Charles Village Court Watch

On March 12, 2011, James Cureton allegedly shot and killed Tanise Ervin and allegedly shot Rashad Jenkins and Darnell Barksdale in the 1100 block of Gorsuch Avenue in Better Waverly.  Charges are first degree murder, two counts of attempted first degree murder, use of a handgun in a violent felony and lesser gun charges.

On Wednesday, Rashad Jenkins, who was to be a witness and who was under subpoena, ran out of the courthouse before he could be called to the witness stand.  I learned this morning that he had been captured in Hagerstown where he had been living with his girlfriend.  On Wednesday, Judge Fletcher-Hill had signed a body attachment (a court order for the arrest of a witness who has failed to appear).

The first of three witnesses today was Assistant Medical Examiner Dr. Ling Li.  She performed the autopsy on Tanise Ervin.  There was bruising on Ervin's face from a fall after she was shot.  There was one entrance wound in the back and no exit wound.  The bullet traveled upward from left to right in the body and passed through the left lung and through two chambers of the heart.  More than two liters of blood was in the chest cavity, and the body normally contains four to six liters of blood.  The toxicology report was negative for alcohol and drugs.  The cause of death was a gunshot wound, and the manner was homicide.  The body showed no evidence of a shot from close range, but soot and gunshot residue could have been left on the clothing which had been replaced in the hospital.  A bullet was recovered from the soft tissue in the chest cavity and was turned over to police.

After a recess, Rashad Jenkins was led into the courtroom to the witness stand, and his cuffs were removed.  Cureton was brought back into the courtroom, and after Judge Fletcher-Hill returned, he told Jenkins: "I cannot tell  you how to testify.  Sit up and speak clearly."

Defense attorney Jack Rubin raised a question about showing a video of Jenkins' escape Wednesday, and a bench conference ensued.  As it happened, the video was not shown.  The state said that at this point, it had not charged Jenkins for his escape.  The judge also told Jenkins that he would be asked about his escape Wednesday, and he was advised of his Fifth Amendment right to remain silent, but as it happened, he was not asked about his escape.

The jury entered, the state called Rashad Jenkins, and Jenkins was sworn.  He was questioned by Assistant State's Attorney Larai Everett.

Jenkins is 23 and has lived in the Gorsuch Avenue area.  He has often been to the deli at Gorsuch and Independence.  He knew Tanise Ervin from 2009 to 2011.  They were close friends but not boyfriend and girlfriend.  She lived in the 900 block of Gorsuch, about one half block from where he lived.

Jenkins does not remember much about March 12, 2011.  Tanise was shot, and he was shot in the back.  He does not know if they were with anyone else.  Tanise worked at the McDonald's on Greenmount.  They hung out when she got off work.  At first, she wore her uniform but then changed clothing.  Barksdale hung out too; he was older.

The three were walking from the deli toward Loch Raven when shots came out of nowhere from behind.  He did not see the shooter.  He took off running, everyone ran.  He went to his back yard because he had weed on him.  When he came back to Gorsuch after 10-15 minutes, everyone was crying.  He realized he had been shot when people saw blood.  He was not allowed to leave the area and was there a couple of hours.

A bullet had gone through his body.  He does not remember when he talked to detectives, maybe at the hospital.  He remembers very little, but he does remember looking at a photo array.  The photo array shows that he had identified one photo and had written: "This is the person who shot me."

Jenkins claimed that he did not see BG / 2G in the courtroom.  He perhaps has seen the defendant in the neighborhood but saw the defendant only last week and now in the courtroom  He does not remember much of what he told detectives.

After a lunch break, jurors were given a transcript of an interview of Jenkins at homicide on March 14, 2011, and the taped interview was played.  In the interview, Jenkins said that he had been with Barksdale and Ervin.  He had seen BG / 2G pointing a gun from behind him.  The gun had had an extended clip.  BG / 2G was not from the neighborhood, and Jenkins did not know his real name.  The recording then had an acknowledgement of the signing of the photo array by Jenkins.  A line in the tape was: "Both men had weapons."  Defense attorney Jack Rubin objected to accepting the tape as evidence, and Judge Fletcher-Hill sustained the objection but said he would discuss it later.  Jenkins said he not remember whether he had seen one or two men with guns.

On cross examination, Jenkins said that he and Tanise would go to the deli about twice a day.  He might have been off from work the day of the shooting, and he did not see the shooting.  He had heard something about 2006 or 2007, but anything about a stabbing was just street talk.  His little group was himself, Ervin, Barksdale and two others including perhaps a Taneka.  He smokes weed every day and had tested positive for marijuana.  He had smoked a blunt [a marijuana cigarette] that day.

Jenkins is 6'1" and the shooter was the same height but more muscular.  Jenkins had told police the person who had shot had no facial hair but was a little scruffy.  Jenkins had heard on the street that there were two types of shell casings.

On redirect examination, Jenkins said that he had felt that someone was behind him, and had seen the gun and the shooter and had seen an extended clip.  His memory was refreshed today.  He had gotten the blunt from Darnell Barksdale.  Had he told the detectives what he had seen without guessing?  He was guessing today, two years later.  He could not identify the other shooter.

On recross examination, Jenkins said that he had had enough marijuana that he would have been arrested for possession.

Judge Fletcher-Hill said that he had signed the papers for Jenkins to be released.  After the jury had retired, the state asked that the tape be admitted as evidence.  Defense attorney Rubin said that it was overreaching by the state.  Judge Fletcher-Hill said that he would rule that afternoon.  See the ruling at the end of today.

After the jury had returned, the state called Detective Arthur Brummer who was the lead detective on the case.  He was examined by Assistant State's Attorney Richard Gibson.  In 2011, he had been assigned to homicide for 8 to 9 years.  On March 12, 2011, he got a call at 6:27 p.m. for a triple shooting in the 1100 block of Gorsuch Avenue.  The homicide had occurred at 6:01 p.m.  It was a sunny and pleasant March day.

He saw 6 shell casings that he believed to be 380 caliber, but the lab later said that one was 9 mm.  Casings come from a semi-automatic handgun, not a revolver.  The 9 mm. casing could be an artifact, i.e. there from before, and in fact there had been a call the day before about discharge of a firearm.  There were a slipper and a set of keys from Tanise Ervin.  Ervin and Jenkins were taken to Johns Hopkins Hospital downtown, and Barksdale was taken to Johns Hopkins Bayview.  An area canvass had been done by the patrol officer, and there were no identifying witnesses.  Jenkins was upset, not saying much and very emotional.  Barksdale was uncooperative and did not know what had happened.

On March 13, Detective Brummer spoke to Rashad Jenkins at homicide.  On March 14, Jenkins was again brought to homicide and wanted to talk.  Here, we heard basically what we had heard earlier on the tape of the interview.

The defendant had been arrested on April 3, 2011 on a violation of probation warrant and was still in custody when arrested April 28 on the current charges.

The defendant's girlfriend Tiara Cunningham was his alibi witness.  [I gave the first name earlier as Carrin, which is how she spelled her first name when she testified earlier, but the name has consistently been pronounced as Tiara.]  Detective Brummer spoke to her for the first time April 4, 2011 and again on February 15, 2012 about the alibi.  The interview was put on tape without any pre-interview.  She had said she had a photo of the defendant taken at 6:30 p.m. March 12, 2012, i.e. 29 minutes after the shooting.  The photo had been taken at her home.  But the lab had determined that the photo actually had been taken on March 13.

Detective Brummer and another detective drove at about 6 p.m. on a Saturday from the location of the incident to Cunningham's home, never exceeding 25 m.p.h. and obeying all stop signs and lights.  It took 9 minutes.

The detective spoke to Barksdale on March 24, 2011, but did not show the photo array to him because he had claimed not to have seen the shooter.

On cross examination, Detective Brummer did not add much other than that he was not an expert on drugs.  On redirect examination, he stated that Jenkins had not been under the influence when a statement had been taken.  There was no recross examination.

There was a bench conference on scheduling.  The jury is to return Monday at 9:30.  The state's case is done.  The case can be expected to go to the jury Monday.

With the jury gone, there was the usual defense motion for acquittal.  Defense attorney Rubin stated that there was no evidence of premeditation.  Prosecutor Gibson said that the shooter had come around, pointed a gun and shot.  There was premeditation based on the 2006 incident.  The motion was denied concerning the murder, attempted murder and use of a handgun counts.  There was mention of transferred intent, i.e. that when the wrong person is shot, the intent still is there legally.

The one count on which there was an acquittal was possession of a firearm by someone who legally may not possess one.  The state had rested and had not introduced a certified record of a conviction of the defendant that had made him ineligible legally to possess a firearm.

At 9:15 Monday, the attorneys are to appear to talk about jury instructions and estimates of time for closing statements.

The issue of whether the jury would be allowed to get and to play during deliberation the tape of the interview of Rashad Jenkins was now decided by Judge Fletcher-Hill.  Here are the Maryland rules referred to in his decision:

Rule 5-802.1. Hearsay exceptions -- Prior statements by witnesses

    The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:

(a)  A statement that is inconsistent with the declarant's testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;

(b)  A statement that is consistent with the declarant's testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive;

(c)  A statement that is one of identification of a person made after perceiving the person;

(d)  A statement that is one of prompt complaint of sexually assaultive behavior to which the declarant was subjected if the statement is consistent with the declarant's testimony; or

(e)  A statement that is in the form of a memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, if the statement was made or adopted by the witness when the matter was fresh in the witness's memory and reflects that knowledge correctly. If admitted, the statement may be read into evidence but the memorandum or record may not itself be received as an exhibit unless offered by an adverse party.

The state argued that the tape should be admitted under (a), but Judge Fletcher-Hill said that he had admitted it under (e), i.e. for the purpose of allowing the Jenkins to refresh his memory.  Thus, he ruled that the tape itself would not be available to the jury during deliberation but that the jury would have to rely on its memory of what was on the tape.  That is basically what (e) requires.  Indeed, the judge suggested that he might say in jury instructions that the tape would not be available to the jury.  On the other hand, he said that if the jury asks to replay testimony by Jenkins, the issue might be revisited.