (1992). The Rainville Court examined five factors to determine whether a mistrial was required.

We shall consider whether (1) the reference was repeated; (2) the reference was solicited by counsel or was inadvertent and unresponsive; (3) the evidence was important to the case; (4) the credibility of the witness who made the reference is a crucial issue; and (5) a great deal of other evidence exists. Id. (quoting Guesfeird v. State, 300 Md. 653, 659 , 480 A.2d 800 (1984)). Applying these factors, we conclude as follows: Factors that favor the State.

(1) The reference was not repeated, it was resolved in a bench conference, and a curative instruction was promptly given. 3 (2) The reference seems to have been inadvertently solicited while the prosecutor was introducing the admissible statement and a conversation that the appellant actually had with the investigating officer. (3) The State’s case included the victim’s positive identification of appellant. Factors that favor the appellant. (1) Because the witness was a police investigator, his testimony was important to the case.

(2) The credibility of the witness was an important factor in the case. Based on the above analysis, we conclude that Judge Schwait’s prompt action was sufficient to protect appellant from the danger of unfair prejudice. Under these circumstances, the extreme remedy of a mistrial would not have been appropriate, even if one had been requested. 4 ¹⁸⁷ Appellant argues that the cumulative effect of the testimony at issue warrants reversal. “Essentially, it is our task to determine whether the ‘cumulative effect of the properly admitted evidence so outweighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted, evidence been excluded.’ ” Harmon v. State, 147 Md.App. 452, 468 , 809 A.2d 696 (2002)(quoting Ross v. State, 276 Md. 664, 674 , 350 A.2d 680 (1976)) (emphasis added). Because (1) the complained-of testimony was innocuous and slight, and (2) in both instances, Judge Schwait struck the testimony and provided a curative