Marshall v. State

MURPHY, C.J. In the Circuit Court for Howard County, a jury (Hon. Dennis M. Sweeney, presiding) convicted Tjane Charmeise Marshall, appellant, of first degree murder and use of a handgun in that crime of violence. Appellant does not argue that the State’s evidence, which included incriminating statements he made during a “taped conversation” between himself and one Rashaun Wall, was insufficient to establish that appellant committed those crimes on May 4, 2003. Appellant ⁵⁷⁴ does argue, however, that there are three reasons why he is entitled to a new trial: I. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO ADMIT A TRANSCRIPT OF THE TAPED CONVERSATION BETWEEN THE APPELLANT AND RASHAUN WALL INTO EVIDENCE WHEN THE TRANSCRIPT WAS PREPARED BY ONE OF THE LEAD DETECTIVES IN THE CASE AND WAS REPEATEDLY CHALLENGED BY DEFENSE COUNSEL AS INACCURATE.

II

THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE DEFENSE TO INTRODUCE EVIDENCE WHICH WOULD HAVE SUPPORTED ITS THEORY THAT SOMEONE OTHER THAN THE APPELLANT COMMITTED THE MURDER.

III

THE TRIAL COURT ERRED IN ALLOWING IMPROPER CLOSING ARGUMENT. For the reasons that follow, we shall affirm the judgments of the circuit court. Factual Background In the words of appellant’s brief: At trial, it was the State’s theory that the appellant killed [the victim] ... around 1:00 a.m. on the morning of May 4, 2003 because he didn’t want to have anymore children. Without any physical evidence or eyewitness identification placing the appellant at the scene, the State was left with cell tower activity records that supposedly placed him somewhere in Columbia during that time frame, the testimony of Wall regarding his knowledge and involvement of the crime, and the taped conversation between Wall and the appellant____ Throughout the trial, the defense maintained that he was not the person who committed the murder.

In fact, the appellant elected not to have the lesser included offense of second degree murder, as he maintained that he was not the ⁵⁷⁵ shooter____In support of [appellant’s] theory, the defense elicited testimony from the officers that other suspects were developed early on in the investigation and that two of the individuals both had possible motive and the opportunity to commit the crime. During the trial, (1) over the objection of appellant’s trial counsel, each juror was provided with a copy of the transcript of the “taped conversation” between appellant and Mr. Wall, and (2) the defense was prohibited from introducing items recovered from the victim’s residence that, according to appellant’s trial counsel, should be admitted on the issue of whether the victim was murdered by someone other than appellant. During the State’s argument in rebuttal, appellant’s trial counsel (1) interposed an “improper rebuttal” objection to the prosecutor’s comment that appellant was “up to no good in this area,” (2) moved for a mistrial when the prosecutor stated that the victim “was a member of our community ... she lived here among us,” and (3) requested “a curative instruction” that the jurors not “consider [the residence of appellant or the residence of the victim] in any way ...” Judge Sweeney (1) overruled the objection, (2) denied the motion for mistrial, and (3) refused to deliver a curative instruction. I. In the words of appellant’s brief: The conversation between Wall and the appellant was unquestionably the “centerpiece of the State’s evidence in this case.”...

It is interesting to note, however, that as the State, throughout the closing arguments referred to the defendant’s “own words” as those that will convict him, it never relied on those words alone. While the State did play several portions of the audio taped conversation between Wall and the appellant, it only did so while the corresponding portions of the transcript were being displayed on a 12 by 15 foot screen. The record shows that appellant’s trial counsel argued that the transcript should be excluded on “inaccuracy” ⁵⁷⁶ grounds because it was the most recent of several transcripts, to which the authenticating witness — Detective Daniel Lenick — had made “a number of changes” as a result of his “interpretation” of what he heard on the audiotapes after the tapes had been “enhanced” by FBI technicians. The record also shows, however, that Judge Sweeney delivered the following instructions before the jurors were provided with the transcripts: Now ladies and gentlemen.... what is going to be played to the jury and that is going to be provided does not include the entire conversation that took place on that [day].

And it was, it’s been agreed that as would be common in any conversation, that a lot of the conversation that took place didn’t have anything to do with the matter that you all need to consider. And so the final version excludes [portions of the conversation] that have been either suggested by one side or the other and approved by the Court, to take out of what you’re going to hear anything that doesn’t have to do with the matter that you need to decide. So they are irrelevant, extraneous conversations that you don’t need to hear. You’re hearing the parts that have some relevance to the issues that are before you, because I think you will see some disjointed things.

And the gentlemen [sic] who is here is someone who is going to, a technical person whose [sic] going to aid in with the conduct of this tape. Now ladies and gentlemen you will be getting a copy of the transcript which we’re going to give to each of you. This transcript was prepared as been stated in the testimony given by the detective here and you heard as the defense has pointed out. And, in fact, as the prosecutor has pointed [out] there have been — this transcript was prepared by the detective utilizing the process he utilized.

This transcript will be furnished to you for your guidance as you listen to the tapes or in clarifying portions of the tape which are difficult to hear and/or for the purpose of identifying the speakers on the tape. You should be aware ⁵⁷⁷ that the transcript that is, that has been prepared is an effort to provide that aid but it is important that you understand that you are the ones that decide what you’re hearing on that tape, and don’t be persuaded that what the transcript says is necessarily the case. As you will, I’m sure hear, there is plenty of room on the tape, for differences of opinion, for whether something can be heard, something can’t be heard, and while best efforts may have been made, there remains and perhaps a substantial number of areas where there can be legitimate disagreements that will be focused on or pointed out to you by the defense in this case. And you should keep your focus that the tape is, that you’re hearing is the evidence of that conversation.

That transcript is an aid to you to assist you but cannot be taken as the definitive version of this. The definitive version, quite frankly, ladies and gentlemen, is the version that you all decide after your listening and whatever other process you may engage in through your deliberations as to what was said. If you feel you cannot determine from the tape what particular words were spoken, you should disregard the transcript insofar as that part of it is concerned. If you believe that after listening to the tape, that you cannot make a determination.

So once again the transcripts are aids and guides to you. The recording, the tape recording here will constitute the evidence you should focus on. The record also shows that Judge Sweeney’s final instructions included the following admonitions: Now, Ladies and Gentlemen, in this case during the course of the trial, you’ve listened to a recording, which has been represented to be excerpts of a meeting between the defendant and Rashaun Wall, which was recorded by a device secretly worn by Mr. Wall. You have been provided a transcript that was prepared by the Howard County Police Detective assigned to this case assisted by other police department or prosecution personnel.

And Ladies and ⁵⁷⁸ Gentlemen, the transcript, your personal copy that you may or may not have annotated, will be available for you during deliberations. The transcript has been provided to you as a possible aid to assist you [in] evaluating the recording. Th[e] fact that it’s been provided to you is not to suggest that the transcript necessarily is fully accurate or complete as to the excerpts you have heard. It may or may not be.

You should consider the transcript to the degree and only to the degree that you believe it would assist you in understanding the recording. In considering the degree to rely on this transcript, you should consider all factors that may [a]ffect its reliability. This may include the fact that the transcript was prepared by a person or persons or assisting the prosecution of the defendant, the care with which the transcript was prepared and particularly how faithfully it in fact reflects the actual recording made. If you perceive any variation between the recording you have heard and