Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs May 20, 2014
Appeal from the Criminal Court for Johnson County No. 5066 Robert E. Cupp, Judge.
The Defendant, Morris Marsh, was convicted by a jury of first degree premeditated murder and sentenced to life imprisonment with the possibility of parole. See Tenn. Code Ann. § 39- 13-202. In this appeal as of right, the Defendant contends (1) that the trial court erred in denying the Defendant’s motion to suppress his statement given to an investigator; (2) that the trial court erred in denying the Defendant’s motion to dismiss the presentment against him; (3) that the trial court erred in denying the Defendant’s pro se motion to remove his appointed trial counsel; (4) that the State failed to disclose an incriminating statement made by the Defendant to a witness; (5) that the trial court erred in admitting audio recordings of prison phone calls made by the Defendant; (6) that the trial court erred in admitting an autopsy photograph of the victim; (7) that the trial court erred in determining that a witness was unavailable and allowing the witness’s preliminary hearing testimony to be presented at trial; (8) that the evidence was insufficient to sustain the Defendant’s conviction; and (9) that the State committed prosecutorial misconduct during its closing argument.  Following our review, we affirm the judgment of the trial court.
Jeffery C. Kelly, District Public Defender (at trial); William Donaldson, Assistant Public Defender (at trial); and Steve McEwen, Mountain City, Tennessee (on appeal), for the appellant, Morris Marsh.
Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Anthony Wade Clark, District Attorney General; Dennis Dwayne Brooks and Matthew Edward Roark, Assistant District Attorneys General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, J., and Jeffrey S. Bivins, Sp.J., joined.
D. KELLY THOMAS, JR., JUDGE
This case arises from the murder of an inmate, Roshad Siler, at the Northeast Correctional Complex (NECX) on September 1, 2006. The Defendant was tried for the murder along with two co-defendants, Sean Jordan and Brian Roberson,  in December 2011. At trial, Jonathan Franklin testified that he was a correctional officer working at NECX on September 1, 2006. Around 3:30 p.m., Officer Franklin was in a cage in the center of Unit 12 when he heard the sound of "sneaker[s] squeaking and shuffling on the concrete." Officer Franklin looked up to see the victim, the Defendant, and two other inmates. Officer Franklin testified that the Defendant was "facing directly towards" the victim and that the two other inmates were facing each other "in kind of a boxed formation" with "their hands out to their sides."
Officer Franklin testified that the victim "was moving backwards, kind of back peddling away from the others." Eventually, the victim started to "run backwards, " away from the Defendant and the other inmates. According to Officer Franklin, the Defendant "was swinging both hands pretty wildly at" the victim. Officer Franklin could not see if the Defendant had anything in his hands, but the Defendant's hands were "balled up." Officer Franklin saw a t-shirt in one of the victim's hands and testified that the victim appeared to be using it to try and "block the blows" from the Defendant. Officer Franklin testified that there were "a variety of reasons" that an inmate would wrap a t-shirt around his hand, including using it "to tie knives or weapons to [his] hands."
Officer Franklin exited the cage and turned "away for a brief moment to lock the door to the cage." When he turned back, Officer Franklin saw the victim fall to the floor in front of the cage. The Defendant and the other inmates "scattered out" when the victim fell. The Defendant ran up to the second floor of the unit. Officer Franklin testified that he saw a "lot of blood" coming from the victim's neck. The victim "appeared to be unconscious" and "was kind of making a gurgling sound." Officer Franklin attempted to put pressure on the victim's wound but it did not help. The victim's eyes "were pretty well fixed straight ahead, " and he "was completely unresponsive." Officer Franklin testified that there were between thirty and forty inmates in the area but that when "the fight broke out most of them scattered and went back to their respective cells."
William West testified that he was an inmate at NECX on September 1, 2006, serving a sentence for an especially aggravated robbery conviction. Mr. West testified that he was on the upper level of Unit 12 when the victim was killed. Mr. West saw the Defendant approach the victim and "ask[ed the victim] to apologize for something that had occurred on the basketball court." The victim told the Defendant, "B---h, I ain't apologizing, do what you've got to do." The victim also told the Defendant that he was "just talking s--t" and would not do anything. According to Mr. West, the Defendant then went into one of the cells. Mr. West testified that the Defendant came out of the cell with two other inmates and that the three men "sprung on" the victim.
According to Mr. West, one of the inmates punched the victim and "knock[ed] him to the ground." Then the Defendant went to the victim's right and co-defendant Roberson went to the victim's left. Co-defendant Roberson "stuck" the victim in his chest, and the Defendant "stabbed him in the neck." Mr. West testified that after they stabbed the victim, the Defendant and co-defendant Roberson went upstairs, walked past him, wrapped the knives in a shirt, and dropped them into a trash can. Mr. West saw that the Defendant had a "prison shank" that was "ten to twelve inches long" and "skinny." Mr. West testified that the victim was "a rather large man, " loud, and "arrogant." However, Mr. West testified that the victim did not have anything in his hands or wrapped around his hands when he was attacked. Mr. West also testified that the victim did not "yell" or say anything while the Defendant and the other inmates attacked him.
Mr. West admitted that he had recently been granted parole, but he claimed that he did not decide to testify until after the parole decision had been made. Mr. West testified that the prosecutor did not promise him anything in exchange for his testimony, but the prosecutor had stated that he would try to get Mr. West released earlier and moved to a different facility after the trial. Mr. West claimed that he did not agree to testify until a week before the trial because he was afraid of the Defendant and "his associates" and that he was "putting [his] life in jeopardy" by testifying. Mr. West admitted that he was talking with another inmate "about a drug deal" when he witnessed the victim's murder. Mr. West further admitted that he had trouble remembering things that were "not relevant" to him because he had "smoked a lot of pot."
Mr. West admitted on cross-examination that he was a former member of the Aryan Brotherhood, a white supremacist prison gang. The victim and all of the defendants in this case were African-Americans. Mr. West also admitted on cross-examination that he had given a statement to investigators but refused to sign it. Mr. West's statement did not mention what the victim had said to the Defendant because, Mr. West claimed, the investigator never asked him about what the victim said. Mr. West further admitted on cross-examination that he had written co-defendant Roberson's attorney and sent him an affidavit that "totally" contradicted what he testified to at trial. Mr. West claimed that he was lying in the affidavit and "forged" it to "protect" himself.
Steve Hannah was also an inmate at NECX on September 1, 2006. Mr. Hannah refused to testify at trial, so his preliminary hearing testimony was read to the jury. In his prior testimony, Mr. Hannah testified that he heard the victim call the Defendant a "b---h" during a basketball game. According to Mr. Hannah, the Defendant and co-defendant Roberson approached the victim inside the unit and told the victim "he'd better apologize or . . . there was going to be trouble." Mr. Hannah testified that the victim told the Defendant and co-defendant Roberson to "f--k themselves." The Defendant and co-defendant Roberson then "walked off." Mr. Hannah testified that he then saw the Defendant, co-defendant Roberson, and another inmate "coming down the steps" and that they "started confronting" the victim. Mr. Hannah testified that there was "a lot of commotion" during the confrontation.
Mr. Hannah testified that co-defendant Roberson and the third inmate started "exchanging blows" with the victim. Mr. Hannah saw co-defendant Roberson "slinging" something in his hand at the victim. Mr. Hannah also saw the third inmate "stick" the victim "a few times with something." The victim tried to back away from the three men, but he fell down. Mr. Hannah testified that when the victim fell down, the Defendant stabbed the victim in the neck with a big, "shiny" shank. The victim got up to run away but fell again. When the victim fell the second time the three men "took off and went the other way." Mr. Hannah testified that he did not see a weapon in the victim's hands and that he did not recall anyone wearing gloves during the altercation. Mr. Hannah testified that he was not promised anything in exchange for his testimony and that testifying had caused him "more problems than it's worth."
Captain Randy Lee testified that on September 1, 2006, he was the shift commander in charge of Unit 12 at NECX. Capt. Lee testified that shortly after the incident, he went to the cell the Defendant was being held in and asked the Defendant, "[D]o you know this inmate's dead down here?" The Defendant replied, "[Y]eah, I know he's dead I meant to kill him." Correctional officers found two shanks, gloves, a pair of shorts, and a shirt in a trash can on the upper level of the unit. The gloves were "wool brown gloves" that were "issued to inmates for wintertime." One of the gloves was found "across the blade" of one of the shanks. Correctional officers also searched the cell belonging to the Defendant and co-defendant Roberson. A pair of size twelve and a pair of size ten-and-a-half shoes were found in the cell along with more gloves. It was established at trial that the Defendant wore size twelve shoes and that co-defendant Roberson wore a size ten-and-a-half.
The Defendant gave a statement to Tennessee Bureau of Investigation (TBI) Agent Franklin C. McCauley, Jr., on the night of September 1, 2006. The Defendant told Agent McCauley that the victim "basically was disrespecting" him during a game of basketball. The Defendant said that he "kept giving [the victim] chances to apologize, . . . but he wouldn't do it." Instead, the victim "just kept running his mouth." The Defendant told Agent McCauley that the victim accidently pushed him during the basketball game but that he "wasn't mad about it" until the victim "started talking about what [the Defendant] would do to him in return." The Defendant told the victim that he would tell the victim "to his face" if he had "intended to do anything."
The Defendant told Agent McCauley that he believed that the victim "thought all this was over once [they] went back inside the unit." Once inside, the Defendant "tried to get [the victim] to take back what he said." The victim told the Defendant that all he "ever talk[ed] about [was] killing somebody every time somebody foul[ed]" him. The Defendant then asked the victim if he "felt like [the Defendant] was threatening him." The victim told the Defendant that he felt threatened. The Defendant then told the victim that he was "not going to threaten someone and then not do anything about it." The Defendant told the victim that "he better start taking care of business and do something about it." The Defendant told Agent McCauley that he "stepped off towards [his] cell" on the upper level when the victim said that he was "going to do something about it."
The Defendant told Agent McCauley that, as he was walking to his cell, he saw the victim walk away from the table they had been sitting at but that he "didn't pay no [sic] attention to where he went." The Defendant further told Agent McCauley that he got his "shank" from his cell and described it as "a piece of metal about twelve inches long." When he came back downstairs, the Defendant saw the victim sitting at the table with "his shirt wrapped around his right hand." The Defendant told Agent McCauley that he kept his shank in his left pocket and covered it with his left hand. As he approached, the victim said "[W]hat's up, n----r." The Defendant responded, "I'm fixing to kill your ass." The victim tried to run, the Defendant told him, "[N]----r, there ain't no running, " and pulled out his shank.
The Defendant told Agent McCauley that after he pulled out his shank, he saw that the victim "had a shank in his left hand." The Defendant said that the victim "about half swung at [him] about waist level, but it was more like [the victim] . . . wanted to scare [him] with it." The Defendant said that he grabbed the victim's hand and took the victim's shank away from him. The Defendant told Agent McCauley that he was wearing gloves "to keep from cutting [his] hands." The Defendant said that he hit the victim and chased him around the unit while holding "knives in both hands." At one point, an inmate tried to stop the Defendant, and the Defendant "told him to get out of the way because [he] was still going to kill that n----r."
The Defendant told Agent McCauley that he was eventually able to trip the victim and that he tried to stab the victim in the heart but the victim "balled up on the floor." The Defendant stabbed the victim with the victim's shank, and when the victim turned to move, the Defendant stabbed the victim in the neck with the twelve-inch shank. The Defendant told Agent McCauley that when he pulled the shank out of the victim's neck, "blood squirted out and [he] jumped back." The victim tried to run, and the Defendant stabbed him in the shoulder. The victim then collapsed onto the floor. The Defendant said that he then walked to the upper level and put his right glove and both shanks in a trash can. The Defendant said that he hid his left glove and his clothes under his mattress in his cell. The Defendant told Agent McCauley that co-defendant Roberson "didn't have anything to do" with the murder.
Agent McCauley testified that there was a blood trail approximately fifty-two-feet long from where the victim was stabbed to where he eventually collapsed and died. Agent McCauley also testified that he did not see any wounds or injuries on the Defendant when he interviewed him. Jerry Gentry testified that he was the "compliance manager" at NECX and that he was present when Agent McCauley interviewed the Defendant. Mr. Gentry testified that the Defendant did not complain about any injuries during the interview. Mr. Gentry also testified about the NECX's telephone system. Mr. Gentry explained that all non-attorney calls made by inmates were recorded. Mr. Gentry further explained that each inmate used a unique personal identification number (PIN) to make phone calls and were limited to a list of ten pre-approved phone numbers they could call. The PIN number consisted of an inmate's Tennessee Department of Correction identification number and a four digit code.
Mr. Gentry played for the jury recordings of two calls made on September 7, 2006, that were made using the Defendant's PIN. In the first call, the Defendant spoke to a woman and told her that the victim had been "talking crazy, " pulled a knife on him, and that he took the victim's knife and killed him. The woman asked the Defendant if it was self-defense and if he "got [sic] witnesses." Later in the call, the Defendant told the woman that the victim was threatening him and that the victim had pretended to walk away but "started sticking [him] with that little old knife of his." The Defendant reiterated that he took the knife from the victim and killed the victim with his own knife. The woman told the Defendant that he needed "some witnesses" to say that was what happened. The Defendant told her that there were no witnesses because no one was "talking." The Defendant also stated that he knew his phone call was being recorded and that his co-defendants "didn't have nothing [sic] to do with it."
In the second phone call, the Defendant told a different woman that he killed the victim and that "nobody" helped him do it. The Defendant said that the victim had pushed him during a game of basketball, that he told the victim not to push him, and that the victim "kept talking that s--t." The Defendant also said that the victim was "kind of off." The Defendant told the woman that once he and the victim were back inside, he confronted the victim and that the victim pretended to walk away but pulled out a "little knife" and tried to stab him. The woman said that the Defendant should have "some more witnesses" because there were other inmates around. The Defendant responded that "they got a whole lot of folks saying this and that, you know, hating."
The Defendant also said that he did not "give a damn" because he had "double life plus forty-seven years, talk about doing something to [him, and he was] going to kill them." The Defendant told the woman that the victim said that the Defendant would threaten other inmates but would "never do it." Once inside, the victim said he wanted to fight the Defendant and was "talking about what he going to do." The Defendant said that he told the victim, "You ready to threaten me and fight me or something, I just want to make sure before I kill you that that's what you talking about." The Defendant said that he walked away, and when he came back downstairs, the victim pulled a "little knife" on him.
Doctor Teresa Campbell, an expert in forensic pathology, testified that she performed an autopsy on the victim's body. Dr. Campbell determined the cause of death to be multiple stab wounds. Dr. Campbell identified four stab wounds on the victim's body. The first was "in the right neck" and cut the victim's "right carotid artery causing a lot of bleeding." The next was "in the right chest" and cut the victim's aorta as well as perforated his right lung. The third was a wound "to the top of the right shoulder which went into the muscle." The fourth was "a shallow stab wound in the left upper arm." Dr. Campbell opined that the wounds to the victim's neck and chest "would have been the most immediately fatal." Dr. Campbell found that there was no bruising on the victim's body.
No fingerprints were found on either of the shanks recovered from the trash can on the second floor of Unit 12. Brad Everett, a TBI forensic scientist and expert in serology and DNA identification, testified that he examined several pieces of evidence for this case. Mr. Everett testified that both of the shanks had the victim's blood and DNA on them. The glove found in the trash can along with the shanks also had the victim's blood and DNA on it. Mr. Everett testified that he found traces of the Defendant's DNA inside the glove. The pair of shorts found in the trash can also had the victim's blood and DNA. Mr. Everett also testified that the glove and pair of size twelve tennis shoes found in the Defendant's cell both had the victim's blood and DNA on them.
Based upon the foregoing evidence, the jury convicted the Defendant of first degree premeditated murder. The Defendant filed a timely motion for new trial, which the trial court denied. This appeal followed.
I. Motion to Suppress
The Defendant contends that the trial court erred in denying his motion to suppress his statement given to Agent McCauley. The Defendant argues that he "made an unequivocal request for an attorney before making . . . the statement." The Defendant also argues that Agent McCauley tricked him into signing a waiver of rights form. The State responds that the Defendant has waived this issue by failing to include it in his motion for new trial and that we should limit our review to plain error. However, the Defendant raised this issue in a timely filed amended motion for new trial; therefore, we will address the issue on its merits.
On August 18, 2011, the trial court held a hearing on the Defendant's motion to suppress at which Agent McCauley, Mr. Gentry, and the Defendant testified. Agent McCauley testified that he was told by Mr. Gentry that the Defendant wanted to speak with him. Agent McCauley testified that once he was in the interview room with the Defendant, he "went immediately into the Miranda warnings to let [the Defendant] know he did not have to talk unless he wanted to." Agent McCauley was "[a]bsolutely" sure he "went through [the Defendant's] Miranda rights before [the Defendant] gave his statement."
Agent McCauley testified that he "read every word with" the Defendant of the TBI's waiver of rights form prior to the Defendant's statement. According to Agent McCauley, the Defendant told him that he understood his rights and signed the waiver form. Agent McCauley testified that he did not use an audio recorder, so he wrote the Defendant's statement down and then reviewed it with the Defendant. Agent McCauley further testified that the Defendant signed the TBI's "sworn statement form, " initialed the top and bottom of each page of the statement as well as any corrections in the document, and signed the last page of the statement. According to Agent McCauley, the Defendant "wanted to tell [him] his story." Agent McCauley testified that the Defendant never indicated that he did not want to speak with him or that he wanted an attorney.
Mr. Gentry testified that he was present when Agent McCauley interviewed the Defendant. Mr. Gentry testified that the first thing Agent McCauley did was go over the Defendant's Miranda rights. According to Mr. Gentry, Agent McCauley reviewed the rights waiver form with the Defendant, and the Defendant signed the form. Mr. Gentry testified that the Defendant never indicated that he did not want to speak with Agent McCauley or that he wanted an attorney.
The Defendant testified that he agreed to speak to Agent McCauley about "a homicide that occurred on the compound." According to the Defendant, Agent McCauley read him the waiver of rights form. The Defendant told Agent McCauley that he knew his rights but that he did not sign the form "just then." The Defendant testified that Agent McCauley then "pulled out another form with TBI on the top of it" and reviewed it with him. According to the Defendant, when Agent McCauley asked him to sign the forms, he told Agent McCauley he could ...