Slakman v. State
| Decision Date | 13 July 2000 |
| Docket Number | No. S00A0227.,S00A0227. |
| Citation | 272 Ga. 662,533 S.E.2d 383 |
| Parties | SLAKMAN v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Steven E. Phillips, Atlanta, for appellant.
Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Christopher M. Quinn, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Wesley S. Wood, Assistant Attorney General, for appellee.
Nations, Toman & Nutter, David C. Nutter, Atlanta, amicus curiae. FLETCHER, Presiding Justice.
Barry Steven Slakman was convicted of the malice murder, felony murder and aggravated assault of his wife, Shana Glass Slakman. The trial court merged the convictions for felony murder and aggravated assault into the malice murder conviction and sentenced Slakman to life imprisonment. Slakman was also convicted of an aggravated assault on police officer Danny Hendrix who was conducting the murder investigation. Slakman was sentenced to 20 years for this offense to run concurrently with the murder conviction.1
Considering the totality of circumstances in this case, the trial court erred in allowing the court reporter to testify that she heard Slakman make an admission of guilt to the murder of his wife as he exited the courtroom, and that what she heard Slakman say was "verified" by her official audiotape. Therefore, we reverse and remand this case for a new trial on the murder charges.
FACTS.
In early July 1993 Shana Slakman informed Barry Slakman that she was seeking a divorce from him. On July 6, 1993 at approximately 8:30 a.m. Penny Adamo, Shana's mother, arrived at the Slakman apartment to help Shana move out. Ms. Adamo had discussed the move with Shana the previous evening. When Shana did not come to the door, Ms. Adamo became alarmed and summoned the police. A police officer found Shana dead in the bathtub with the water still running. An autopsy revealed that Shana died between the hours of 6:00 a.m. and 8:00 a.m. from severe head trauma complicated by manual strangulation.
There were no signs of forced entry to the apartment, nor were there any indications of theft. The front door was dead bolted when police arrived.
A neighbor told police that at approximately 7:20 that morning she had seen Barry Slakman put two full garbage bags in the trunk of his car and drive away. She testified at trial that Slakman was acting "fidgety" and looking from side to side.
Later that morning Slakman went to see a divorce lawyer. The lawyer's receptionist testified that Slakman was nervous and had a "petrified" look on his face. That same morning Slakman went to Merrill Lynch to ascertain whether his account was solely in his name or was held jointly with his wife. There was testimony that he broke into tears while there.
Slakman gave a statement to police later that day during which he was visibly shaking. Suspicious because of Slakman's nervous behavior, police officer Danny Hendrix deliberately misinformed Slakman that Shana's body had been found in an upstairs bedroom. When Slakman continued to behave nervously, Hendrix gave him Miranda warnings and Slakman signed a waiver of rights.
Slakman thereafter stated that he left for work shortly before 6:00 a.m., then returned home at approximately 7:15 a.m. After Slakman stated that he heard the shower running at that time, he exclaimed to Hendrix, "Oh my God, you said you found her in the shower." When Hendrix denied this, Slakman argued with him over what he had been told.
In his statement Slakman maintained he had taken out the garbage and placed it in a dumpster. Police officers went through all the garbage at the apartment complex and, by matching addresses on discarded mail, were able to correlate bags of garbage to every apartment except the Slakman residence.
During the interview Lieutenant Hendrix interrupted Slakman's statement and asked whether Slakman had killed his wife. Slakman lunged at Hendrix and began strangling him. Slakman then plunged a pen into Hendrix's hand with such force that the tip imbedded and had to be surgically removed.
1. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Slakman guilty of the crimes charged beyond a reasonable doubt.2
THE COURT REPORTER'S TESTIMONY.
2. During its cross-examination of Slakman, the state showed him a photograph of Shana in a body bag, taken at the scene of the crime.3 Slakman became emotional and the trial court ordered the jury to the jury room. The court additionally ordered that Slakman be escorted from the courtroom by a deputy. As he left the courtroom, Slakman made a statement which was not transcribed by the court reporter.4 However, the court reporter's tape recorder was still operating.
Out of the presence of the jury the court ordered the court reporter to "perfect" the record5 by stating her recollection of what Slakman said. The court reporter stated that Slakman said, "How could I—why did I do that to her." The court then twice stated for the record that it had heard Slakman make the same statement. Neither defense counsel nor the district attorney indicated that they had heard what Slakman said, and it appears from the record that, but for the trial court's intervention, Slakman's statement would have gone unnoticed by either of them.
The trial court thereafter allowed defense counsel to put on the record the testimony of the deputy who escorted Slakman from the courtroom. Out of the presence of the jury this deputy testified that he heard Slakman say, "why did they do that to her."
When cross-examination of Slakman resumed, he denied making an admission that he had "done that" to Shana, but instead testified he had asked why "they" had done it.
Over the defense's objection the court reporter was permitted to testify before the jury to what she heard Slakman say.6 The court reporter additionally testified that listening to the audiotape she had recorded of Slakman's statement "verified" what she thought she had heard.7 After the court reporter testified to Slakman's inculpatory statement and its verification by the official tape recording, the state was permitted to play the audiotape for the jury. During closing arguments the state repeatedly referenced Slakman's statement as it had been testified to by the court reporter, and once again played the court reporter's audiotape for the jury.
The trial court did not give the jury any instructions regarding the manner in which it was to consider the audiotape.
Slakman argues that because there was an audiotape of his statement from which the jury could make its own determination of what had been said, the court reporter should not have been permitted to testify to what she heard or to testify that the audiotape "verified" her testimony.8 We agree. Further, we conclude that this error was not harmless, but requires a new trial.
The issue before us is the propriety of the court reporter's testimony to what she heard Slakman say as he exited the courtroom, and her bolstering of her own testimony by testifying that what she heard was verified by her audiotape. The court reporter's testimony went to the ultimate issue to be decided— whether Slakman murdered his wife. Prior to hearing the audiotape of Slakman's statement, the jury heard not only the court reporter's testimony of what she heard Slakman say, but her testimony that the official audiotape of the trial confirmed what she had heard.
We cannot overlook the jury's perspective of the dual role that the court reporter played in this case. In the eyes of the jury the court reporter was not only an employee of the court, but was the official transcriber of witness testimony. Given the official capacity in which the court reporter served at trial, the impact of her testimony on the jury's verdict cannot be ignored. These facts distinguish this case from the authorities cited by the dissent for the proposition that an ear witness to a statement captured on tape may testify to that statement.
Further, this Court has held that where a tape recording of the defendant's conversation or statement is played to the jury, it is not error to allow the jury to also view a transcript of that tape recording if particularized safeguards are met. The most critical of these safeguards includes an instruction to the jury that it is the tape recording and not the transcript which constitutes evidence of the defendant's statement; that the jury must determine for itself what was said on the tape recording;9 that if the jurors cannot understand the content of the tapes, they are to ignore the corresponding transcripted portion of the recording;10 and that any discrepancies between the tape recording and transcript are to be resolved in favor of the audiotape.11 The court reporter in this case was the person officially charged with listening to and transcribing the testimony of witnesses. Her testimony, at a minimum, had the effect of a transcript of Slakman's statement because it reflected the words she would have transcribed had she been taking them down. It is likely that the jury gave great deference to her testimony regarding this statement because of her official role in the trial. Yet none of the safeguards that would have been required of a transcript of Slakman's statement prepared by this court reporter were required of her testimony. At no time did the court instruct the jury that it was to determine for itself what was recorded on the audiotape or the manner in which it was to resolve any discrepancies between the court reporter's testimony and the contents of the audiotape. To the contrary the jury was guided only by the court's instruction that the testimony of witnesses was evidence in the case. The court's error in this regard was exacerbated by the fact that the court reporter was permitted to testify before...
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