Anderson v. State

JAMES A. KENNEY, III, J. (Retired, Specially Assigned). Following a trial in the Circuit Court for Montgomery County, a jury convicted appellant, Justin T. Anderson, of attempted first-degree murder, use of a handgun in the commission of a felony and/or crime of violence, wearing, carrying, and transporting a handgun about his person, and possession of a handgun by a prohibited person. 1 The trial court sentenced appellant to a total prison term of thirty years, after which he filed a timely notice of appeal. 2 Appellant presents the following questions for our consideration: 1. Did the trial court err by not allowing the defense to impeach a State’s witness on a prior conviction for a crime that was relevant to the witness’s credibility? ³³⁴ 2.

Did the trial court abuse its discretion by allowing two State’s witnesses to testify after a violation of the sequestration rule? 3. Was the evidence insufficient to convict Mr. Anderson of attempted murder? For the reasons that follow, we shall affirm the judgments of the trial court. FACTS AND LEGAL PROCEEDINGS On October 30, 2012, Cariol “Jeff’ Toliver was home at 1092 West Side Drive, in Gaithersburg, with his mother Theresa Toliver, his sister Celestine “Tina” Toliver, his son Pierre Toliver, and Pierre’s live-in girlfriend, Edwerta Hughes. 3 That evening, Emmanuel Gbadyu, a childhood friend of Pierre’s whom the Tolivers had not seen for several months, arrived at the West Side Drive house with two other men— appellant and a man later identified as Russell Bass.

Gbadyu told Jeff he wanted to see Pierre. Something in appellant’s “out there” demeanor made Jeff uncomfortable, but he permitted Gbadyu to go down to Pierre’s basement bedroom. 4 Appellant, wearing what Jeff remembered as a red winter hat and black boots, remained in the hallway. While Gbadyu was in the basement, Pierre gave him a polo shirt, which may have been in lieu of $20 that Pierre owed him. Theresa, also having “vibes” and not wanting the men in her house, told Pierre that the three men had to leave.

They left through the front door and walked to a white Cadillac parked in front of the house. 5 Jeff exited the house to make sure the men left and saw appellant pointing a small gun at Gbadyu, who was sitting in ³³⁵ the driver’s seat of the car. Shots were fired, some toward Gbadyu. He identified appellant, who had been standing by the open front passenger door of the Cadillac, as the shooter. Afraid of being shot, Jeff ran and tried to enter his house as appellant “took off.” The front door was locked, so he ran to the back of the house and entered through the basement door.

Meanwhile, Theresa had dialed 911. Theresa testified that she saw a man she believed to be appellant standing outside the car, holding something in his hand. Although she could not identify what he was holding, she heard two gunshots. During her call to the 911 operator, which was played for the jury, she identified the shooter as a black man wearing a red cap.

Tina, looking out an upstairs window, saw Gbadyu get into the Cadillac. When she heard a pop, she realized that he was being shot by appellant. Although she did not see a gun, she said she knew appellant shot Gbadyu because she heard a shot and then saw Gbadyu fall. Thereafter, she said, appellant walked around to the back of the house and returned a few minutes later.

Jeff and Pierre went outside, and they, along with Bass, who had been in the back seat of the car during the shooting, tried to help Gbadyu out of the car. A few minutes later, Jeff and Pierre saw appellant walking back from the same direction in which he had left. Although he said that appellant had been holding a gun when he ran away, Jeff did not see a weapon when he returned. Afraid that appellant might still have the weapon, Bass (the individual who arrived at the Toliver house with Gbadyu and appellant) and Pierre ran toward a nearby park, and Jeff ran the other way.

When Pierre heard the police sirens, he returned to his house to find appellant “holding” Gbadyu. The responding police officers described appellant, who was wearing a black jacket and red hat, as “standing over” Gbadyu when they arrived at the scene. Because appellant told the officers that Gbadyu had a gun, the officers handcuffed Gbadyu, appellant, and Pierre for safety reasons. An unidentified person ap ³³⁶ peared and informed the police that appellant was the person who had shot Gbadyu; when appellant heard that statement, he began to laugh.

Gbadyu was removed to the closest trauma center with life-threatening injuries. He suffered several gunshot wounds to his lower back, abdomen, and face. A bullet fragment was recovered from his body. 6 The police found no weapon on appellant or in the Cadillac. They did recover two .380 caliber handgun shell casings from the ground nearby and another from the interior of the Cadillac.

On November 4, 2012, a neighbor of the Tolivers, Alvaro Correa, notified the police that he had found a handgun under an overturned trashcan in his backyard. It was a Walther PPK semi-automatic, which fired .380 bullets and was later determined to be operable. The State’s firearms examiner concluded that the shell casings recovered from the scene of the shooting were fired from the Walther. There were not enough individual characteristics present in the bullet fragment removed from Gbadyu’s person to either identify or eliminate it as having been fired by that gun.

A gunshot residue test revealed one particle of one-component gunshot residue on one of Bass’s hands, which could have come from the discharge of a firearm or from “other sources in the environment.” Eight particles of three-component gunshot residue were found on appellant’s right hand that, in the gunshot residue expert’s opinion, could only have come from the discharge of a firearm. The expert explained, however, that did not necessarily mean that appellant was the person who pulled the trigger; he could have obtained the residue by being in close proximity to another person firing a gun. At the close of the State’s case-in-chief, appellant moved for judgment of acquittal, arguing that the State had failed to ³³⁷ adduce any evidence that appellant possessed the necessary specific intent to kill or cause grievous bodily harm to support a charge of attempted murder. Because the State presented no evidence of any planning by appellant or a disagreement between appellant and Gbadyu, the most it had shown was that appellant was standing by his car and fired two shots into it while the victim was inside. 7 And, in the absence of a predicate violent crime, he could not be convicted of the use of a firearm charge.

Defense counsel also argued that the remaining firearm charges could not stand because no evidence sufficiently established that appellant carried or possessed a handgun. In support of that argument, he stated that no witness except Jeff saw a gun in his hand, and that Jeff had a motive to lie because his son, Pierre, may have been the shooter. The court denied the motion. Appellant presented no evidence, and at the close of all the evidence he renewed his motion for judgment of acquittal for the reasons previously asserted.

The court again denied the motion. DISCUSSION I. Appellant first argues that the trial court erred in declining to permit him to impeach Pierre Toliver with a prior conviction for carrying a concealed weapon. He contends that, information regarding that conviction would have served to impeach Pierre’s credibility because carrying a concealed weapon is a crime involving deception and shows a willingness to lie under oath. ³³⁸ During a bench conference, there was the following exchange: [DEFENSE COUNSEL]: He has a prior conviction for carrying a concealed weapon. [PROSECUTOR]: I don’t think he actually has that conviction. [DEFENSE COUNSEL]: He has the conviction. [PROSECUTOR]: He had the conviction but it’s not impeachable. THE COURT: Well, he does not have the conviction? [PROSECUTOR]: He does have the conviction.

THE COURT: He does have the conviction but— [PROSECUTOR]: It’s not impeachable, Your Honor. THE COURT: Okay. [DEFENSE COUNSEL]: And we maintain that it is, Your Honor, the test for when a conviction is impeachable is whether it shows hiding or deception, or attempting to hide or deceive. By definition, if someone is concealing a weapon, they have the propensity to deceive and to hide things. THE COURT: Okay.

As far as the time, 15 years, it’s within 15 years? [PROSECUTOR]: It is, Your Honor, but it’s not one of the enumerated— THE COURT: No I understand it’s not. I know your objection. [PROSECUTOR]: Oh yeah, I’m sorry. I think it was— [DEFENSE COUNSEL]: It was in 2006. THE COURT: 2006, okay.

Yes, it is not. It is not and I am going to rule that it not [sic] an impeachable offense. Maryland Rule 5-609 provides, in pertinent part: (a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or ³³⁹ other crime relevant to the witness’s credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or objecting party.

(b) Time limit. Evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction. We employ a three-part test under Rule 5-609 to determine whether a witness may be impeached with evidence of a prior conviction. See King v. State, 407 Md. 682 , 967 A.2d 790 (2009).

First, the court determines whether the conviction sought to be used to impeach a witness’s credibility falls within the “eligible universe” of crimes, which consists of two categories, “infamous crimes” and “other crimes relevant to the witness’s credibility.” Id. at 698-99 , 967 A.2d 790 . “Infamous crimes include treason, common law felonies, and other crimes classified as crimen falsi.” 8 Id. at 699 , 967 A.2d 790 . To fall into the category of “other crimes relevant to the witness’s credibility,” the crime itself, by its elements, must clearly identify the prior conduct of the witness that tends to show that he is unworthy of belief. Moreover, a crime tends to show that the offender is unworthy of belief, if the perpetrator “lives a life of secrecy” and engages in “dissembling in the course of [the crime], being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.” Washington v. State, 191 Md.App. 48, 82 , 990 A.2d 549 (2010) (alteration in original) (quoting State v. Westpoint, 404 Md. 455, 484 , 947 A.2d 519 (2008)). If the prior crime is not within either of the two categories, “it is inadmissible, and the analysis ends.” West- ³⁴⁰ point, 404 Md. at 477 , 947 A.2d 519 (quoting State v. Giddens, 335 Md. 205, 213 , 642 A.2d 870 (1994)).

If the crime does fall within one of the two categories, the burden is on the proponent (in this case, appellant) “to establish that the conviction was not more than 15 years old, that it was not reversed on appeal, and that it was not the subject of a pardon or a pending appeal.” Westpoint, 404 Md. at 477-78 , 947 A.2d 519 . If that burden is satisfied, the trial court, before admitting the prior conviction for impeachment purposes, must determine that the probative value of the prior conviction outweighs the danger of unfair prejudice to the witness or objecting party. Id. at 478 , 947 A.2d 519 . That balancing is a matter of trial court discretion.

Id. By requiring the trial court to weigh probative value against the danger of unfair prejudice, “Rule 5-609 attempts ‘to discriminate between the informative use of past convictions to test credibility, and the pretextual use of past convictions where the convictions are not probative of credibility but instead merely create a negative impression’ of the witness.” Id. (quoting Jackson v. State, 340 Md. 705, 716 , 668 A.2d 8 (1995)); see also King, 407 Md. at 700 , 967 A.2d 790 . Appellant and the State agree that Maryland’s appellate courts have not specifically determined whether carrying a concealed weapon is an offense that may be admissible for impeachment purposes pursuant to Rule 5-609.

In our view, the trial court correctly determined that it is not. Maryland law prohibits a person from “wearing] or carrying] a dangerous weapon of any kind concealed on or about the person.” Md.Code (2002, 2012 Repl.Vol., 2015 Supp.), § 4-101(c) of the Criminal Law Article. To be sure, the crime requires concealment of the weapon, but there is nothing inherent in the elements of the offense that bears directly on the likelihood that the offender would lie under oath. In Westpoint , the Court of Appeals explained that a person who has committed a third-degree sexual offense usually acts in secrecy, but acting in secrecy, “in and of itself, is not sufficient to render the prior conviction admissible for the ³⁴¹ purpose of impeachment.” 404 Md. at 486 , 947 A.2d 519 .

Similarly, the Westpoint Court added that convictions for simple possession of controlled dangerous substances, which “by their nature” involve secrecy, are not admissible as impeachment evidence. Id. In Correll v. State, 215 Md.App. 483, 506-07 , 81 A.3d 600 (2013), this Court determined that failure to register as a sex offender did “not include an intent to deceive,” and therefore, was not a crime admissible for impeachment because an offender “can knowingly fail to register, thus committing the crime, for reasons that are not deceptive.” We are not persuaded that the elements of the crime of carrying a concealed weapon clearly identify conduct indicating that Pierre was unworthy of belief. That is, by carrying a concealed weapon he lives a life of secrecy, engages in dissembling, and is prepared to lie if required by the demands of the moment.

Westpoint, 404 Md. at 484 , 947 A.2d 519 . Because the crime of carrying a concealed weapon is neither an infamous crime nor a crime relevant to his credibility, we hold that the trial court correctly precluded appellant from using Pierre’s conviction for that offense to impeach him. Moreover, had we concluded that the court erred in declining to permit the defense to impeach Pierre with the prior conviction, we would hold any such error to be harmless. See id. at 487 , 947 A.2d 519 (concluding that a conviction can stand if upon independent review of the record, we are able to conclude, beyond a reasonable doubt, that the error in no way influenced the verdict).

At trial, the State’s witnesses all presented virtually the same testimony, that is, that Gbadyu and appellant came to the Tolivers’ house and spoke with Pierre for a short period of time before leaving. After Gbadyu and appellant left the house, Jeff, Theresa, and Tina witnessed the shooting, and all three identified appellant as the shooter, but only Jeff testified that he saw appellant with a gun. Pierre, however, did not witness the shooting, and, therefore, could not testify to it. Even if Pierre was impeached for carrying a concealed weapon, he was not a material witness to the charged crimes. ³⁴² II.

Appellant next contends that the trial court abused its discretion in failing to impose a sanction for a violation of the court’s sequestration rule committed by Pierre Toliver, who was observed speaking to Tina Toliver and Edwerta Hughes about the case prior to their testimony. Appellant asserts that Pierre’s violation of the rule “could well have influenced the testimony of the later witnesses,” and therefore, the court should have excluded Tina’s and Ms. Hughes’s