DeLeon v. State

ADKINS, Judge. Ayinde DeLeon appeals his conviction of first-degree assault and conspiracy to commit first degree murder of a fellow prisoner in the Maryland Department of Corrections (“DOC”). DeLeon contends that his trial was prejudiced by the admission of evidence that he was associated with the “Bloods” gang. He asserts that “[ejvidence of gang membership and activity was not relevant to the facts of [DeLeonj’s case, was highly prejudicial, and was admitted without sufficient factual basis or nexus to the crimes as alleged.” This prejudice, he argues, arises from the risk that jury members will be influenced to convict him because gangs invoke images of violent criminal activity.

We agree with the State’s contention that ¹⁹ DeLeon failed to argue relevance or prejudice at trial about the evidence he now challenges and, accordingly, we will not consider those issues. DeLeon’s remaining arguments for disallowing gang evidence are limited in scope, and do not reveal trial court error. FACTS AND LEGAL PROCEEDINGS This case arises from a violent prison brawl that broke out at the Jessup Pre-Release Unit (“JPRU”) of the Maryland DOC on June 30, 2006. The animosities giving rise to this altercation began a few months earlier at the Brockbridge Correctional Facility where Yusef Payne and victim Troy Fennel were both serving prison terms.

Fennel testified that a dispute over a pair of tennis shoes led Payne to stab him in the head and assault him with a chair in the winter of 2006. This incident prompted Fennel’s transfer to the Central Laundry prison facility. On June 30, 2006, Central Laundry inmate and alleged “Bloods” gang member Maurice Brown threatened Fennel because he “told on one of [Brown’s] friends.” This resulted in Fennel’s same-day transfer to the JPRU where, in a stroke of ill luck, Payne was also incarcerated. Within ten minutes after Fennel arrived at his dormitory, petitioner Ayinde DeLeon approached him, asked why he “told on” his friends, and punched him in the face.

Also present was Payne, who attempted to stab Fennel before he ran away in search of help. Fennel was unable to find someone to come to his aid and less than 45 minutes later, he was approached in his dormitory by yet another knife-brandishing inmate, Clister King. Fennel retreated from King and was then assaulted by DeLeon and Payne as he attempted to jump over the wall to safety. DeLeon stabbed Fennel in the back of his head and all three inmates worked in tandem, stabbing him all over his body.

Payne stabbed Fennel in the eye, told the other two to get out of the way, and repeated the words “kill him, kill him, kill him.” Correctional Officer Qwan Finch heard someone calling from Fennel’s dorm, entered, and saw two individuals assault ²⁰ ing Fennel. Officer E. Davis came to Fennel’s aid and DeLeon, who had run away, was soon placed in handcuffs. DeLeon was charged with attempted first-degree murder, first-degree assault, second-degree assault, reckless endangerment, and conspiracy to commit first degree murder. His trial commenced November 20, 2007 in the Circuit Court for Anne Arundel County.

The State’s trial theme was that the close organizational ties between DeLeon, King, and Payne served as the motive for a revenge killing. The jury heard testimony that identified DeLeon, King, and Payne as prison comrades who frequently donned red clothing and accouterments, a color associated with the “Bloods” gang. Responding Officer E. Davis testified that when she discovered Fennel in a pool of blood, Fennel said that the “Bloods did it to me. DeLeon, Payne, and King.” After a four-day trial, the jury delivered a verdict of guilty of first-degree assault and conspiracy to commit first degree murder. 1 DeLeon timely appealed his conviction to the Court of Special Appeals.

We granted certiorari on our own initiative before the intermediate appellate court decided the appeal to consider the following question: “Did the lower court err in allowing the admission of evidence of gang membership, association, and activity against [DeLeon]?” DISCUSSION Standard Of Review The determination of whether evidence is relevant is a matter of law, to be reviewed de novo by an appellate court. See J.L. Matthews, Inc. v. Md.-Nat’l Capital Park & Planning, 368 Md. 71, 92 , 792 A.2d 288, 300 (2002)(“[W]hen the trial judge’s ruling [on the admissibility of evidence] involves a ²¹ legal question, we review the trial court’s ruling de novo.”). When evidence is relevant, this Court grants wide latitude to trial judges’ decisions on its admissibility. See Merzbacher v. State, 346 Md. 391, 404-05 , 697 A.2d 432, 439 (1997)(“Once a finding of relevancy has been made, we are generally loath to reverse a trial court unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion.”).

A ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. Evans v. State, 396 Md. 256, 277 , 914 A.2d 25, 37 (2006), cert. denied, — U.S.-, 128 S.Ct. 65 , 169 L.Ed.2d 53 (2007). To constitute an abuse of discretion, the decision “has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id. (citation and internal quotation marks omitted).

I. Preservation Of DeLeon’s Relevancy And Prejudice Challenges “[A]n appellate court ordinarily will not consider any point or question ‘unless it plainly appears by the record to have been raised in or decided by the trial court.’ ” Robinson v. State, 404 Md. 208, 216 , 946 A.2d 456, 461 (2008) (citations omitted). In Fitzgerald v. State, we explained that the primary purpose of the rule is two-fold: (a) to require counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings, and (b) to prevent the trial of cases in a piecemeal fashion, thus accelerating the termination of litigation. 384 Md. 484, 505 , 864 A.2d 1006, 1018 (2004) (citations and internal quotation marks omitted). In discussing the preservation issue, we shall address each of the contested pieces of ²² gang-related evidence presented at trial and examine the objections made by DeLeon. The Bloods Did It To Me The first piece of gang evidence was offered when the State asked Prison Officer E. Davis about what the victim told her when she found him.

DeLeon immediately offered the following objections: [Defense Counsel]: What the State is trying to get at is I guess an excited utterance with reference to this. I have a couple of objections. One, the victim is going to be testifying—testify [sic] what he said or didn’t say at that point. Secondly, there is some reference to gangs which—carefully. —tip-toe around to it.

And I don’t know if he is going to be saying something about the Bloods did this to me, which has been provided—I would be objecting to his reference to that. And thirdly, I don’t think you can set a foundation for excited utterance by other hearsay. This objection led to a colloquy in which defense counsel furnished additional grounds for his objection 2 and the prosecutor defended her line of questioning: [Prosecutor]: Well that is not true. An excited utterance shows that the person doesn’t have time to reflect, that they are saying things in the throes of the emotional environment.

He is upset. He thinks he is dying. He is asking for help---- [I]t’s something that the courts have found is reliable because a person doesn’t have time to sit back and make something up. Also he is going to tell who has assaulted him.

And the gang evidence in the case that I have [Ayala v. State, 174 Md.App. 647 , 923 A.2d 952 , cert. denied, 401 Md. 173 , 931 A.2d 1095 (2007) ] says that gang evidence is admissible, not ²³ to show that someone is a bad person, but to show motive for the crime. The reason why an otherwise unthinkable crime has occurred is because the gang evidence says you can use it to show why people are acting together. Why they were acting to attack somebody. In this case we are saying between four to five people attacked this man simply because they were a member of a gang. [Defense Counsel]: If you are going to get into gangs you have to show in that case a basis of knowledge.

You can’t just say that it is a gang, you have to say why he would know that it is a gang. That is why it would be—through her. It may be that they can set the foundation through the victim as to how he knows Mr. DeLeon. But to get to bring it in through her, then you avoid the basis of that case and that decision. [Prosecutor]: But the reason I am bringing in what he says is not to prove that this person is a member of a gang.

I haven’t gotten there yet. I am bringing in the excited utterance that the victim was saying. [Court]: ____It could be an excited utterance. —certainly to have been stabbed multiple times—I mean how much more excited can you get. [Defense Counsel]: Well I think once they lay that foundation that probably is an excited utterance. What she was laying a foundation was saying what did he say. And you can’t say what did he say to clear the excited utterance about something like that.

You can’t use the hearsay to create the exception to the hearsay. ²⁴ Now secondly, it is the gang point that I object to because that is the reliability and basis of knowledge. We have no understanding—we have no basis of why he is saying it’s the Bloods. I think she probably could—if he tells her who the people are when she sets the foundation of the excited utterance. [Court]: I don’t think it is necessarily being offered for the purpose of even showing that the Bloods are a gang. It is an identification issue. [Defense Counsel]: I will raise the objection without interrupting[.][ 3 ] The State then offered testimony to support its contention that Fennel made a spontaneous excited utterance: [Prosecutor]: Was he calm as he said this? [Davis]: No, he was like yelling at us.

Help, help, help, I’m in pain, I’m in pain. My eye, my eye. Help, help, somebody help. Officer Davis’s most damning testimony followed: [Prosecutor]: What did he say to you? [Defense Counsel]: Objection for reasons at the Bench. [Court]: Overruled. [Davis]: He said I’m going to tell you all who did it because if I die, I want you all to know who did this to me.

And he was like the Bloods did it to me. DeLeon, Payne and King. (Emphasis added.) The parties disagree about the nature of DeLeon’s objection expressed during this colloquy. Under Maryland Rule 4-323(a), “The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs.” Thus, a party basing an appeal on a ²⁵ “general” objection to admission of certain evidence, may argue any ground against its inadmissibility.

Boyd v. State, 399 Md. 457, 475-76 , 924 A.2d 1112, 1122-23 (2007). DeLeon contends that his objection to Officer Davis’ testimony qualifies as a “general” one, and thus preserves his appellate arguments that the gang membership evidence was not relevant, and was highly prejudicial. The flaw in DeLeon’s theory is revealed by examination of his trial objections, which went too far to be a general objection and not far enough to preserve his arguments on appeal. An objection loses its status as a “general” one “where a rule requires the ground to be stated, where the trial court requests that the ground be stated, and ‘where the objector, although not requested by the court, voluntarily offers specific reasons for objecting to certain evidence [.]’ ” Id. at 476 , 924 A.2d at 1123 (citations omitted, emphasis added).

As demonstrated by the transcript passage above, counsel chose a more forceful approach than merely offering a general objection and instead advanced several reasons to support DeLeon’s objection to Davis’ recounting of the victim’s incriminating declaration. Thus, the objection was not a “general objection” under the rule stated in Boyd and, accordingly, DeLeon is limited to the grounds explicitly raised in the trial court. DeLeon asserts that his relevancy objection was raised below; not by him, but by the State, when the prosecutor offered Ayala v. State, 174 Md.App. 647 , 923 A.2d 952 , cert. denied, 401 Md. 173 , 931 A.2d 1095 (2007) as a case supporting admission. After DeLeon made a foundation objection to the State’s question about DeLeon belonging to the Bloods, the prosecutor cited Ayala to rebut the objection, saying, “[T]he case I have says that gang evidence is admissible, not to show that someone is a bad person, but to show the motive for the crime.” In Ayala , the Court of Special Appeals considered whether testimony of gang involvement was prohibited because it was introduced to show bad character or prior bad acts in violation ²⁶ of Maryland Rule 5-404(b).

The court concluded that evidence of Ayala’s gang membership was highly probative as to his motive to kill the victim, who was a member of a rival gang, and was not unduly prejudicial. Ayala, 174 Md.App. at 664 , 923 A.2d at 962 . We do not consider the State’s mention of Ayala sufficient to preserve DeLeon’s appellate objection that the gang evidence was prejudicial and not relevant. The colloquy between the court and counsel set forth above reveals that the thrust of DeLeon’s objection was that the State needed to submit evidence that he was a gang member, before they introduced the victim’s statement that “the Bloods did it to me.” He even characterized it as a “foundation” objection.

He did not argue, as he does here, that any gang evidence was prejudicial because it conjured up criminal violence in the jury’s mind. The trial court was necessarily focused on the grounds for DeLeon’s objection, and not on whether mention of the Bloods was “bad character” evidence or whether the jury would be unduly