Booze v. State

WENNER, Judge. Appellants, Donald E. Booze and Alan Shelton Snead, were each convicted by a jury in the Circuit Court for Baltimore City of two counts of first degree murder and illegal use of a handgun, 1 for which each was sentenced to two terms of life ²¹² imprisonment, plus ten years, all of which were to be served consecutively. In this consolidated appeal, appellants seek redress for what they perceive to be a plethora of errors by the judge who presided at trial. For clarity, we have rephrased and reordered appellants’ questions: Both Appellants I. Did the trial court err in overruling defense counsels’ Batson 2 challenges to the prosecutor’s exercise of certain peremptory strikes?

II

Did the' trial court err in denying appellants’ motions for a mistrial after a witness testified to the “drug reputation” of the defendants?

III

Did the trial court err in overruling defense objections to certain remarks made by the prosecutor in opening statement and closing argument? Snead only TV. Did the trial court err in restricting the cross-examination of a key State’s witness? Booze only V. Did the trial court err in allowing the prosecutor to present photographs of the murder victims to a State’s witness?

VI

Did the trial court err in denying appellant Booze his right properly to exercise his peremptory challenges? For reasons we shall explain, we shall affirm the judgments as to Booze, vacate them as to Snead, and remand Snead’s case to the circuit court for further proceedings consistent with this opinion. FACTS Antonio Henderson and Isaac Durant were shot to death in the 3100 block of Woodland Avenue in Baltimore City. ²¹³ Henderson was a drug dealer, and Durant may have been in the wrong place at the wrong time. At trial, the State first presented Durant’s fiancee, Rishardean Bennett 3 .

Bennett testified that she and Durant were traversing along Woodland Avenue when Durant stopped to speak with Henderson. At some point, Bennett saw Booze 4 and Snead 5 approaching with drawn weapons. Someone told Bennett to run and she ran. After hearing shots, Bennett learned that Durant was dead.

Bennett’s credibility was challenged when she acknowledged being “on the lam” for a “parole” violation from a felony drug conviction, and that she had been convicted for aggravated assault and theft. Moreover, Bennett had not informed the police of her version of events, or testified at appellants’ first trial. Michael Brooks was an eleven-year old cocaine dealer working for Henderson on the day of the shootings. Brooks testified that he observed Booze running up a path shooting, and Snead standing at an alley shooting.

Brooks had initially given various inconsistent versions of the incident, which he attributed to being “scared.” Brooks acknowledged that he was facing three counts of attempted murder, and would be tried by the same person prosecuting the case at hand. The prosecutor purportedly warned Brooks that if he changed his story, he might also face charges of perjury and contempt. Henderson’s nephew, Perry Knight, who had been convicted of conspiracy to distribute controlled substances and unauthorized use, testified that he saw Booze fire at his uncle. Before firing, Booze signalled to a person standing some distance away, who also fired at Henderson.

Knight subsequently returned fire at Booze “five times.” Although Knight testified he had seen Snead in the vicinity earlier, Knight could not ²¹⁴ identify him as the second shooter. Knight acknowledged that he had not initially approached the police with his version of events because he too was scared. Jacquetta Jones had known both Booze and Snead for some time. She testified that she observed both appellants brandish handguns, and that Snead had fired his weapon.

According to Jones, Snead began running and calling after Booze, who displayed his weapon while crossing the street. Baltimore City Police officer Nicholas Constantine was in a marked cruiser patrolling the area when a young man ran up and directed him to the 3100 block of Woodland Avenue. As he approached the area, Constantine observed Snead and three or four other men running. According to Constantine, Snead stopped and said, “I didn’t have anything to do with that.” Just then, Constantine heard shots ring out.

Snead then said, “you see, they’re still shooting.” Constantine then drove to the 3100 block of Woodland Avenue, where he found the bodies of Durant and Henderson. A fully-loaded .22 caliber revolver was found beside Henderson. Constantine also testified that Snead and his companions did not appear to be armed, but explained that he had seen them only briefly because he heard gunfire within a moment of Snead’s first statement. After being arrested, Snead said that although he was in the' area and heard gunfire, he did not know from whence it came.

I. Appellants first contend that the trial court erred in overruling their Batson challenges to the State’s striking two African-Americans from the panel. The first was a female (the first juror), who was No. 14 on the initial panel, and provisionally seated as juror No. 2. She was struck by the State’s fourth peremptory challenge. The second was a male (the second juror), who was No. 126 on the initial panel, and provisionally seated as juror No. 1.

He was struck by the State’s sixth peremptory challenge. ²¹⁵ According to the State’s brief, this issue has not been preserved for our review, as defense counsel declared the jury ultimately impaneled “acceptable.” See Gilchrist v. State, 340 Md. 606, 618 , 667 A.2d 876 (1995) (“When a party complains about the exclusion of someone from or the inclusion of someone in a particular jury, and thereafter states without qualification that the same jury as ultimately chosen is satisfactory or acceptable, the party is clearly waiving or abandoning the earlier complaint about that jury”). The State is wrong. Just prior to opening statements, the following colloquy ensued: COURT CLERK: Is the panel and alternates acceptable to the Defendant 1? DEFENSE COUNSEL 1: Subject to previous reservations.

COURT CLERK: Is the panel and alternates acceptable to Defendant 2? DEFENSE COUNSEL 2: Subject to my prior objections. We nevertheless agree with the State that Booze has failed to preserve a Batson challenge to the first juror being stricken, as counsel for Booze did not join in Snead’s objection to striking that juror. Md. Rule 8-131(a).

Cf., Stockton v. State, 107 Md.App. 395, 396 , 668 A.2d 936 (1995), cert. denied, 342 Md. 116 , 673 A.2d 707 (1996) (“On the appellate shore, moreover, there is, with each passing year, noticeable erosion of the preservation requirement and the dike is in need of constant repair”). After Snead’s counsel had presented a prima facie case, 6 the following ensued: THE STATE: And the other black female—I don’t remember which one that was. I’m not really sure—I’m not really sure who she was. But, anyway, the reason for [striking her]— ²¹⁶ THE COURT: Well, I know she was young.

If I recall correctly, that one and [sic] had on a pair of blue jeans, stone-washed jeans if I’m right on that. I can’t remember the number. At any rate, any response, [counsel for Snead]? COUNSEL FOR SNEAD: Yes.

I don’t think pregnancy is a woman [sic]—a reason to keep a woman off of a jury, nor do I think chewing gum is. What they said after they were excused by [the State] has nothing to do with the reasons why they were excused. THE COURT: Your motion is denied. It is clear from the record that the trial court failed to afford the State an opportunity to “tender” 7 a race neutral reason for striking the first juror.

Hence, we shall remand the Snead case for the limited purpose of permitting the State to explain why it had struck the first juror, provided it is able to do so. See, e.g., Mejia v. State, 328 Md. 522, 541 , 616 A.2d 356 (1992) (“... [S]hould it appear that there is no reasonable possibility that the circumstances surrounding the striking of [the disputed juror] can be reconstructed fairly, then a new trial may be required and the trial judge may order one”). As to the second juror, the following exchange occurred: COUNSEL FOR BOOZE: Yes. Your Honor, this is also on a Batson challenge.

I noticed that that juror was also somebody who had never been asked to come up here. No questions were asked of him. He didn’t make any noises. He wasn’t— THE STATE: I didn’t— COUNSEL FOR BOOZE: —chewing gum.

He was a black male. THE COURT: State, wait a minute. Let him finish. ²¹⁷ THE STATE: All right, Your Honor. COUNSEL FOR BOOZE: I think that the pattern has become a little more clear, that it is leaning towards black jurors.

THE COURT: [Counsel for Snead]? COUNSEL FOR SNEAD: I join the motion. I agree. THE COURT: All right.

State? THE STATE: Your Honor, I did not like his attitude towards me. I made certain observations of him, because, at first, I thought he would be good, because I thought he would be a strong foreman. I always pay attention to the first juror, because a lot of times they’re going to be a foreman.

But there were some things about him and the way he interacted with me that were negative. So, that’s why I took him off, especially because he’s going to be sitting next to me for a whole week or more. THE COURT: [Counsel for Booze]? COUNSEL FOR BOOZE: I think that in the Batson challenge the State is obliged to articulate a reason beyond mere feeling.

Since the State hasn’t done that, I’ll renew the motion. THE COURT: He was black, which the record should show he was a black male. All right. [Counsel for Snead]? COUNSEL FOR SNEAD: I would join in what [counsel for Booze] said.

I would— THE COURT: I cannot hear you. COUNSEL FOR SNEAD: I would join in what [counsel for Booze] said. I don’t think that saying that you have a bad vibe, the State could sit here forever and get around Batson with every juror. And I’m unaware of when a State’s Attorney and a juror would interact prior to the beginning of a trial. [Counsel for the State] said she didn’t like the interaction.

It’s my understanding there should be no interaction at this point. THE STATE: Your Honor, may I speak? ²¹⁸ THE COURT: Yes. THE STATE: His body language, his looking—the way he looked at me and his attitude towards me indicated that he was closed. I don’t want a prejudiced juror.

I just want a jury that’s open. If there’s anybody on the jury who by anything the way they interact with me communicates that they are closed to me, then I’m going to remove them. THE COURT: His demeanor was subtle? THE STATE: (No verbal response.) THE COURT: Itwas?

THE STATE: (No verbal response.) THE COURT: Your motion is denied. As we recently observed in Ball v. Martin, 108 Md.App. 435, 450 , 672 A.2d 143 (1996), 8 “the apparently broad scope of Batson has been severely constricted by recent cases.” See, e.g., Purkett v. Elem, — U.S. -, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995) (per curiam); Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991). Indeed, “Purkett ... appears to us to change drastically the impact of Batson by appearing to limit seriously the power of appellate courts to address the findings of trial courts in respect to the second step when that court is confronted with, and accepts, facially neutral reasons for the strikes, at least as far as the federal constitution is concerned.” Ball, 108 Md.App. at 450-51 , 672 A.2d 143 (footnote omitted). Writing for us in Ball , Judge Cathell concluded: In a practical sense, if, after the party opposing the strike has presented a prima facie showing, the proponent thereof proffers a facially neutral reason that is accepted by the trial court, then an appeal on Batson principles has little, if any, chance of success, given that the credibility of the ²¹⁹ proponent offering the reason is, as it is generally, for the trial court—not an appellate court—to determine.

Ball, 108 Md.App. at 456 , 672 A.2d 143 . Consequently, we shall not disturb the trial court’s Batson ruling as to the second juror.

II

Appellants next contend that the trial court erred in denying appellants’ motions for a mistrial after a witness testified to the defendants’ “drug reputation.” During Bennett’s cross-examination, the following ensued: COUNSEL FOR SNEAD: Who was standing on the curb? BENNETT: If I’m not mistaken, this one right here was standing on the curb— Q: Indicating for the record, Mr. Snead. And then you’re saying Mr. Booze would have been on the pavement? A: Right.

It wasn’t close range but I knew who these guys was because at the time I was— Q: Okay, ma’am. THE COURT: Wait a minute. Let her finish. COUNSEL FOR SNEAD: It’s non-responsive.

There was no question as to how she knew them at that time, Judge. BENNETT: Okay. THE COURT: Wait just a minute. Ma’am, finish your answer.

BENNETT: Okay. Like I was saying, it wasn’t—it wasn’t close up but I knew who these guys was because of the type of drug reputation they had. You see what I’m saying? Defense counsel joined in a chorus of motions to strike, and the trial court promptly gave the following curative instruction: ²²⁰ The jury will disregard the comment about she knew the drug reputation they had.

Ma’am, don’t say that anymore. The trial court subsequently denied motions for a mistrial. We need look no further than Rainville v. State, 328 Md. 398 , 614 A.2d 949 (1992), in which the Court of Appeals reiterated the factors to be considered in determining whether mistrial is required under such circumstances: whether the reference to [the inadmissible evidence] was repeated or whether it was a single, isolated statement; whether the reference was solicited by counsel, or was an inadvertent and unresponsive statement; whether the witness making the reference is the principal witness upon whom the entire prosecution depends; whether credibility is a crucial issue; [and] whether a great deal of other evidence exists.... Rainville, 328 Md. at 408 , 614 A.2d 949 (quoting Guesfeird v. State, 300 Md. 653, 659 , 480 A.2d 800 (1984)).

Suffice it to say that, following our own careful review of the record, based on Bennett’s single, isolated, unresponsive response to defense questioning, mistrial was not warranted. In view of the State’s case neither rising nor falling on Bennett’s testimony, the curative instruction was sufficient to preserve a fair trial.

III

Appellants next contend that the trial court erred in overruling defense objections to certain comments the State made during its opening statement and closing argument. As have appellants, we will first address the comments complained of in the State’s closing argument. In closing, the State said, among other things: Ladies and gentlemen [of the jury], we also know that there were several other people out there that night, and that no one has come forward and said that this didn’t happen. Counsel for appellants strenuously objected, seeking mistrial on the grounds that the State had transferred the burden of ²²¹ proof to appellants.

The trial court denied the motions for mistrial, and promptly gave the following curative instruction: Members of the jury, the State sort of, not quite, implied that there might be some responsibility for the defendant to bring evidence in, or what have you. The defendant, and I’ve told you this at least a half dozen times, has absolutely no burden of proof, and to the extent that that was an implication, then that was wrong and [the State] won’t do that again. I don’t think [the State] meant to do that. It may have been misspoken on [the State’s] part.

But, remember this, these defendants have no burden of proof whatsoever, and that’s from the beginning of the trial to the end of the trial. The burden of proof is on the State to prove the defendants guilty beyond a reasonable doubt if the State can. “The rule is that reversal is warranted if ‘it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused.’ ” Rheubottom v. State, 99 Md.App. 335, 342 , 637 A.2d 501 , cert. denied, 335 Md. 454 , 644 A.2d 488 (1994) (citations omitted). In the case at hand, we are satisfied that the curative instruction eliminated any reasonable possibility that the jury was either misled or prejudiced by the comments. Snead also complains of the State’s mentioning one Dante Jones, who had testified only at the first trial, as “arguing facts not in evidence.” We disagree.

At trial, counsel for Snead said: I join that objection, except to the extent I believe that the two young men were identified as Michael Brooks and Dante Jones, and various witnesses did identify them both as selling drugs for Henderson. That’s been the only 'mention of Mr. Jones that would merit any mention that [sic] closing argument. There was no error. Snead also objected to the State’s following statement: ²²² In addition, [Rishardean], she called, and I don’t know about you, but I believe she was truthful when she said I wanted to— Snead believes the prosecutor’s interjecting her opinion as to Bennett’s credibility was “out of bounds.” We agree.

Neverthe-less, in Hairston v. State, 68 Md.App. 230, 240 , 511 A.2d 73 , cert. denied, 307 Md. 597 , 516 A.2d 567 (1986), although we agreed with appellant’s argument that “under the law, witnesses that testify for the State are assumed to be telling the truth is improper argument,” we went on to “hold that the court’s error in permitting the statement was harmless beyond a reasonable doubt,” citing Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976). Or, put another way, “not every improper comment made during closing argument requires reversal.]” Clarke v. State, 97 Md.App. 425, 432 , 630 A.2d 252 (1993) (citation omitted). We need not linger long over Snead’s contention that the State improperly appealed to the jury’s desire to protect the community. Snead is wrong once more.

See Wilhelm v. State, 272 Md. 404, 431-38 , 326 A.2d 707 (1974) (citing various cases for the proposition that such comments are within the permissible scope of argument to the jury). We next address Snead’s contention that the State “strongly implied, contrary to this Court’s teaching in Clarke , that defense counsel had misled the jury concerning the evidence, and improperly emphasized that there had been a previous trial of this case, see Coffey v. State, 100 Md.App. 587 , 642 A.2d 276 (1994).” The comments complained of follow: THE STATE: ... Now, he says, [counsel for Booze] says that Perry Knight and Terika Hood killed [Henderson] for a territory. But he has not offered you a shred of evidence on that point.

COUNSEL FOR BOOZE: Objection. THE COURT: Overruled. ²²³ THE STATE: Keep in mind, the Judge told you that our arguments are not evidence. What I’m saying to you, what they said to you are [sic] not evidence. If anything, we’re just a guide.

What evidence has he offered to you to support that comment? COUNSEL FOR BOOZE: Objection. THE COURT: Overruled. THE STATE: And if we were in the process of prosecuting two innocent men, certainly, somehow or another—for example, they say, oh, the witnesses’ testimonies have changed.

But when you go through the evidence, you’re not going to have any transcript from any trial which shows that these witnesses lied. They didn’t say anything different from this trial that they said in the first trial, and you’re not going to have that before you, because that didn’t happen. COUNSEL FOR BOOZE: Objection. THE STATE: Now, at times— COUNSEL FOR BOOZE: Objection.