Alston v. State

MOYLAN, Judge. The subject is depraved-heart murder. The “bottom line” is that when a group, or two groups, of hoodlums deliberately engage in a gang-war style of shoot-out in a crowded urban area, they collectively trigger an escalating chain reaction creating a high risk to human life. When instead of taking their gunslinging vendetta to an uninhabited island or some remote spot in the desert, they arrogantly indulge in their homicidal insanity in the middle of a crowded block of residences, each participant in such collective madness displays a wanton and depraved indifference to any human life that might randomly fall within their overlapping and deadly enfilades.

Should death to one of the innocent bystanders or homeowners ensue, each participant in the lethal encounter has exhibited the mens rea that qualifies him for depraved-heart murder. In terms of the actus reus of this particular depraved-heart murder, the deadly homicidal force was not a bullet. Such an analytic approach would commit us to the trivializing foolishness of seeking to establish the trajectory and provenance of each of forty or fifty bullets fired in the course of a single wild exchange. The deadly homicidal force, rather, was a collective hail of bullets, a collective fusillade, with no further parsing required.

Which bullet came from which gun is inconsequential. One does not anguish over which member of the firing squad killed the prisoner. The appellant, David L. “Diesel” Alston, was convicted by a Baltimore City jury, presided over by Judge Roger W. Brown, of 1) the second-degree murder of fifteen-year-old Adrian Edmonds, 2) the reckless endangerment of Adrian Edmonds, 3) an assault on Eric Tyler, the eighteen-month-old baby of ⁵⁰ Adrian Edmonds, and 4) the attempted second-degree murder of Gregory Hall. On this appeal, the appellant contends: 1) that the evidence was not legally sufficient to sustain the conviction for second-degree murder; 2) that if the conviction for second-degree murder should stand, the appellant’s conviction for reckless endangerment should merge into it; and 3) that Judge Brown erroneously admitted hearsay evidence.

The Shoot-Out The shoot-out occurred at 11 P.M. on July 14, 1992 in the 500 block of Presstman Street in West Baltimore. No less than six young women, who were neither members nor adherents of either rivál group but who came within the deadly field of fire, testified for the State. Two other witnesses were Renardo Foster, a close friend of one of the contending groups, and Gregory Hall, a participant in the shoot-out and a member of the rival group. Hall testified pursuant to a plea agreement.

He had already entered pleas of guilty to the manslaughter of Adrian Edmonds and the battery .of Eric Tyler. Apparently, trouble had been brewing between the two groups of young men over a two-day period. Two nights before the shoot-out of July 14, Renardo Foster had been “shot at by some boys in a red Honda Prelude.” Foster believed the shooting stemmed from a dispute about a girl. After the shooting, Foster threw a chair through the window of the girl’s home.

On the next night, according to the testimony of Gregory Hall, there was another incident involving one Melvin Kirk, as to which no enlightening detail was furnished. All we know is that, as a result of that incident, Gregory Hall decided to arm himself. In an attempt to establish some chronology of events on the evening of July 14, we look first at the testimony of Phyllis Avery. Ms. Avery, who lived nearby at 556 Roberts Street, was sitting outside her house on the front steps when she ⁵¹ overheard a conversation in the course of which a last-minute effort to achieve a detente failed and the shoot-out apparently became inevitable.

The rival group to the one that the appellant belonged to numbered at least three adherents: Gregory Hall, a second individual known only as “B.O.,” and a third individual known only as “D Nice.” “B.O.” was described by one of the witnesses as “one of the New York boys.” The appellant, incidentally, was known in the neighborhood by his nickname of “Diesel.” As Phyllis Avery sat on her steps, she saw “D Nice” come up the street, calling “Diesel’s” name. Two of his companions waited for him at the corner, one of whom was “B.O.” It was the appellant’s brother Alton Alston who responded, on behalf of the appellant, to the hail from “D Nice.” He explained that he was “Diesel’s” brother and that he was authorized to speak for him. The effort to effect a truce was then made as “D Nice” directed Alton Alston to “tell your brother we would like to squash this before anyone else gets hurt.” Alton Alston’s response was apparently less than conciliatory, for “D Nice” then stated with prophetic accuracy, “Well, I guess this means more people getting hurt.” The two negotiators then walked away in opposite directions. It was approximately twenty minutes after that conversation that Phyllis Avery heard the gunshots.

Before returning to the second phase of Phyllis Avery’s observations, a chronological narration would interrupt her testimony to look at the intervening observations of Addie Smith, who lived at 1911 Brunt Street, near the scene of the ultimate shooting. Brunt Street is a narrow, alley-like street apparently connecting the 500 block of Roberts Street, where Phyllis Avery was sitting on her steps, with the 500 block of Presstman Street, where the shoot-out took place. It was she who saw a group of teenagers gathering outside her house who were “acting strange.” She recognized one of them as “Junior” Conyers, who also belonged to the same group as did the appellant. One of the group had a bag containing a gun or ⁵² guns in it.

As the group of young men walked down the alley behind Roberts Street, Addie Smith called the police. As soon as she hung up from that call, she heard “lots and lots of gunshots.” To return to the testimony of Phyllis Avery, approximately fifteen minutes after her observation of the detente that failed and shortly before the shooting, she was still on her front steps at 556 Roberts Street when she observed the apparent muster of the forces of the appellant’s group. She first saw Rennie “Cooper” Boiseau coming out of Brunt Street, where Addie Smith had made her observations, with a gun in his hand. “Cooper” and another adherent of his party, Micah Mays, sat on the adjacent set of steps. Within minutes, others joined them.

Added to the group were Thomas “Porky” Kent, Renardo “Nardo” Foster, and an individual known only as “Rock.” Renardo and “Porky” had ridden up on their bicycles, alighted from their bikes, and began checking their guns. It was Renardo who then started passing out bullets from a bag. “Porky” had a medium-sized gun and “Cooper” had what looked like a shotgun. “Rock” and another man got in a car and rode around the comer. “Cooper,” “Porky,” “Nardo,” and Micah then returned to Brunt Street, in the apparent direction of Presstman Street. Phyllis Avery went into her house and, a few minutes later, heard shots. As soon as she heard gunshots, Phyllis Avery ran outside because she knew her little cousin was in the Brunt Street alley.

She pushed her cousin into the house but she herself, at the corner of Roberts and Brunt Streets, was suddenly grabbed by “B.O.,” who was “one of the New. York boys.” “B.O.” had a gun in his hand. He threw Phyllis Avery against a wall and told her not to move or he would kill her. At that moment, Alton Alston came around the corner, wrestled “B.O.” off of Phyllis Avery, and told Ms. Avery to “run in the house,” which she obligingly did.

It was Tracy Braxton who first placed the appellant at the scene. She was sitting on the front steps on the odd-numbered side of Presstman Street just before the shooting broke ⁵³ out. With her were the two ultimate shooting victims, Adrian Edmonds and Eric Tyler, along with Takisha Carolina. Just before the shooting broke out, she saw the appellant coming down the opposite side of Presstman Street.

With him were “Porky,” “Cooper,” and Micah. As she was looking, the appellant pulled out a “real big gun” and began shooting with it. She said that it resembled State’s Exhibit No. 7, which was a semi-automatic rifle, recovered by the police two days later. The appellant and his three companions took a position behind a Chevy Blazer and did their firing from there.

Tracy Braxton and the three companions ran immediately toward Tracy’s house, which was about five doors away. Takisha Carolina got in first. She was followed by Adrian Edmonds, who was holding her son. As Adrian Edmonds ran into the hallway, she tossed Eric to Takisha Carolina, saying, “I’ve been shot.” She collapsed on the floor.

Tracy Braxton then discovered that Eric had been shot as well. When the police arrived a few minutes later, Adrian Edmonds was already unconscious. She died from a single gunshot wound in her side. The eighteen-month-old Eric Tyler had been shot once in the arm.

The two had, incidentally, been hit with bullets of different calibers. After making it to the sanctuary of her house, Tracy Braxton continued to hear shooting. When she looked out shortly thereafter, she saw the appellant running away. Takisha Carolina testified to the same effect as Tracy Braxton had done.

She testified that it was the appellant, “Cooper,” and two “light-skins” who came down the street, hid behind the truck, and started shooting. The “light-skins” were apparently “Porky” and Micah. Corinthia Carolina and Charlene Braxton could each testify only about the general magnitude of the shoot-out. Corinthia Carolina heard “a lot of shots” fired and saw “the sparks from the bullets shooting.” Charlene Braxton observed at least two men shooting long guns “lying on a Bronco truck” and people behind the truck “jumping up and down” and shooting across the top of it. ⁵⁴ When the police surveyed the scene later, cartridge cases were all over the area and the Chevy Blazer was riddled with bullets.

Two other vehicles on the same side of the street as the Blazer also suffered bullet damage. Some of the casings recovered indicated that an automatic or semi-automatic weapon had been involved. Two days after the shoot-out, the police executed a search warrant at the residence of Amy Conyers, the sister of Thomas “Junior” Conyers. They arrested the appellant, Thomas “Junior” Conyers, Micah Mays, Rennie “Cooper” Boiseau, and Thomas “Porky” Kent.

Recovered from the home was a .45 caliber Tech Nine semi-automatic handgun and a .722 caliber semi-automatic rifle. The testimony of Gregory Hall gave us a view of what the other “gang” was doing. Hall stated that he knew that the appellant and the appellant’s friends were angry at “B.O.” Hall himself did not know what to expect because he “was friends of ... the other guys,” i.e., “B.O.” and “D Nice.” As a result, Hall armed himself with a .32 revolver , on the night of the shoot-out. He explained further that “D Nice” was armed with a small handgun and that “B.O.” was armed with a 9 mm. “M-ll, something like that.” With apparent reference to the peace negotiations that failed, Hall described how “D Nice” had walked up Roberts Street, had spoken to someone, and then had returned.

Shortly after that, Hall, “B.O.,” and “D Nice” started walking up Division Street in the direction of Presstman. Hall continued: We was walking up Division Street and as I stepped on the block of Presstman, shooting just started, so I ran back and ducked behind a car and that’s when B.O. and Nice, they ran up and started shooting and I ran across the middle of Division going down Presstman discharging my firearms. The general flavor of what happens, and what happened here, when a group of arrogant and swaggering young men, acting like a group of drunken cowboys, engage in a street ⁵⁵ shoot-out, was well described by Gregory Hall. Hall fired his own gun six times, not aiming at anything in particular.

He described how “B.O.” and “D Nice” stood in the middle of Presstman Street, firing their guns “everywhere.” When asked if he could initially see who he was shooting at, he stated that he could not. He described how later in the firefight, he observed the appellant firing at him. The most telling comment, about behavior like this generally, was Hall’s description of “D Nice” when the shooting was over. He described “D Nice,” as “hyper and pumped up.” He stated that “D Nice” stood on the corner “yelling, hopping around like he just had done something that was outstanding.” It but remains to describe the crime that all of these gunmen perpetrated as they set this deadly chain of events in motion.

Depraved-Heart Murder The appellant raises the issue of legal insufficiency only with respect to his conviction for the murder in the second degree of Adrian Edmonds. Murder, of course, requires that there be a homicide. Adrian Edmonds was indisputably the homicide victim. Murder further requires that the criminal agent perpetrate the homicide with malice.

We now recognize that there are at least four forms of murderous malice. One of these requires neither a specific intent to kill nor a specific intent to do any grievous bodily harm. Neither does it involve the perpetration or attempted perpetration of a felony. This type of