Lee v. State

EYLER, DEBORAH S„ J. A grand jury in the Circuit Court for Prince George’s County indicted Tracy Samuel Lee, the appellant, for first-degree murder, use of a handgun in the commission of a crime of violence, and conspiracy to commit first-degree assault. In a jury trial, the court granted the appellant’s motion for judgment on the conspiracy count. The appellant was convicted of second-degree murder and use of a handgun. The court sentenced him to a term of 30 years imprisonment for second-degree murder and a consecutive term of 20 years for use of a handgun, the first five years without the possibility of parole.

On appeal, the appellant poses five questions for review, which we have rephrased slightly: I. Did the trial court err in refusing to propound jury instructions on defense of others and imperfect defense of others? ⁵⁰ II. Did the trial court err in permitting the medical examiner to give an expert opinion that the victim was not under the influence of phencyclidine (“PCP”) at the time of his death?

III

Did the trial court abuse its discretion in excluding evidence that the victim, at the time of his death, was in possession of PCP?

IV

Did the trial court abuse its discretion in restricting defense counsel’s closing argument? V. Did the trial court abuse its discretion in admitting a photograph of the appellant and his coworkers? For the reasons that follow, we answer these questions in the negative and shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS On June 22, 2007, at approximately 2:00 a.m., the appellant shot and killed Brian Comploier in a parking lot outside of Wyvill’s Tavern (“the Tavern”), also known as 301 Bar and Grill, located at 5753 Crain Highway, in Upper Marlboro.

The appellant admitted to shooting Comploier. The circumstances of the shooting, however, were hotly contested. At the time of the shooting, the appellant was 35 years old. He had been employed by the Tavern as a security officer for approximately six months.

The Tavern is a bar and dance club located in a strip mall. Its parking lot services several businesses. On the night of June 21, 2007, the appellant and his fiancée, Kim Covington, arrived at the Tavern at approximately 7:30 p.m. Covington was a waitress at the Tavern, but was not scheduled to work that evening.

The appellant was scheduled to work from 7:30 p.m. until closing. 1 Also working security that evening was Mario Millender, a close friend of the ⁵¹ appellant. 2 A third security officer, known as Kinard, was working as the bar manager. Around 1:45 a.m. (on what by then was June 22), Comploier, age 32, was driven to the Tavern by a friend, John Christopher Loubier. The two men had spent much of the previous day together and, at some point between 2:00 p.m. and 8:00 p.m., had smoked PCP.

Loubier dropped Comploier off at the Tavern and drove to a 7-Eleven to buy cigarettes. Comploier was supposed to be meeting the Tavern’s owner, John Noel, for a drink. He knew Noel and other Tavern staff, including Millender, from high school. He did not know the appellant.

When Comploier arrived, he ran into Angela Osborne, nicknamed Angel, who is the mother of his child. Osborne waitressed at the Tavern, but she was not working that night. She had been socializing at the Tavern since around 11:00 p.m. with her friend Penny Hussey. Just before 2:00 a.m., Comploier ran into Millender and the two began arguing. 3 Comploier may have spit at Millender.

Millender punched Comploier in the face. The appellant was stationed near the dance floor and witnessed the altercation. He had been about to leave the Tavern with Covington, who was not feeling well, when he saw Millender escorting Comploier out of the Tavern. 4 He and Covington followed Millender and Comploier out the front door. Osborne and several other patrons also followed them outside.

Once outside, Millender and Comploier continued to argue. Comploier ripped his own shirt off and was jumping up and ⁵² down and behaving in an erratic manner. Millender and the appellant told him to go home. Comploier made several calls to Loubier from his cell phone, but Loubier did not answer.

Loubier was on his way back to the Tavern, however, and pulled into the parking lot driving his pickup truck. He began to park his truck at the far end of the parking lot. Before Loubier’s truck had come to a complete stop, Comploier ran up to it and opened the driver’s side door, yelling to Loubier that he needed his knife. Comploier grabbed Loubier’s three and one-half inch blade folding knife from the console next to the steering wheel and, with the knife in hand, started back toward Millender and the appellant.

Loubier exited the vehicle, ran up to Millender, and pushed him. Osborne approached Comploier and he displayed the knife to her. According to Osborne, she told Comploier he was acting “stupid.” She took the knife from him and threw it in the direction of Loubier’s truck. The appellant and Covington dispute this version of events, however.

Both testified that Comploier continued to brandish the knife until the time he was shot. Loubier was unsure what happened to the knife after Comploier took it. Comploier also retrieved a shovel from the back of Loubier’s truck. He then paced back and forth, toward and away from the Tavern, holding the shovel and, by some accounts, the knife.

At some point before the shooting, he dropped the shovel. According to witnesses for the State, the appellant ran toward Comploier. According to the appellant, Comploier started toward him. By all accounts, the appellant removed a .22 caliber handgun from his waistband and shot Comploier six times.

Immediately following the shooting, the appellant and Covington reentered the Tavern. The appellant gave the hand ⁵³ gun to the Tavern’s cook. 5 The appellant and Covington then left through the back door of the Tavern and drove home to Ellicott City. Loubier, who ran onto a neighboring car dealership’s property when the shooting started, called 911. Hussey was exiting the Tavern right when the shooting began; she also called 911.

Osborne began to perform CPR on Comploier. The police arrived at approximately 2:05 a.m. Comploier was transported to Southern Maryland Hospital. He was pronounced dead at approximately 2:45 a.m.

The shovel was found but neither the knife nor the gun was recovered at the scene. During interviews at the scene, Osborne, Loubier, 6 and Hussey were unable to identify who had shot Comploier. 7 The following day, Osborne called the lead detective on the case, Kelly Rogers, and identified the appellant as the shooter. Within a few weeks of the shooting, the appellant and Covington moved to Roanoke, Virginia. They remained there until October of 2007, when Covington received a telephone call from Millender advising her that the police knew the appellant’s location.

At that time, the appellant took a bus to Florida to avoid apprehension. Soon after, Covington began cooperating with the police. The appellant was arrested in Florida on December 31, 2007, and was transported back to Maryland. The jury trial lasted from January 5 to January 8, 2009.

The defense theory was that the appellant was acting in self- ⁵⁴ defense or in defense of others when he shot and killed Comploier. The State argued that the testimony and the medical and forensic evidence did not support either defense. The State called ten witnesses, including Covington, Osborne, Loubier, Hussey, a forensics expert, a medical expert, and police officers involved in investigating the case. The medical examiner testified that Comploier was shot three times in the back and that these shots were fired within six inches of his body.

This was consistent with Osborne’s testimony that Comploier dropped to the ground, in a fetal position, when the appellant started shooting. She claimed that the appellant stood over him, shooting the gun. The appellant testified on his own behalf, but called no other witnesses. At the close of the State’s case, the appellant moved for judgment of acquittal on the charge of conspiracy to commit first-degree assault.

The court reserved, but granted the renewed motion at the close of all the evidence. The jury was instructed on first and second-degree murder, as well as perfect and imperfect self-defense. As noted above, the jury convicted the appellant of second-degree murder and use of a handgun in a crime of violence. He timely appealed his convictions.

We shall include additional facts in our discussion of the issues. DISCUSSION I. Defense of Others The appellant contends the trial court committed reversible error when it declined to give a requested instruction on perfect and imperfect defense of others. He argues that his testimony at trial, if believed, supported the claim that he acted in defense of patrons of the Tavern or, alternatively, of Millender or Osborne, when he shot Comploier. The State ⁵⁵ counters that the instruction was not generated by the evidence and, accordingly, properly was denied. “When claiming defense of others, the [defendant] has ‘the burden of initially producing “some evidence” on the issue of mitigation or self-defense (or relying upon evidence produced by the State) sufficient to give rise to a jury issue with respect to these defenses[.]’ ” Dishman v. State, 118 Md.App. 360, 376 , 702 A.2d 949 (1997) (quoting State v. Evans, 278 Md. 197, 208 , 362 A.2d 629 (1976)), rev’d on other grounds, 352 Md. 279 , 721 A.2d 699 (1998).

As the Court of Appeals explained in Dykes v. State, 319 Md. 206, 216-17 , 571 A.2d 1251 (1990), with respect to self-defense: Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says — “some,” as that word is understood in common, everyday usage. It need not rise to the level of “beyond reasonable doubt” or “clear and convincing” or “preponderance.” The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary.

If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense, the defendant has met his burden. (Emphasis in Dykes.) Thus, we turn to the evidence relied upon by the appellant at trial in support of his claim of defense of others to determine if he met his burden of producing “some evidence.” The appellant testified that he watched Comploier run to Loubier’s truck, “wrestle” with Loubier and start back toward him (the appellant) with a knife in hand. At that time, Comploier was “maybe four car lengths away” from the appellant. The appellant explained that he did not retreat to the Tavern because “people were out there circling around, so I had to stay in between them and keep them secure ... away from him because he had a weapon.” He stated that it was his “job [ ] to secure the premises and the patrons there, as well as myself and my co-worker.” ⁵⁶ The appellant further testified that he walked toward Comploier, but stopped about two car lengths away from him.

He told Comploier “to put the knife down.” Comploier did not comply. At this time, Millender was standing to the appellant’s left. The appellant saw Osborne run up to Comploier, slap him in the face, and scream at him. Comploier “put the knife to her throat” and she walked away from him.

At the same time, Loubier ran up to Millender, pushed him, and the two began arguing. The appellant described the moments immediately before the shooting as follows: I turned to my left to see what was going on and observe the situation, I looked back at [Comploier] because the people standing to my right side were patrons and he, as I looked at him, he was coming towards me. He had the knife up in the air like this (indicating), as though he was going to stab me, so therefore in order for me not to get hurt or anyone behind me, I had to brandish my gun and told him, man, get back. He kept coming towards me, so I had to shoot him.

Defense counsel asked why the appellant didn’t retreat when he saw Comploier approaching with the knife. He replied, “[b]ecause it was people standing behind me. If I was to leave, maybe one of those people would get hurt.” At the close of the evidence, the appellant asked the trial judge to instruct the jury on defense of others, perfect and imperfect. The requested instruction read, in pertinent part: You have heard evidence that the defendant killed (victim) in defense of another person.

You must decide whether this is a complete defense, a partial defense, or no defense in this case. In order to convict the defendant of murder, the State must prove that the defendant did not act in either complete defense of another person or partial defense of another person. If the defendant did act in complete defense of another person, the verdict must be not guilty. If the defendant did not act in complete defense of another person, ⁵⁷ but did act in partial defense of another person, the verdict should be guilty of voluntary manslaughter and not guilty of murder.

Defense of another person is a complete defense, and you are required to find the defendant not guilty, if all of the following four factors are present: (1) the defendant actually believed that the person defended was in immediate and imminent danger of death or serious bodily harm; (2) the defendant’s belief was reasonable; (3) the defendant used no more force than was reasonably necessary to defend the person defended in light of the threatened or actual force; and (4) the defendant’s purpose in using force was to aid the person defended. In order to convict the defendant of murder, the State must prove that defense of another person does not apply in this case. This means that you are required to find the defendant not guilty, unless the State has persuaded you, beyond a reasonable doubt, that at least one of the four factors of complete defense of another person was absent. Even if you find that the defendant did not act in complete defense of another person, the defendant may still have acted in partial defense of another person. [If the defendant actually believed that the person defended was in immediate and imminent danger of death or serious bodily harm, even though a reasonable person would not have so believed, the defendant’s actual, though unreasonable, belief is a partial defense of another person and results in a verdict of voluntary manslaughter rather than murder.] [If the defendant used greater force than a reasonable person would have used, but the defendant actually believed that the force used was necessary, the defendant’s actual, though unreasonable, belief is a partial defense of another person and the verdict should be guilty of voluntary manslaughter rather than murder.] ⁵⁸ Maryland Criminal Pattern Jury Instruction 4:17.3 (“MCPJ”) (brackets in original).

Defense counsel argued in support of the requested instruction as follows: Mr. Lee testified that one of the reasons that he did not turn around and retreat is because he had a duty to all of the patrons while Mr. Comploier was out there, still acting erratically, still brandishing a knife, he didn’t feel like he could turn his back on all of the people for whom he was responsible, given the fact that Mr. Comploier had brandish[ed] a knife, put it at Angel’s throat, and that he was still armed and dangerous at the time. So, he, by virtue of his job and by virtue [of] his testimony, was responsible for the people in the parking lot as well. The trial court denied the requested instruction, opining as follows: I just don’t believe — there was no evidence that Mr. Comploier had directly threatened anyone, but that Mr. Lee was speaking to people behind him, and that was the reason why he couldn’t retreat because he had to protect those individuals. I just don’t believe that’s the case in this matter.

Defense of others, like self-defense, is a justification or mitigation defense. If the appellant proved that he was acting in perfect defense of others, i.e., that he held a subjectively genuine and objectively reasonable belief that he had to use force to defend another against immediate and imminent risk of death or serious harm and the level of force he used was objectively reasonable to accomplish that purpose, he would be entitled to an acquittal on the murder charge. 8 See Judge Charles E. Moylan, Jr., Criminal Homicide Law 194 ⁵⁹ (2002). On the other hand, if the appellant held an actual belief that he had to use force to defend another, but his belief was not objectively reasonable and/or the level of force he used was not objectively reasonable, the result would be to mitigate “what might otherwise be murder down to the manslaughter level.” Id. at 193. The former is the “perfect” or “complete” form of the defense; the latter is the “imperfect” or “partial” form.

Id. We will begin with a discussion of the reported Maryland cases touching on defense of others — in either of its forms. In Guerriero v. State, 213 Md. 545 , 132 A.2d 466 (1957), the Court of Appeals considered whether the trial judge, sitting as the trier of fact, erred in finding a defendant guilty of assault, rejecting a defense of others defense. The defendant’s brother had become involved in an altercation with a third party outside the defendant’s family’s grocery store after the brother temporarily blocked the roadway with his truck.

The defendant shot the alleged attacker in the ankle. The Court stated the common law rule that [a] third person, closely related to or associated with one attacked[ 9 ] in such a manner that he could properly have defended himself by the use of force, has a right to go to the defense of the person attacked and to use the same degree and character of force that the one attacked could have used. Id. at 549 , 132 A.2d 466 . The Court noted that the brother’s subjective belief as to whether he was in danger was “of vital importance in passing on the appellant’s legal right to react to real or apparent danger to [his brother] in the manner he did.” Id. at 550 , 132 A.2d 466 .

In concluding that the verdict ⁶⁰ was supported by the evidence, the Court emphasized that the brother, who was in the driver’s seat of his truck when he allegedly was attacked, could have driven away or retreated to the safety of the grocery store, but did not. In Tipton v. State, 1 Md.App. 556 , 232 A.2d 289 (1967), a father witnessed his three teenaged sons being attacked by an older man. The oldest son had had both of his arms amputated. The father shot and killed the attacker as he was about to throw a large rock at the oldest son.

The father was indicted for murder and for carrying a concealed weapon. There was evidence presented at trial that the oldest son had approached the deceased after the deceased had stopped attacking one of the brothers and had kicked the deceased about the legs and ankles. The father asked for a jury instruction stating that he had a right to use force in defense of another even when the person being defended may have been an aggressor in the altercation, so long as the actions of the person being defended were “not likely or calculated to cause death or great bodily harm.” Id. at 560 , 232 A.2d 289 . The trial court declined to give the instruction and, in fact, instructed the jury that if the defendant “knew, or as a reasonable person should have known under the circumstances that the person whom he was acting to defend was the aggressor and had provoked a conflict, then his killing in defense of that person would not be justifiable or excusable.” Id. at 562 , 232 A.2d 289 .

We reversed the judgments of the circuit court, holding that the requested instruction was a correct statement of the law. In so ruling, we reaffirmed the principle in Guerriero , with slight modification: [A] third person, who is clearly related to or associated with the person subjected to the excessive and unreasonable force of the counterattack, has a right to go to the defense of that person and to use the same degree and character of force that the person presently being attacked could have used to defend himself. Id. at 562 , 232 A.2d 289 . Two years later, in Gray v. State, 6 Md.App. 677 , 253 A.2d 395 (1969), we affirmed the murder conviction of a 16-year old ⁶¹ boy who shot and killed his father and maternal aunt after they attacked his mother.

The defendant argued that the trial court erred by declining to give a jury instruction entitled, “Acting on Appearances,” which stated, in substance, “that it is not necessary that there shall be an actual danger to entitle a person to defend himself or a close relative; a reasonable appearance of danger is enough to justify the homicide.” Id. at 685 , 253 A.2d 395 . We concluded that this instruction would have been cumulative because the self-defense instruction given by the trial court had included the following: [I]n order to justify or excuse the killing of another on the ground of self defense, it is necessary to establish that the defendant believed at the time he was, or a person close to him or some close relative, was in immediate danger of losing his or her life, or suffering serious bodily harm and believed it necessary in the protection of that life of another to save that person.... Id. at 685 , 253 A.2d 395 . The court’s instruction further had clarified that “the test of self defense is not what the jury thinks a reasonable man would believe, but rather what the defendant, as a reasonable man, believed, to be taken into consideration.” Id. at 685-86 , 253 A.2d 395 .

Thirteen years later, in Alexander, supra, 52 Md.App. 171 , 447 A.2d 880 , this Court considered the historical right of intervenors to act in protection of third persons. We recognized the view, expressed in “strong dicta” in Guertiero, and later by this Court in Tipton , that a defendant’s right to act in defense of others is coterminous with the right of the person defended to act in defense of himself. Under this view of the defense, the defendant “ ‘ “stands in the shoes” of the one defended with exactly the same privilege or lack of privilege as possessed by the latter.’ ” Alexander, supra, 52 Md.App. at 174-75 , 447 A.2d 880 (quoting R. Perkins, Criminal Law at 1020 (2nd ed. 1969)). We concluded, however, that the “more ⁶² enlightened view,” “approved instinctively” in Gray , should prevail, that “one who is himself free from fault may intervene and use force to protect an innocent victim of intended crime.

And under the sound view he is protected by the usual mistake-of-fact doctrine and may act upon the situation as it reasonably seems to be.” Id. at 177, 447 A.2d 880 (quoting Perkins, supra, at 1021). We also considered the impact of a “Good Samaritan” statute enacted in 1965 in the wake of the Kitty Genovese case in New York City. 10 Then codified at Md.Code (1982 Repl.Vol.), Art. 27, section 12A, 11 the statute provided: Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person’s defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself. We noted that it was “the witnessing of the violent assault ... which affords protection for the intervenor” and the faultlessness, vel non, of the apparent victim was not referenced.

Alexander, 52 Md.App. at 178 , 447 A.2d 880 . ⁶³ The Alexander Court then turned to the facts. The defendant was a prisoner in a correctional facility who had assaulted a guard after witnessing the guard violently subduing a fellow prisoner. The events precipitating the guard’s actions were in dispute, but the other prisoner — a co-defendant — implicitly conceded that he was the initial aggressor. He also testified, however, that the defendant did not witness his acts of aggression and only witnessed the reaction of the guards.

The trial court instructed the jury that the defendant’s right to act in defense of his fellow prisoner was equivalent to the right of the fellow prisoner to act in self-defense. The court further explained that if the jurors were to find the co-defendant guilty “then it necessarily follows that the defendant [ ] cannot claim that right of self-defense on the basis that he was trying to protect” the co-defendant. Id. at 179 , 447 A.2d 880 . We reversed the judgments of the circuit court, holding that the instruction was in error under the Good Samaritan statute and our interpretation of the current status of the law on defense of others.

We explained that “an intervenor’s right to react is not strictly coterminous with a participant’s right to self-defense.” Id. at 183 , 447 A.2d 880 . In Shuck v. State, 29 Md.App. 33 , 349 A.2d 378 (1975), this Court reversed a defendant’s conviction and remanded for a new trial based, in part, upon a finding of error in the trial court’s failure to instruct on imperfect defense of others. In that case, the defendant’s friend was being attacked by two unarmed men. The defendant retrieved a baseball bat from the friend’s car and hit the attackers at least twice with it, killing one of them.

Citing Guerriero and Tipton , we concluded that, while the evidence was such that the defendant was not entitled to an instruction on perfect defense of others, because he unreasonably escalated a non-deadly combat to the deadly level, he was entitled to an instruction on imperfect defense of others. We noted that the defendant’s friend was “neither an aggressor nor a mutual combatant” and “was under unprovoked attack from at least one and possibly two persons.” Id. at 41, 349 A.2d 378 . We also cited to the “Good Samaritan” statute, however, with respect to the level of force the defendant would be entitled to use in defense of his friend. ⁶⁴ Lastly, in Dishman, supra, 118 Md.App. at 378 , 702 A.2d 949 , we rejected a defendant’s contention of error premised on the trial court’s failure to instruct on defense of others when the only evidence supporting the instruction was a statement the defendant made to the police that his friend and the victim had quarreled, “they both ‘threw a couple of punches,’ ” and the victim grabbed his friend by the hair. 12 We concluded that the defendant “utterly failed to put forth any evidence that he believed [his friend] to be in ‘immediate and imminent’ danger of death or serious bodily harm[.]” Id. (emphasis in original).

A common thread running through the cases in which the defense of defense of others has been recognized or an instruction on the defense was found to be generated by the evidence is that the person being defended was coming under direct attack when the defendant came to his or her defense. See, e.g., Shuck, supra (defendant’s friend was being beaten by one or two men); Alexander, supra (fellow prisoner was being physically subdued by a prison guard). The “Good Samaritan” statute cited in Alexander and Shuck similarly required the “witnessing [of] a violent assault upon the person of another,” not a potential assault or a general threat of violence. In contrast, in the case at bar, under the facts adduced at trial taken in a light most favorable to the appellant’s defenses, Comploier “was coming towards [the appellant]” when the appellant drew his gun and shot him six times.

There was no evidence that any patron, aside from Osborne, had been threatened by Comploier or that he had assaulted anyone except, possibly, Millender. At the time of the shooting, however, Millender was involved in an altercation with Loubier, and was not under attack by Comploier. Similarly, Osborne had “walked away” after Comploier put the knife to her throat; she was not under attack when the appellant shot ⁶⁵ Comploier. The appellant did not testify about the number of patrons in the area at the time of the shooting and their approximate distance from Comploier.

The facts adduced at trial did not include “some evidence” that the appellant actually believed when he shot Comploier that any other person — patron or coworker — was in immediate and imminent danger from Comploier, much less that he held an objectively reasonable belief of the same. The appellant’s testimony that, had he retreated, “maybe one of those people would get hurt,” could not support a reasonable inference that he actually believed such harm was imminent or immediate. He did not testify that he thought a patron would be killed or otherwise seriously injured if he retreated. 13 As defense of others was not generated as a defense at trial, the appellant was not entitled to a jury instruction about it, as a matter of law. See Evans, 278 Md. at 208 , 362 A.2d 629 .

The defense of defense of others may not serve to justify or mitigate the use of deadly force when the person ostensibly being defended is not being attacked and is not even the target of a threatened attack. In this case, the trial testimony favorable to the appellant was to the effect that Comploier was involved in an altercation with the Tavern security staff in which he was brandishing a knife, but that he was not using the knife or threatening to use the knife against patrons. A private security guard is not privileged to use deadly force to defend patrons who are milling about during a fight. The defense of others instruction properly was denied.

II

Medical Examiner’s Testimony The appellant’s next contention concerns the testimony of the medical examiner, Mary Ripple, M.D. According to the ⁶⁶ appellant, the State failed to give him timely notice that Dr. Ripple would opine that Comploier was not under the influence of PCP when he was shot; he (the appellant) then moved to exclude that aspect of Dr. Ripple’s testimony as a sanction for the discovery violation; the trial court failed to rule on the motion; and, by not