Booze v. State

DAVIS, Judge. This case involves an appeal from the Circuit Court for Baltimore City. Donald Eugene Booze, Jr. and Alan Shelton Snead (appellants) were charged with the murders of Antonio Brandon Henderson and Isaac Durant and related ³³³ offenses. Appellants were convicted by a jury of two counts of first degree murder and illegal use of a handgun.

They each received two consecutive life sentences for murder and consecutive ten year terms for illegal use of a handgun. In this timely appeal from those judgments, appellants present the following issue for our review: Whether the trial court erred in permitting the State to reopen its case in chief at the rebuttal stage to offer the testimony of witness Perry Knight. Because we hold that the trial court abused its discretion in allowing the State to reopen its case in chief to offer testimony at the rebuttal stage of the proceedings, we reverse and remand for a new trial. FACTS Pretrial Proceedings On November 18, 1991, a hearing was held before Judge John N. Prevas on a defense motion to compel discovery pursuant to Md. Rule 4-263(a).

The case against appellants Snead and Booze had been docketed in the Circuit Court for Baltimore City on August 28 and September 4, 1991 respectively. Snead was arraigned and his counsel first appeared on September 26, 1991. Booze was arraigned and his counsel first appeared on October 18, 1991. On September 26,1991, the “State’s Disclosure” was filed as to each appellant.

Under the section for names of witnesses who made a pretrial identification, it was noted: “To be furnished at a later date.” At the hearing, the State’s Attorney explained that she “was trying to develop enough information to file a protective order.” Judge Prevas denied the State’s motion for a protective order, in part, and ordered the State to disclose only to defense counsel the names of pretrial identification witnesses and to allow defense counsel to interview them. He also admonished the State for failing to disclose the pretrial identification witnesses until one day before appel ³³⁴ lants’ trial and not permitting the defense adequate time for trial preparation. Judge Prevas transferred the proceedings to Judge Elsbeth Bothe. Before Judge Bothe, the defense then interviewed three State’s identification witnesses — Jaquetta Jones, Dante Jones, and Michael Brooks — on November 19, 20, and 21, 1991.

Trial State’s Case in Chief Trial commenced on Thursday, November 21, 1991. On the first day of trial, Michael Brooks, age 13, testified that on the night of July 28, 1991 he was walking along the street near Park Heights and Woodland Avenues in Baltimore with “Tony [Antonio Henderson] and Dante [Jones],” when “Cookie Man” (Snead) and “Butt-Butt” (Booze) began shooting. 1 Brooks testified that Snead was firing in front of an alley, while Booze ran out from a path. On the second day of trial, Friday, November 22, 1991, Jaquetta Jones, age 20, testified that each appellant had a gun. Jones testified that she witnessed each appellant fire two shots and that she also heard several other shots.

The medical examiner testified that victim Antonio Henderson died of a gunshot wound to the chest. The bullet was not recovered. Victim Isaac Durant died of a gunshot wound to the lower back. A firearms examiner testified that the bullet takemfrom Durant’s body was fired from a .38 caliber revolver.

The only handgun submitted in evidence was a fully loaded .22 caliber revolver. On the third day of trial, Monday, November 25, 1991, Baltimore Police Officer Nicholas Constantine testified that at about 10:00 p.m. on the night of July 28 he was in his marked vehicle parked in the 4700 block of Park Heights Avenue near the intersection with the 3100 block of Wood ³³⁵ land Avenue. A citizen directed Officer Constantine to the 3100 block of Woodland Avenue. Driving to that intersection, Officer Constantine encountered Snead running from the 3100 block of Woodland Avenue.

Officer Constantine stopped Snead at gunpoint. Snead said: “I didn’t have nothing to do with that.” Officer Constantine then heard four to six shots coming from the 3100 block of Woodland Avenue. Snead said: “See, they’re still shooting.” Officer Constantine proceeded to the 3100 block of Woodland Avenue, where he found Antonio Henderson and Isaac Durant on the sidewalk. Baltimore City Police Detective Oscar Requer testified that Michael Brooks gave police three different versions of the events of that night.

The State recalled Officer Constantine for the purpose of introducing the audiotapes of the police radio communications on the night of July 28, 1991. The State rested its case at 3:18 p.m. on Monday, November 28, 1991. Defense Case in Chief The defense proceeded on the theory that appellants were in the 3100 block of Woodland Avenue area but were fleeing from the area because a gun battle had ensued. Appellants cite as evidence Officer Constantine’s testimony that he heard gunshots in the area of 3100 block of Woodland Avenue when he encountered Snead.

Catherine Bennett testified that she was near the intersection of Park Heights and Woodland Avenue when she heard gunshots. Bennett testified that she witnessed Snead running, that gunshots were being fired at Snead, and that she had reported the gunshots to Officer Constantine. Bennett testified that Snead did not have a weapon. Laurie Ward testified that she was with appellants when the shooting started.

Ward testified that neither appellant had a gun. ³³⁶ Rebuttal Officer Constantine, then called by the State in rebuttal, contradicted Bennett’s testimony that she approached him to report the gunshots. The State then called Perry S. Knight as a rebuttal witness. Knight testified that he was the nephew of victim Antonio Henderson. Knight testified that, as a result of something said to him, he armed himself that night with a gun he kept hidden in the backyard of a vacant house.

Knight testified that the victims were walking on Woodland Avenue when Booze looked towards Park Heights as though he were giving a signal. At this point the defense objected that Knight’s testimony was improper rebuttal. In response to defense objections, the State argued that (1) everybody had testified to three bursts of gunfire, (2) that Knight “saw [Booze] shoot [Antonio Henderson] and then he saw [Snead] and [Booze] running up the street,” and (3) that after Knight “saw them shoot his uncle that he started firing at them and that was the third burst” of shots. The trial court ruled that much of Knight’s testimony was not rebuttal evidence, and that Knight should have testified during the State’s case in chief.

The trial court did find that Knight’s testimony as to the origin of the third burst of bullets, but only this testimony, was proper rebuttal. The trial court noted that the State knew about Knight before it rested and deliberately failed to disclose the witness. The trial court further noted that the State should have disclosed Knight to defense counsel. The State’s Attorney admitted that the State first became aware of witness Knight on the evening of Thursday, November 21, 1991, which had been during its case in chief and four days before Knight’s appearance.

The State admitted that it did not disclose the witness because it wanted to reserve Knight’s testimony for rebuttal. When the trial court questioned the State’s use of Knight in rebuttal, the State’s Attorney replied that “I could tell by the way they ³³⁷ were putting on their defense that they were going to try to say that there was a gun battle going on up the street— But I was not sure so I had to wait to see that was their defense.” The State apologized to the court for its erroneous belief that Knight could be used as a rebuttal witness. After ruling that Knight’s testimony was improper rebuttal, the trial court prompted the State to reopen its case in chief. The State then moved to reopen its case in chief.

The trial court granted the State’s motion. The trial court accepted the State's representation that it learned of Knight only after trial commenced. In allowing the State to reopen its case in chief, the trial court stated that the testimony was relevant and material and that the jury should be allowed to hear the testimony. The defense objected to the trial court using its discretion to allow the State to reopen its case in chief.

The trial court replied: Look. Their reasons are phony. I do not accept them. It is improper rebuttal and she is wrong and she should not have done it, but that does not mean that the jury has to be deprived of relevant evidence.

That is not the way to punish the State or the defense for that matter for not putting on evidence when they should have. The trial court permitted defense counsel to interview the witness. State’s Case in Chief Reopened On direct examination, Knight testified that he saw appellant Booze walk toward Antonio Henderson and pull out a gun. Before Knight could warn his uncle, another gunman began firing from an alley, and simultaneously Booze shot Henderson.

Both victims fell. Knight testified that he began shooting at Booze. Knight testified that he could see the sparks coming from the gun of the man in the alley. Knight testified that he did not see the second gunman.

Knight confirmed that he had first talked to police on the night of Thursday, November 21, 1991. ³³⁸ On November 26, 1991, appellants moved for a mistrial. That motion was denied. LEGAL ANALYSIS Appellants argue that the trial court erred in permitting the State to re-open its case in chief at the rebuttal stage and by allowing Knight’s testimony after finding that his testimony was not proper rebuttal