James v. State

MEREDITH, Judge. A jury in the Circuit Court for Baltimore City convicted Rienaldo Bernard James, appellant, of first-degree assault, illegal possession of a firearm by a felon, use of a handgun in the commission of a crime of violence, and carrying a handgun. ²³⁸ On April 8, 2008, the trial court sentenced appellant to twenty-five years’ incarceration for the first-degree assault, and a concurrent term of five years, without parole, for the illegal possession. The trial court also sentenced appellant to ten years in prison for the firearm use conviction, and suspended the execution of this term in favor of three years’ probation. The count for carrying a firearm was merged.

Appellant raises three issues for our consideration, which we have recast as follows: 1 1. Whether the trial judge committed plain error in the manner by which he conducted voir dire in the jury selection process. 2. Whether the trial court erred by denying appellant’s motion to suppress identification testimony of one witness. 3. Whether the trial court abused its discretion by overruling the defendant’s objection to a statement made during the prosecutor’s rebuttal closing argument.

For the reasons set forth below, we shall affirm. Background This case arose from an altercation that took place on the evening of December 23, 2006, at the Hollinswood Inn, which is located in the 2800 block of Annapolis Road, Baltimore. Bobby Lewis Trent, who was a shooting victim that evening, testified that he went to the Hollinswood Inn with his cousin, Rico Blick. Trent had left work between 8 and 9 p.m., and he was joined by some friends at the Inn to drink and listen to music. ²³⁹ Trent recalled that appellant — whom Trent identified in open court — walked into the Inn.

According to Trent, appellant “started to get all loud[,]” and “[s]omehow” got into an altercation with Trent’s cousin Tavon. During this disturbance, appellant struck one of Tavon’s friends, and “took him [the friend] out of the bar.” After the appellant “threw [Trent’s] cousin’s friend out of the bar,” appellant came back inside “in a rage,” and announced: “By the way, whoever don’t know me my name is Rienaldo.” Trent did not know appellant, had never seen him previously, and had never been to that bar before that night. On cross-examination, Trent revised his testimony and stated that appellant had exclaimed that his name was “Nardo.” Later in the evening, another altercation broke out in the bar. Trent was watching another cousin shoot pool when he noticed a “guy getting hit in the head with mad [sic] bottles, pool balls, anything.” Appellant was involved in this affray, which Trent described as “chaos.” Trent did not know who started the fight, but he added that appellant was, again, “in a rage.” Trent suggested to his cousin, “Let’s get out of here.” Trent testified that he felt threatened, and as he left, he looked “Mr. Nardo in his eye” and said, “Man, I’m gone.” As he looked back, Trent saw that appellant was holding a silver handgun.

Trent started running, fearing for his life as he heard gunfire. Trent testified that two men shot at him, although he could only see “Mr. Nardo, because I mean, his presence and the gun — it’s plain and simple.” Trent and one cousin were outside of the bar at this point, while another cousin had gone back inside to fetch his keys. When he saw the handgun, Trent started to run away, and was wounded by one of the “[m]ultiple shots” that were fired. An ambulance responded, and Trent was rushed to the hospital.

He spoke with a detective both during the trip to the hospital and while he was in his room. On December 26, 2006, while convalescing at the hospital, Trent viewed a photo array and, in a “split second,” selected appellant’s photograph. ²⁴⁰ He described the photo as that of the person who shot him. Trent admitted on cross-examination that he had consumed “like between four or five” beers that evening, but claimed that he was “focused to everything that happened that night.” One of Trent’s cousins, Rico Blick, came forward as a surprise witness at trial. The appellant’s objection to his testimony will be set forth more fully below.

Blick testified that on the evening of December 28, 2006, his cousin Bobby Trent urged him to join him for a night out. At first, Blick was reluctant to go out, but Blick then suggested they go to the Hollinswood Inn, stating that he knew “one little chill spot where [he knew] won’t be too much drama there[.]” Blick, Trent, Blick’s brother-in-law, and two of Blick’s co-workers went to Hollinswood Inn. Once there, Blick and Trent had some drinks and shot some pool. Blick recalled that, after about a half hour, one of his co-workers came from “out of nowhere,” approached Trent, and said “I’m about to get out of here, I think that guy right there, Mr. Nardo, I think he got a gun.

So I’m just going to go ahead and leave.” At this, “Mr. Nardo comes, loud boisterous, [and said] ‘Don’t be telling no more fucking body about who I am, they don’t know me. You know what I mean, don’t be telling nobody about me and nothing like that, matter a fact, roll out.’ ” Blick’s co-worker told them that he would just leave, and did so. The co-worker was “escorted” out of the bar by appellant. When appellant came back inside the bar, appellant announced: “If anybody don’t know me my name is Nardo.

This is how I get down, I gets down, my name is Nardo.” This was followed by silence. The music stopped as everyone appeared to turn and focus on “Nardo.” After a moment, some men at the bar said, “Okay, we know who you are, turn the music back on,” and the music resumed. Trent told Blick that he felt uneasy about staying. Blick reassured his cousin, explaining that everything was calm, and Blick persuaded Trent to stay a while longer.

After “half an hour,” ²⁴¹ there was another commotion in the bar. Blick then agreed that they should leave. Blick and Trent left the bar. Because Blick left his car keys inside, he returned to retrieve them from his brother-in-law who was still in the bar.

When Blick came back out of the bar, Blick saw Trent running up the street. “Mr. Nardo and another gentlemen [were] standing in the middle of the street firing off at him, firing off at him.” The gunmen then got into a car and “sped off.” Meanwhile, Blick and his brother-in-law got into their vehicle and drove up to Trent. Trent, who had jumped over a “little bridge” in his efforts to avoid being shot, had suffered a gunshot wound to the leg. Blick estimated that he stood from 10 to 30 feet away from appellant when the latter was shooting at Trent. He had not had any confrontations with “Mr. Nardo,” but had noticed him “the majority of the night” he was in the bar.

When the prosecutor asked Blick whether he saw the shooter in court, defense counsel objected, and the trial court sustained the objection. The prosecutor moved on without securing Blick’s explicit identification of appellant as the shooter. 2 The State also presented the testimony of police officers who were involved in responding to, and investigating, the shooting. The State then moved into evidence a stipulation that appellant had previously been convicted of a crime that disqualified him from possessing a regulated firearm. Following the presentation of the State’s case, the trial court denied the defendant’s motion for judgments of acquittal.

Appellant testified in his defense, and also presented the testimony of Tavon Gwynn and Tiffany Rhue. Gwynn, appellant’s friend, persuaded appellant to join Gwynn and Gwynn’s brother Mark on a trip to the Hollinswood Inn. Gwynn testified that there was a confrontation between two different ²⁴² groups, and that appellant stepped in to mediate. When one of the men in the bar asked his name, appellant responded that his name was “Nardo.” After some men in the bar resisted appellant’s attempts at mediation, appellant suggested that he and the Gwynns should leave.

Tiffany Rhue corroborated Gwynn’s recollection that appellant was a mediator, and testified that when she went to the Inn to purchase beer, she saw appellant trying to “defuse the situation” when an altercation took place. When someone questioned who appellant was, he replied “My name Nardo.” Rhue denied that there had been any shooting in the bar when she had been there. Appellant’s testimony also portrayed himself as a peacemaker, and he denied being involved in a shooting. The renewed motion for judgment of acquittal was denied, and the case went to the jury.

We shall recite additional facts as they relate to the issues on appeal. Discussion I. Voir Dire Appellant challenges the trial court’s method of conducting jury selection. He specifically asserts that the trial court’s manner of asking the venire a series of preliminary questions constituted a “flawed voir dire procedure [that] interfered with the Appellant’s right to a fair and impartial jury.” Appellant, citing Dingle v. State, 361 Md. 1 , 759 A.2d 819 (2000), also complains that the trial court “compounded” the error posed by the collective questioning by asking individual jurors an improper follow-up query at the bench: whether the juror had “any information to give the Court in response to my questions[.]” Appellant claims that this follow-up query shifted the burden of judging a juror’s partiality from the court to the prospective juror because it encouraged a juror’s “self-assessment.” Acknowledging that trial counsel failed to contest the court’s method of collective questioning, or, for that matter, any ²⁴³ aspect of voir dire, appellant asks this Court to notice plain error in the conduct of the voir dire. We decline to do so.

During the jury selection, the trial court posed a battery of questions to the prospective jurors. He introduced this inquiry as follows: I am going to ask all of you as a group some questions in order to obtain certain information which is necessary for the attorneys and for the court to determine whether you are eligible to serve as jurors in this case. Your legal requirement in responding to these questions is the same as if each of you individually took the witness stand and testified under oath, as indeed you are under oath. I emphasize that the fact you are questioned as a group does not lessen or lower your responsibility for making known your answers to these questions when you are given the opportunity to do so.

Now, I will not ask you to stand or to respond in any way, as I ask the questions. Listen to all of the questions very carefully and after I have asked all of the questions I will bring each of you to the bench and you may provide your answers to the questions at that time. The trial court then propounded thirteen questions, after which he asked counsel whether there was “any problem with voir dire.” Defense counsel specifically responded: “No objections.” Following this questioning, the trial court called each prospective juror to the bench one at a time, and asked whether the prospective juror had any information in response to the court’s questions, and whether there was any reason why that person could not be fair or impartial. After jury selection, both counsel expressed satisfaction with the jury that had been selected.

Defense counsel stated affirmatively: “The panel is acceptable to the defense.” 3 ²⁴⁴ Subsequent to the trial in this ease, the Court of Appeals disapproved of a voir dire procedure that employs collective questioning with delayed answers, as that technique was used in the case before us. In Wright v. State, 411 Md. 503, 506 , 983 A.2d 519 (2009), the Court held that “this method of voir dire did not effectively ensure a fair and impartial jury[.]” Writing for the Court, Judge Sally D. Adkins explained: The sheer bulk of the voir dire questions helps illustrate the difficulty of the task required of the venire. The form of the presentation further compounded that difficulty: the voir dire comprised five and a half minutes of continuous questioning, without pause, after which each venireperson was called to the bench one at a time. This process resulted in substantial delay between presentation of the questions and the answers.

Of the twelve jury members ultimately seated, four approached the bench more than thirty minutes after the voir dire questions had been read; the last of these approached more than fifty minutes after the reading. Id. at 511-12 , 983 A.2d 519 . Based upon its ruling in Wright, the Court of Appeals, in Height v. State, 411 Md. 662 , 984 A.2d 871 , (2009) (per curiam), vacated this Court’s decision in Height v. State¡ 185 Md.App. 317 , 970 A.2d 921 (2009), in which we had held that the same method employed by the trial court to conduct voir dire did not constitute an abuse of discretion. Upon remand, constrained by the holding in Wright , we reversed the judgment in Height’s case and remanded for further proceedings.

Height v. State, 190 Md.App. 322 , 988 A.2d 1054 (2010). But, unlike the present case, defense counsel in Wright expressly objected to the method by which the trial court conducted voir dire. The Court of Appeals described how the ²⁴⁵ issue was preserved in Wright, 411 Md. at 506-07 , 983 A.2d 519 : At the end of this collective questioning, each venireperson was called to the bench individually and asked if he or she had any information in response to the voir dire questions. The court then asked the venireperson if he or she could be fair and impartial.

At the conclusion of this process, ... Wright’s counsel objected to this voir dire method, arguing that “the problem is [the jurors’ abilities] to remember all the questions.” The trial court overruled the objection, saying that in the court’s understanding, the chosen method “complie[d] with ... reported cases.” The trial court went on to say that “this is an extremely effective way of accomplishing what is sought to be accomplished in the voir dire process. The jurors do remember the questions.” Similarly, during the trial in Height’s case, the defendant raised a specific objection to the practice of deferring the opportunity for prospective jurors to respond to each question. As we recounted in our first Height opinion, 185 Md.App. at 328-29 , 970 A.2d 921 , as soon as the trial court announced the process he intended to follow, defense counsel asked to approach the bench.

He objected to the procedure of asking “the questions all as a group instead of having to stand up after each question so that we can write down the number ... [as it e]nds up being confusing to the jurors.... ” Defense counsel further argued that another case was pending on appeal dealing with this same issue and, therefore, “I would be objecting for the record asking if you could question and then bringing them up based on the fact that it would be confusing.” The court denied the request, remarking that, until the Maryland appellate courts have held otherwise, “I don’t have any reason to depart from the procedure that I’ve adopted.” (Footnote omitted.) In contrast to Wright and Height, defense counsel in the present case not only failed to object to the method of voir ²⁴⁶ dire questioning, but also affirmatively stated that he had no objection to the voir dire, and that the jury panel that had been selected was acceptable. Accordingly, the issue is not preserved for our review, and we would only consider appellant’s arguments if we viewed the trial court’s methodology as plain error that we should address even though unpreserved. It is not. 4 It is clear that, “when a defendant fails to object [to the actions of the trial court], an appellate court possesses plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court.” McMillan v. State, 181 Md.App. 298, 359 , 956 A.2d 716 (citation and internal quotation marks omitted), cert. granted, 406 Md. 744 , 962 A.2d 370 (2008). But an appellate court should “intervene in those circumstances only when the error complained of was so material to the rights of the accused as to amount to the kind of prejudice which precluded an impartial trial.” Richmond v. State, 330 Md. 223, 236 , 623 A.2d 630 (1993) (citations and internal quotation marks omitted).

Even in cases where the error may be deemed to be “reversible,” we have “reserve[d] our discretion to exercise plain error review for instances when the unobjected to error ²⁴⁷ is ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial’ ” Stone v. State, 178 Md.App. 428, 451 , 941 A.2d 1238 (2008) (quoting State v. Brady, 393 Md. 502, 506-07 , 903 A.2d 870 (2006) (further citation omitted)). It is only “ ‘the extraordinary error and not the routine error that will cause us to exercise the extraordinary prerogative [of reviewing plain error].’ ” Martin v. State, 165 Md.App. 189, 195 , 885 A.2d 339 (2005) (quoting Williams v. State, 34 Md.App. 206, 212 , 366 A.2d 399 (1976) (Moylan, J., concurring)), cert. denied, 391 Md. 115 , 892 A.2d 478 (2006). We decline to exercise our discretion in this case to notice plain error in the trial court’s voir dire. Although an appellate court may address an unpreserved issue to “communicate a desired message to the bench and bar that might otherwise go unsent,” McMillan, 181 Md.App. at 360 , 956 A.2d 716 , the Court of Appeals has already spoken clearly in Wright , obviating the need for further appellate exploration of this issue.

Furthermore, the “error” of which appellant complains was not “plain” at the time of trial in this case. Cf. Height, 185 Md.App. at 332-33 , 970 A.2d 921 (“it has been held consistently that there is nothing improper about a trial judge’s questioning prospective jurors as a group.”). An error would not be “plain” unless it is wrong under current law.

See United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). At the time of the trial in the case before us, Maryland’s appellate courts had yet to address whether the manner in which the voir dire was conducted was error. No extraordinary circumstances are present in the case before us to invoke our discretion to address an unpreserved claim of error that has since been addressed by the Court of Appeals.

II

Witness Identification Appellant asserts that the trial court erred by denying the defense motion to suppress the identification testimony of Rico Blick, the shooting victim’s cousin. On the morning of the second trial day, the prosecutor announced that Blick had unexpectedly arrived at the prosecutor’s office and the State ²⁴⁸ wished to present his testimony at trial. Defense counsel objected, claiming that Blick had not been named as a witness in discovery, and asserting that “some 14 months later the State decides they want to bring in this witness[.]” The prosecutor pointed out that Blick’s name had been listed in the charging document, but prior to trial, Blick had neither identified appellant nor given a statement. The trial court overruled the defendant’s discovery objection to Blick’s testimony, but with respect to possible identification testimony, the court ordered that a detective, with both counsel in attendance, conduct a photo array procedure outside the presence of the jury.

Defense counsel later informed the trial court of concerns that Blick had seen appellant in the courthouse in shackles. After the prosecutor confirmed that Blick had seen appellant, the trial court advised the State that it would appear that Blick’s identification was “taint[edj,” and that the court would be inclined to grant the defendant’s motion to preclude Blick’s identification testimony. The trial judge granted the State’s request for a hearing on the defendant’s motion, but elaborated: THE COURT: If you want a hearing on [defense counsel’s] motion to suppress, we can have a hearing. I’ve already ruled that there is a sufficient issue of taint here to get beyond the Defendant’s burden initially, and now it’s the State’s burden by clear and convincing evidence to convince me that the taint is overcome.

I believe that’s the standard, am I correct? [DEFENSE'COUNSEL]: That is correct, Your Honor. The trial court conducted a hearing outside the presence of the jury to determine whether the State could call Blick as an identification witness at trial. At that suppression hearing, Blick testified that, on the night of the shooting, he accompanied his cousin, Bobby Trent, to the Hollinswood Inn. Blick recalled that they had been at the Inn perhaps 45 minutes when he “just heard a loud ruckus” involving one of Blick’s coworker’s.

That person came up to Blick to complain about ²⁴⁹ appellant, and Blick’s colleague suggested that appellant was armed. According to Blick, appellant approached, and took issue with the fact that Blick’s friend had said something about him. Appellant then ordered that person to leave, and then escorted that person out of the Inn. According to Blick, appellant then returned to the bar and announced: “ ‘Motherfuckers don’t know me, I’m Nardo[.]’ [Broadcast his name. ‘I’m Nardo, in case anybody don’t know.’ ” Blick then recounted that, at this, the music stopped and everyone turned to appellant for a moment.

Blick said that his cousin Trent felt uneasy about staying. Blick assured Trent that everything was now fine, and suggested that they finish their game of pool. But after another altercation erupted a while later, Blick agreed with Trent that they should leave. After they came out of the bar, Blick remembered that he had left his keys with a cousin who had remained inside.

Blick went back into the Inn to retrieve his keys. When he came outside the second time, Blick saw Trent running up the street away from appellant, who was standing in the street firing a handgun at Trent. The prosecutor asked Blick how many times he had observed appellant on the evening of the incidents at the bar. Blick testified: I mean, several times.

Everybody’s eyes was on him once he came broadcasting his name. You know what I mean, when he broadcast his name everybody was focused on him. Everybody, the whole bar. But I mean, I took (indiscernible) everything died down and we started shooting pool again everything resumed until a fight broke out in the back of the bar.

In the back of the pool table was there. That’s when everybody scattered. Blick testified that he saw appellant in the courthouse on the morning of trial, and that he recognized him as soon as he saw appellant exit the elevator. This sighting occurred before Blick was shown the photograph array. ²⁵⁰ Blick asserted that he was able to see appellant shooting at his cousin, despite the fact that it was dark outside of the bar: [PROSECUTOR:] ...

Now how could you tell that the person doing the shooting was this Nardo person? A How can I tell that he was doing the shooting? Q Yes. A I’m standing there watching him.

I’m watching — I’m watching his face. Where I just pointed all that as far as where I’m right there standing at the corner by the end, I’m standing there watching him. I’m watching him as my cousin running up the street. I’m standing there watching him in the middle of the street firing off at him.

On cross-examination, Blick emphasized that he recognized the shooter in the courthouse not because he was being escorted in handcuffs and shackles, but because he “recognized his face.” He did acknowledge, however, that he