Green v. State

MARVIN H. SMITH, Judge, Retired, Specially Assigned. Appellant, Russell Green (Green), was convicted by a Baltimore City jury of second degree murder, use of a handgun in the commission of a felony or crime of violence, and carrying a handgun. His conviction for carrying a handgun was merged and he was sentenced to twenty-five years of imprisonment for murder and twenty-five years concurrent imprisonment for use of a handgun. He raises six issues on appeal: I. Did the trial court err in admitting “other crimes” evidence?

II

Did the trial court err in refusing to permit appellant to call a witness for the purpose of rehabilitating his credibility when that witness had been present in the courtroom during trial?

III

Did the trial court abuse its discretion in refusing to grant appellant a continuance to obtain evidence that became relevant only at the conclusion of trial?

IV

Did the trial court impose an unreasonable limit on the length of closing argument? ⁷⁶³ V. Did the reasonable doubt instruction minimize the State’s burden of proof?

VI

Did the trial court err in permitting the State, without notice to the defense, to introduce at sentencing evidence of a prior shooting allegedly committed by appellant even though that shooting had not resulted in a conviction? We shall affirm the judgment of conviction but vacate the sentence. Accordingly, the case will be remanded for a new sentencing proceeding. We shall set forth such facts as are relevant to each of the issues raised as we discuss those contentions.

I. Green testified during cross-examination that he had never before been involved in a shooting. The prosecutor began to ask if he knew a certain man. The defense objected. When it became apparent that the State was trying to elicit testimony that Green had been arrested, but not convicted of shooting that man, and that the State’s only evidence was police reports, the prosecutor withdrew the question.

A short while later, the prosecutor asked Green a series of questions about why he had not gone to the police with his account of the victim’s death. After Green said that he had wanted to go to the police, the following transpired: [The State] You wanted to but some overwhelming power kept you from sharing your side? [Appellant] No, I just knew what was going to happen. Q. It happened to you before? Green’s objection was overruled and the State continued: Q. Had that happened to you before?

How did you know that was going to happen? A. Yes, I got locked up before. At that point, the questioning turned to Green’s statement to police. ⁷⁶⁴ On appeal, Green urges us to connect the question about his knowledge of what would happen if he went to the police and his answer indicating that he had been arrested before with the State’s previous attempt to elicit testimony about the shooting in which Green had been arrested but not convicted. He argues that the State was pursuing its initial line of questioning “in an oblique fashion,” and that the testimony that Green had been “locked up” improperly established that he had committed other crimes, wrongs, or acts.

Md. Rule 5-404(b). We do not see the State’s question as an attempt to introduce evidence it claimed to have abandoned. Instead, the State properly asked Green to explain what he meant when he said that he knew what would happen if he told the police his version of the incident. While that line of questioning could have encouraged Green to recount other instances in which he had been disbelieved by police, it did not necessarily ask about other crimes or bad acts actually committed by him, nor did the admission that he was “locked up” prejudice him.

On direct examination Green had testified that he did not go to police after the shooting because he thought they would not understand what happened and would lock him up. In that context, his response to the State’s question was an attempt to bolster his position that he had a valid reason for not going to the police. The scope of examination of witnesses is a matter left largely to the discretion of the trial court and no error will be recognized in the absence of a clear abuse of discretion. Conyers v. State, 354 Md. 132 , 729 A.2d 910, 925 (citing Oken v. State, 327 Md. 628, 669 , 612 A.2d 258, 278 (1992), cert. denied 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993), and Trimble v. State, 300 Md. 387, 401 , 478 A.2d 1143, 1150 (1984), cert. denied, 469 U.S. 1230 , 105 S.Ct. 1231 , 84 L.Ed.2d 368 (1985)).

Here, the trial court permitted the State to ask Green why he believed the police would not credit his version of the shooting. That his answer included a reference to another time when he was “locked up” does not suffice to ⁷⁶⁵ establish improper admission of other crimes evidence. There was no abuse of discretion.

II

Green testified in his defense that he had been carrying a gun prior to the shooting because he had been shot five times in a previous incident and “was scared that somebody was trying to take [his] life again.” On cross-examination the State asked him whether he ended up in the hospital on that occasion, to which an affirmative response was given. He was then asked whether the hospital records were present in court. He said that they were not. Green said he had been in the hospital about a week, that he was shot twice in his leg and once in his arm, and that he had no idea who did it.

Defense counsel brought out on redirect that Green did not have the medical records because he “didn’t have no means of calling the people to let them know to bring [his] medical records down or give them to [him] or mail them to [him].” The issue was revisited on recross-examination. Green alleges in his brief, “Because the prosecutor had made an issue of the Appellant’s failure to introduce medical records corroborating his testimony, defense counsel requested the court’s permission to call [as] a witness on that issue the Appellant’s girlfriend, who had been sitting in the courtroom during the trial.” After the defense request the record then is: [STATE] I would object to the girlfriend, Your Honor. The issue isn’t whether or not he was shot. He’s shown his scars, that’s not the question.

It’s how badly he was injured, and she cannot testify to whether or not it was life threatening. [THE COURT] Well, she’s been in the courtroom. She’s been educated as to what the issue is. I understand that you didn’t anticipate this, but even so, I think on balance I sustain the objection to calling her. [DEFENSE COUNSEL] Well, I anticipate I probably will have to try to scout up some additional witnesses tonight to ⁷⁶⁶ come in and to testify as to how long he was in Shock Trauma and how long he was in University and what his condition was since this has all now been introduced into the case for some reason. Green assigns as error the failure to permit the testimony of the girlfriend.

There was no formal proffer of what the witness would say other than the statement that we have quoted to the effect that she could testify how long he was in Shock Trauma, how long he was in University Hospital, and his condition since the time of those hospitalizations. We note that in Mack v. State, 300 Md. 583, 603 , 479 A.2d 1344 (1984), the Court of Appeals said, “[T]he question of whether the exclusion of evidence is erroneous and constitutes prejudicial error is not properly preserved for appellate review unless there has been a formal proffer of what the contents and relevance of the excluded evidence would have been.” (citing Hooton v. Kenneth B. Mumaw Plumbing & Heating Co., 271 Md. 565, 571 , 318 A.2d 514, 517 (1974); Keys v. Keys, 251 Md. 247, 250 , 247 A.2d 282, 284 (1968); Katz v. Simcha Co., Inc. 251 Md. 227, 239 , 246 A.2d 555, 562 (1968); Fowler v. Benton, 229 Md. 571, 575 , 185 A.2d 344, 347 (1962); and Maryland Rule 3-517(c) (formerly Maryland Rule 522(b))). We note that even in his brief Green fails to set forth what his girlfriend’s testimony would have been. In this case Green was permitted to demonstrate his wounds to the jury.

In a different context — the issue of whether there was sufficient evidence to generate a self-defense instruction in a homicide prosecution — the Court of Appeals has indicated that the defendant’s own testimony that he had a subjective perception of the need to defend himself generates the instruction “though it may be difficult, to accept. ...” Dykes v. State, 319 Md. 206, 222 , 571 A.2d 1251 (1990). That is not exactly our situation, even though self-defense instructions were given. Green’s goal was to persuade the jury that he carried the gun because he had a subjective fear of danger from somebody, if not specifically ⁷⁶⁷ from his victim. If his own testimony would have been sufficient to generate an instruction on self-defense, then, in this case, he did not have to introduce further corroboration of his claim that he had been shot.

Accordingly, even if there had been a proffer that the girlfriend would have testified that he had been shot, that evidence essentially would have been just more corroboration. The decision to permit Green’s girlfriend to sit through trial rather than to be sequestered can be seen as one of strategy. Defense counsel had to decide whether this potential witness was sufficiently valuable to corroborate that one point, thus requiring her to be sequestered in case the need arose for her testimony. We believe the issue was not properly preserved, but, if it had been, the court’s ruling was correct.

The State did not contest the fact that Green had been shot. He had shown his wounds to the jury. We find no error.

III

Defense counsel sought a continuance so that he might subpoena Green’s medical records from Shock Trauma. The trial judge said: “If you can get them here in the morning, the case will still be open. If you can’t get them here in the morning, then the case isn’t open or won’t be open, but we’re not going to hold it open for that.” The following day Green’s attorney informed the court that hospital personnel had advised him it would take at least 48 hours to produce the medical records. A continuance was requested until the following Tuesday in order to obtain the records.

This motion was denied. Its denial constitutes the third contention presented on behalf of Green. We bear in mind that in Wilson v. State, 345 Md. 437 , 693 A.2d 344, 351 (1997), the Court said: [T]he decision to grant a continuance ... affects the convenience of the court, the jury, the prosecution, other wit ⁷⁶⁸ nesses, and possibly other cases scheduled for trial. Accordingly, the trial court is vested with a significant amount of discretion whether to grant the necessary continuance to allow [a] missing witness to be located, subpoenaed, or apprehended, and reversal of a judgment of conviction is appropriate only upon a finding that that discretion has been abused.

Id. at 451 , 693 A.2d at 350 . See also State v. Brown, 342 Md. 404, 420 , 676 A.2d 513 (1996) (pertaining to a decision to permit discharge of counsel after trial has begun). We accept the contention of the State that there was no implication by it to the effect that the prior shooting was a fabrication and its further contention that as a consequence there was no need to refute the fact for fabrication. The State contends that it “merely sought to cast doubt on Green’s claim that the severity of his wounds led him to carry a gun, and that, at the time of Giles’s murder, he was fearful of another life threatening attack.” We note that in closing argument defense counsel told the jury, “[T]he reason why those records aren’t here