Daniel v. State

THIEME, Judge. On October 29, 1993, appellant Steven Daniel was convicted by a jury in the Circuit Court for Baltimore City of first degree murder, conspiracy to murder, and use of a handgun. He was sentenced to consecutive life sentences plus twenty ⁵⁸¹ years. Appellant appealed to this Court, and we reversed and remanded the case for a new trial.

Daniel v. State, No. 183, September Term, 1994, 101 Md.App. 719 (unreported). Appellant was retried in May of 1996. He was convicted of conspiracy to murder and acquitted of first degree murder. The court sentenced appellant to life imprisonment.

Appellant appealed to this Court, and we again reversed and remanded the case for a new trial. Daniel v. State, No. 1062, September Term, 1996, 116 Md.App. 734 (unreported). The second retrial took place in December 1998. Appellant was convicted of conspiracy to murder and was sentenced to life imprisonment.

Appellant appeals from that conviction and presents the following questions for our review: 1. Did the trial court err in allowing the lead detective to testify that, after he “received all the information,” he “eliminated” Sterling Bailey “as a suspect”? 2. Did the trial court err in allowing the State to comment that appellant’s silence at the time he was apprehended showed consciousness of guilt? We answer “no” to these questions and affirm the judgment of the trial court.

Facts In this appeal, both appellant and the State accept the facts as summarized by this Court in Daniel v. State, No. 1062, slip op. at 1-2. In our unreported opinion, we summarized the facts as follows: On 19 December 1992, appellant Steven Daniel, Maurice Osborne, and Sterling Bailey attended a party. At the party, Bailey allegedly overheard a conversation between Osborne and appellant in which Osborne stated he was upset with his girlfriend, Chaquista Spriggs, and wanted her killed. Earlier in the day, Spriggs had informed Osborne that she was seeing another man.

Osborne had previously agreed to pick Spriggs up from work and walk her home at 10:00 that evening. Appellant and Osborne planned that appellant would follow as Os ⁵⁸² borne walked Spriggs home from work. According to Bailey, appellant offered to kill Spriggs and make it look like a robbery gone awry by inflicting a non-fatal gunshot wound on Osborne. At the time of the conversation, Osborne was carrying a .9 millimeter gun.

Appellant left the party some time before 10:00 p.m. Around the same time, Osborne also left the party to pick up Spriggs when she got off work. After appellant and Osborne had left the party, Bailey left with Dorcena Douglas to go to Douglas’s house and check on her children. Bailey stayed at Douglas’s house for about 15 minutes and then returned to the party.

At approximately 10:15 p.m., Spriggs was fatally shot in the head; Osborne was shot in the shoulder, but survived. Although Bailey testified that he believed that Osborne and appellant were joking when they discussed killing Spriggs earlier in the evening, Bailey became concerned when Osborne had not returned to the party by 11:00 p.m. Bailey learned that a shooting had occurred near Spriggs’s place of work and that the victims were taken to Sinai Hospital. Around midnight, Bailey visited Osborne at the hospital and learned that Spriggs was dead.

When Bailey returned to the party, he was allegedly told by appellant in detail how he killed Spriggs and shot Osborne. At approximately 2:00 a.m., appellant walked Douglas home from the party and slept on her couch. Douglas testified that she saw a gun in appellant’s coat pocket. Approximately two months later, appellant was arrested and charged with murder in the first degree, conspiracy to commit murder, and handgun charges.

Discussion Appellant’s first argument on appeal is that the court erroneously permitted the investigating police officer, Sergeant Thomas Pellegrini, to testify on redirect examination as to his “personal opinion” about Bailey’s involvement in the case and his general veracity. Specifically, appellant contends that the officer should not have been permitted to answer the State’s ⁵⁸³ question regarding Bailey’s “status” in the investigation. We disagree and find that Sergeant Pellegrini’s testimony was properly admitted. Standard of Review Generally, the scope of examination of witnesses is a matter left largely to the discretion of the trial court; we will not disturb the court’s determination absent a clear abuse of discretion.

See, e.g., Green v. State, 127 Md.App. 758, 764 , 736 A.2d 450 (1999) (citing Conyers v. State, 354 Md. 132 , 729 A.2d 910 (1999); Oken v. State, 327 Md. 628, 669 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993); Trimble v. State, 300 Md. 387, 401 , 478 A.2d 1143 (1984), cert. denied, 469 U.S. 1230 , 105 S.Ct. 1231 , 84 L.Ed.2d 368 (1985)). The trial judge’s discretion in controlling the scope of redirect examination is wide. See Bailey v. State, 16 Md.App. 83, 110-111 , 294 A.2d 123 (1972). Even inquiry into new matters not within the scope of cross-examination may be permitted, and a party is generally entitled to have his witness explain or amplify testimony that he has given on cross-examination and to explain any apparent inconsistencies.

Feeney v. Dolan, 35 Md.App. 538 , 371 A.2d 679 , cert. denied, 280 Md. 730 (1977). The judge’s discretion is particularly wide “where the inquiry is directed toward developing facts made relevant during cross-examination or explaining away discrediting facts.” Bailey, 16 Md.App. at 110-111 , 294 A.2d 123 (citing Mills v. State, 12 Md.App. 449 , 279 A.2d 473 , cert. denied, 263 Md. 717 (1971)). Cross Examination In his brief to this Court, appellant asserts that “[t]he State’s theory of the case was that its witness, Sterling Bailey, truthfully recounted Appellant’s participation in the conspiracy and murder of the victim, and the wounding of her jilted boyfriend Maurice Osborne to cover up the conspiracy to murder her.” The defense theory, however, “was that it was actually Sterling Bailey who conspired with Osborne ⁵⁸⁴ and committed both shootings.” Consistent with that theory, defense counsel’s cross-examination of Sergeant Pellegrini primarily focused on his interviews with Bailey. Counsel repeatedly asked the officer whether he believed Bailey’s statements {e.g., “[Y]ou didn’t really believe that, did you?”) and whether Bailey was a suspect in the crime {e.g., “[Y]ou began to say to him that, in fact, he was a suspect.

Didn’t you?”). The following excerpts from Sergeant Pellegrini’s cross-examination further illustrate that line of questioning. [DEFENSE COUNSEL]: If you’re talking on the 26th, 27 th, now you’re looking for [Bailey] maybe even as a suspect or a participant because you know the two of them are together during the day. I’m not saying he is a suspect— [ASSISTANT STATE’S ATTORNEY]: Objection, Your Honor. There’s a question.

THE COURT: Let him answer. Try to keep it at one question. [DEFENSE COUNSEL]: Okay. You now know that he, Mr. Bailey[,] probably knows something and might be involved. Correct?

THE COURT: You need to clarify on what day. I think that’s the problem. [SGT. PELLEGRINI]: Yeah. [DEFENSE COUNSEL]: On the 26th or 27th of December. I’m sorry. [SGT.

PELLEGRINI]: Let me try to make this clear. On the 21st, I get the name of Sterling as being with him or at the party or wherever it was. Now I don’t set out immediately to track him down and bring him in— Q: I understand. A: —because as I recall, I’m on my midnight shift, it’s close [to] Christmas— Q: I understand.

A: —the 21st I do the interview— ⁵⁸⁵ Q: And you’ve got the holiday. I understand all those reasons. A: —and the next day comes through and I’m trying to locate him. It’s not like he’s a suspect and I have to make an arrest.

Q: No, I understand. Defense counsel also asked the officer numerous questions that required him to give his opinion of Bailey’s credibility and to speculate about Bailey’s true knowledge of the crime. Defense counsel acknowledged, through his questions, that the officer would be making credibility determinations based on his experience as an investigator. [DEFENSE COUNSEL]: . .. you’re an experienced homicide detective, you sat down with him, and you took a statement from him, didn’t you? You questioned him. [SGT.

PELLEGRINI]: Yes, I— Q: Interrogated him. A: I took some notes, yeah. Q: Okay. But notes are just as I take notes here, you’re memorializing what someone said.

You want them to be accurate, is that correct? A: Well, sure. I don’t want to mislead myself. Q: Exactly.

And you want to get as much information as you can. Correct? A: Yes, Sir. Q: And for two reasons.

One, the more information you get from the witness on day one, when you go back on day two, if he says something differently, those are inconsistencies that help you determine their believability and credibility to find out what’s going on. You’re an investigator. Q: ... Now as you said before, conflicting statements of witnesses make you suspicious of their credibility.

Correct? Their believability. A: Exactly. Yeah. ⁵⁸⁶ Q: Okay.

Now it’s fair to say that this statement has a lot of untruth in it. Doesn’t it? [ASSISTANT STATE’S ATTORNEY]: Objection, Your Honor. THE COURT: Overruled. [DEFENSE COUNSEL]: It’s a lie, isn’t it? [ASSISTANT STATE’S ATTORNEY]: Objection, Your Honor. THE COURT: Overruled.

You may answer. [SGT. PELLEGRINI]: I think the stuff that’s there is true. It’s just not complete with— [DEFENSE COUNSEL]: Not complete. A: with why he knew all the information.

It’s just not the full story. [DEFENSE COUNSEL]: Real simply here. This person did not come forward to you and tell you the truth, did they? A: He didn’t tell the whole truth. But the statement is pretty much accurate.

And I don’t see a lie in it. I just don’t see— he didn’t explain how he had all the information that he gave me. Q: Did you ask him? A: I wasn’t — when the one in particular thing about the description of the girl being shot in the head, that troubled me.

A: At that point, I’m beginning to think, you know, how would he know that? There’s a good possibility that he knows it because he was there. Q: And that he was the shooter. A: Okay.

And then I had to investigate and satisfy myself about that troubling part. And I satisfied myself through my investigation that that was not the case. ⁵⁸⁷ Redirect Examination Following defense counsel’s cross-examination, the State conducted a redirect examination of Sergeant Pellegrini. On appeal, appellant challenges the following portion of the State’s redirect examination: [ASSISTANT STATE’S ATTORNEY]: I believe [defense counsel] asked you about the 21st of December, when you got Mr. Bailey’s name. [SGT. PELLEGRINI]: Yes.

Q: I believe that’s when you said he was not a suspect. A: That’s correct. He was a person that was there and had been with Maurice pretty much all day. So he was a crucial source of information.

But certainly I had no information that indicated he was a suspect at that time. [ASSISTANT STATE’S ATTORNEY]: Well in terms of your investigation, even after you received all the information that you did, what was Mr. Bailey’s status? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. [ASSISTANT STATE’S ATTORNEY]: What was his status? [SGT. PELLEGRINI]: He was eliminated as a suspect. [DEFENSE COUNSEL]: Objection. THE COURT: Come to the bench.

During the bench conference, the court asked defense counsel to state the basis of his objection to the State’s question. The following colloquy ensued: [DEFENSE COUNSEL]: Calls for a conclusion which it’s all based upon hearsay. And it’s a conclusion, I don’t think he can give a conclusion of whether someone committed a crime or didn’t commit a crime. THE COURT: I took his testimony as he can only give it based on him as the investigator.

As far as he’s concerned, he was eliminated as a suspect. ⁵⁸⁸ [DEFENSE COUNSEL]: But the problem with him being an investigator is it doesn’t just — things he observes, it’s also information he receives from other people, all of which has a hearsay basis to it, that can be got from [another witness], which means that he’s making a conclusion based upon hearsay. So that conclusion is based upon inadmissible evidence through this witness. THE COURT: What he draws upon to make his decisions as an investigator as to arrest or not arrest, is not to adhere to the same rules that we do here. This is not testimony he relied upon that was inadmissible.

He relied upon all kinds of information to make his determination. You can’t put all of that under the hearsay microscope. Not for his purposes,. The court permitted Sergeant Pellegrini to testify that Bailey was eliminated as a suspect.

On appeal, appellant maintains that the court’s decision to admit that testimony was error. As we begin our analysis, we note at the outset that implicit in appellant’s argument that Sergeant Pellegrini’s testimony was “based upon hearsay” is the assumption that the basis for the officer’s testimony was apparent. On the contrary, the State did not inquire as to what formed the basis for the officer’s testimony that Bailey was “eliminated as a suspect.” At trial and on appeal, appellant assumes that the officer’s testimony was based on his interviews with Bailey. The officer testified on cross-examination, however, that after interviewing Bailey his suspicions were raised and he needed to investigate further.

After farther investigation, he was satisfied that Bailey was not a suspect. Therefore, the officer’s own testimony, elicited by the defense, suggests the opposite of appellant’s assumption — the ultimate “conclusion” that Bailey was “eliminated as a suspect” was not based on the officer’s conversations with Bailey. In ruling on the objection, however, the court appears also to have assumed that Bailey’s statements formed the basis for the officer’s testimony. Therefore, we will accept that premise for purposes of our analysis. ⁵⁸⁹ Hearsay Assuming Sergeant Pellegrini’s testimony was based on Bailey’s statements, appellant’s contention that the testimony was “based upon hearsay” rests on the assertion that Bailey’s statements were “hearsay.” This is simply not the case.

As the trial court correctly reasoned, what the officer “draws upon to make his decisions as an investigator as to arrest or not arrest, is not to adhere to the same rules that we do here.” In other words, an interviewee’s statements to an investigating police officer are not “hearsay” unless and until they are offered into evidence for their truth. See Maryland Rule 5-801. In this case, the objected-to testimony of the officer, that Bailey was “eliminated as a suspect,” did not offer even remotely any of Bailey’s statements into evidence. (Indeed, as we have discussed, the testimony may not even have been based on Bailey’s statements.) Because Bailey’s statements were not out-of-court statements “offered in evidence to prove the truth of the matter asserted,” they were not “hearsay,” and the officer’s testimony was not “based upon hearsay.” Therefore, the trial court did not err in overruling defense counsel’s objection on that basis.

Officer’s “Conclusion” We further disagree with appellant’s contention that Sergeant Pellegrini’s testimony was inadmissible because it amounted to “a conclusion of whether someone committed a crime or didn’t commit a crime.” We cannot infer an officer’s ultimate conclusion as to whether a particular individual committed a crime simply from his testimony about the status of an investigation: here, that a witness “was eliminated as a suspect.” Without more information, such as (1) the basis for eliminating Bailey as a suspect, (2) an indication that the decision was Sergeant Pellegrini’s, or (8) that Sergeant Pellegrini agreed with the decision, drawing such an inference is simply unwarranted. Moreover, even if we could infer that Sergeant Pellegrini was drawing “a conclusion of whether someone commit ⁵⁹⁰ ted a crime or didn’t commit a crime,” we note that appellant provides no support for the assertion that such testimony is improper. Indeed, police officers routinely testify about the conclusions they draw from their investigations that lead them