Malik v. State

SONNER, J. A jury in the Circuit Court for Baltimore City convicted appellant, Tariq Malik, of murdering five women in December, 1999. The circuit court sentenced Malik to what amounted to six consecutive life sentences, eight consecutive twenty-year sentences, and a consecutive thirty-year sentence. Malik presents five questions for our review. I. Did the lower court err by denying Malik’s motion to dismiss for violations of his right to a speedy trial?

II

Did the lower court err by granting the State’s motion to exclude evidence tending to implicate Ronald McNeil in the murders and McNeil’s statements implicating persons other than Malik?

III

Did the lower court err by denying Malik’s motions for mistrial because of emotional outbursts by prosecution witnesses against Malik?

IV

Did the lower court err by refusing to instruct the jury on a theory of second degree murder? V. Did the lower court err by allowing more than one conspiracy conviction? ³¹⁴ We hold that Malik’s first three challenges are without merit and affirm on those points. The court, however, erred in failing to instruct the jury on second degree murder and erred in failing to merge Malik’s various conspiracy convictions. Consequently, we vacate Malik’s convictions for first degree premeditated murder and the sentences attached to those convictions.

We also vacate Malik’s conviction for conspiracy to commit murder, and leave his remaining conspiracy convictions for appropriate action by the circuit court. Factual Background 1 On the evening of December 5, 1999, Alvin Thomas arrived at the residence of his business partner, Adrian “Pie” Jones. Thomas and Jones operated a dinner business out of Jones’s house in Baltimore City. As Thomas got out of his Nissan Maxima, Ismail Wilson and Robert Bryant grabbed him and took him into the basement.

Travon McCoy and appellant, Malik, were also in the basement, and all four men were armed. McCoy, Malik, Wilson, and Bryant demanded that Thomas give them drugs and money, while the four took his jewelry, jacket, cell phone, and pager. The four men next forced Thomas to call another business associate, Darnell Collins, because the four hoped to lure him to a nearby McDonald’s restaurant and take his drugs and money as well. Before ambushing Collins, however, the four decided to go to the home of Mary McNeil Matthews (“Lo”), Thomas’s sister, a person they knew to be a drug dealer, because they had conducted several drug transactions at her house.

They believed large quantities of drugs and money were there for the taking. At gunpoint, the four forced Thomas back into his Maxima, and the five drove to his sister’s house at 3535 Elmley Avenue ³¹⁵ in Baltimore City. In order to get into the house, the four propped Thomas up at the door and rang the doorbell. Maki-sha Jenkins 2 , Thomas’s niece and Lo’s daughter, opened the door and all five men entered the house.

According to the trial testimony, once inside, the four men began assaulting Thomas’s half-brother, Ronald McNeil. ' Also in the house at this time was Levanna Spearman, who was the girlfriend of Thomas’s nephew. 3 After the four discovered that Lo was not there, they forced Thomas to call her and have her come home. About twenty minutes later, Lo arrived with Mary Collein, who was Thomas’s mother, and Trennell Alston, the girlfriend of Ronald McNeil’s son. Bryant demanded that Lo give him drugs and took her upstairs. When they returned, Bryant was shoving money into his pockets.

Ronald, Collein, Lo, Jenkins, Spearman, and Alston were then gathered in the basement. Bryant and Wilson forced Thomas out of the house, and Wilson remained with Thomas in his Maxima, while Bryant returned to the house. Just after Bryant returned, Thomas heard gunshots and then saw Bryant, Malik, and McCoy leave the house and return to the Maxima. The four men and Thomas then drove to the McDonald’s to meet Collins and, on the way, Bryant asked, “Who capped Lo?,” and McCoy responded that he had.

Collins arrived at the McDonald’s a few minutes after Thomas and his abductors. Upon seeing Thomas with Wilson, Collins ran into the McDonald’s. Wilson got a gun from Bryant and chased Collins. Working his second job, providing security at the restaurant, was off-duty police officer Warren Brooks.

When he saw Bryant chasing Collins with the gun, he fired a shot at ³¹⁶ Wilson, which, although it missed, caused Wilson to flee from the scene and drop the gun. Meanwhile, Thomas, at the behest of Bryant, was searching Collins’s car for drugs and money. Thomas found an article of clothing, which he threw in Bryant’s face and escaped by running into a nearby bar, the Dejavue Lounge, where he told an employee that someone had tried to rob him and was chasing him. Someone in the lounge called 911, and when police arrived, they took Thomas away.

The police investigation began at the residence where Thomas heard the gunshots; there they found all five women shot to death. Collein’s body was in the kitchen and the other four women were in the basement. When police arrived, Ronald was at the house and was extremely emotional. After speaking with the officers, he began to scream that they were not doing enough.

Because of his combative behavior, police handcuffed him and took him to the station, where they conducted a gunshot residue test, which came back positive. Police recovered ammunition, including spent cartridge cases, expended bullets, and live cartridges for a shotgun. Subsequent autopsies showed that some of the women had been shot with a shotgun and some with a handgun. Police also conducted a search of Jones’s home, the place were the events of December 5th began.

In a room that Malik had occupied, officers found two boxes of different ammunition, and paperwork in the name of Malik, Bryant, and Wilson. James Waxter, a firearms identification expert, testified that some of the bullets fired at the house came from the gun discarded by Wilson at the McDonald’s, and the spent shotgun shells matched those seized from Malik’s room at Jones’s house. Charles Peters, an F.B.I. agent, testified that metallurgical analysis of the bullets at the scene indicated that they either came from the ammunition boxes seized from Malik or from boxes manufactured at the same time. Police arrested Malik on December 6th, when he arrived at a house that police were searching.

The house was occupied by Rochelle Dorsey, who had helped Malik and Bryant get ³¹⁷ rooms at a Pulaski Highway motel on the night of December 5th. Police found a bag of jewelry at Dorsey’s house and seized a ring from Dorsey that Bryant had given her, which they later determined to have been stolen during the murders. Discussion I. Malik’s first contention is that the circuit court erred in not dismissing his case for violation of his right to a speedy trial, as protected by the Sixth Amendment. This right does not entitle a defendant to an immediate trial, because the law permits reasonable time for normal preparation of the prosecution and the orderly processing of a case.

Fuget v. State, 70 Md.App. 643, 649-50 , 522 A.2d 1371 (1987). When a pretrial delay is “presumptively prejudicial,” however, we employ a balancing test to determine whether the right of the defendant to a speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). The factors employed in the balancing test are: (1) the length of the delay; (2) the reasons for the delay; (3) the time when the defendant asserted the right to a speedy trial; and (4) the prejudice to the defendant.

Id.; see also State v. Henson, 335 Md. 326, 332 , 643 A.2d 432 (1994). “Because whether a period is presumptively prejudicial, or not, depends upon the length of a pre-trial delay, the first factor ‘is to some extent a triggering mechanism.’ ” Henson, 335 Md. at 332-33 , 643 A.2d 432 (citation omitted). A. Presumptively Prejudicial Delay Malik was arrested on December 6, 1999, and his trial finally began on November 8, 2001. This was a delay of twenty-three months, because we measure the length of delay from the date of arrest to the date of trial. State v. Gee, 298 Md. 565, 568 , 471 A.2d 712 (1984); see also Henson, 335 Md. at 333-40 , 643 A.2d 432 (discussing how a delay should be calculated when a prosecution has been instituted, terminated, and than reinstated).

As the complexity of a case increases, so does the tolerable delay before a presumptive prejudice ³¹⁸ finding. See Barker, 407 U.S. at 530-31 , 92 S.Ct. 2182 ; see generally Dalton v. State, 87 Md.App. 673, 686 , 591 A.2d 531 (1991). Even with the complexity of issues present in this case, we believe that a delay of twenty-three months was presumptively prejudicial, triggering the Barker balancing test. See Doggett v. United States, 505 U.S. 647 , 652 n. 1, 112 S.Ct. 2686 , 120 L.Ed.2d 520 (1992) (holding that an eight-and-one-half year lag between indictment and arrest clearly triggered the Barker analysis); State v. Ruben, 127 Md.App. 430, 440 , 732 A.2d 1004 , cert. denied, 356 Md. 496 , 740 A.2d 613 (1999) (finding a delay of eleven months “barely” of constitutional dimension, but nonetheless sufficient to trigger the Barker analysis).

B. Reasons for Delay “Closely related to the length of delay are the reasons for delay.” Dalton, 87 Md.App. at 686 , 591 A.2d 531 . As the Supreme Court stated in Barker : A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Barker, 407 U.S. at 531 , 92 S.Ct. 2182 (footnote omitted).

In our view, the twenty-three-month delay in this case can be broken down into five segments. The first segment lasted from Malik’s arrest on December 6, 1999, to the first scheduled trial date, July 6, 2000, a seven-month period. We must assume that the parties were involved in normal pre-trial preparation during this time. Generally, time spent in pre-trial preparation is neutral and not charged either to the State or the deféndant.

Dalton, 87 Md.App. at 687 , 591 A.2d 531 (citing Ferrell v. State, 67 Md.App. 459, 463-64 , 508 A.2d 490 (1986)). We also do not believe that this seven- ³¹⁹ month period was excessive, given the complexity of the case, the number of victims, and varied crime scenes. The second segment of time ran from July 6, 2000, to September 19, 2000. On June 12, 2000, 4 the court granted a postponement from July 6th to September 19th because the State was awaiting additional DNA evidence, fingerprint results, and the State required more time to comply with defense DNA discovery requests.

In addition, Malik’s and Bryant’s attorneys were scheduled for motions in federal court on July 6th. 5 We believe this two-month period is chargeable to the State because the delay partially resulted from the State’s failure to submit blood for DNA analysis in a prompt fashion. We will not weigh this period heavily against the State, however, because Malik is partially to blame for the delay and either reason alone would have delayed the trial. The third segment runs from September 19, 2000, to January 23, 2001. We believe this four-month segment weighs against the State as well, though the weight we give this delay is only slightly more than we gave the previous delay.

Here, Wilson requested the delay because he wanted more time to review recently disclosed DNA evidence and time to consult a DNA expert. It appears that Malik acquiesced in this delay because he wanted to be tried with his co-defendants. It also appears, however, that the only reason Wilson required a delay was because the State was somewhat tardy in submitting the DNA evidence for analysis and unwilling to disclose some of the results. The fourth segment is an eight-month period between January 23, 2001, and September 4, 2001.

The court granted this delay at a hearing on January 24, 2001. The court did not ³²⁰ specify the good cause warranting the delay. The circuit, court did find good cause at a hearing on February 9, 2001. Because the record is devoid of any transcript of this hearing, we are unable to verify what the good cause was for purposes of determining who the time weighs against.

As we explain, the reason for the delay and to whom it is attributed has little bearing on our final conclusion. What we can discern from the record is that the State opposed this delay. The circuit court, however, elected to move the trial date because, although certain statements sought by the defendant were not Brady 6 material, he was still entitled to use the statements to mount a defense and needed time to explore his trial strategy. 7 The trial should have occurred in June, 2001, however, and was moved to September 4, 2001, only because Malik’s counsel was involved in a capital murder case in Washington, D.C. Consequently, for purposes of our review, we will weigh the five-month period from January 24, 2001, to June 11, 2001, slightly against the State, and we will weigh the three-month delay from June 11, 2001, to September 4, 2001, slightly against Malik. We believe this is a proper weighing because the State, in its chronology of events outlined in its response to Malik’s motion for dismissal, quoted the court’s findings on February 9, 2001, “that the delay in this matter ... shall be laid at the feet of the State.” The State cites no reason to alter the lower court’s conclusion and our independent review reveals none as well.

We agree that a portion of this eight-month delay is the fault of the State. The final segment of time is a two-month period between September 4, 2001, and November 8, 2001. The court granted this delay at the request of defense counsel, who was involved in a month-long capital murder trial in Washington, ³²¹ D.C. Malik argues that this delay should be attributed to the State, because had the State acted promptly with the DNA analysis and not fought disclosure, the delay would not have been necessaiy. We will not attribute this delay to the State because the trial could have taken place in June 2001, and the only reason it did not was because of counsel’s trial calendar. 8 C. Malik’s Assertion of his Right “Because the strength of the defendant’s efforts will be affected by the length of the delay, asserting the speedy trial right weighs heavily in determining if the right has been denied.” Dalton, 87 Md.App. at 688 , 591 A.2d 531 .

The failure of a defendant to demand a speedy trial makes it more difficult to prove the defendant was deprived of the Sixth Amendment right. Barker, 407 U.S. at 531-32 , 92 S.Ct. 2182 . We have previously considered the assertion of the right to a speedy trial within five months of arrest as sufficiently prompt to weigh in favor of the defendant. Dalton, 87 Md.App. at 688 , 591 A.2d 531 .

Malik first asserted his right to a speedy trial by joining co-defendant Wilson’s motion at the January 23, 2001 motions hearing. That was thirteen months after his arrest, decidedly not prompt, so we will weigh this factor heavily against him. See Lewis v. State, 71 Md.App. 402, 419 , 526 A.2d 66 (1987) (weighing a twelve-month delay in asserting the speedy trial right against the defendant); see also Berryman v. State, 94 Md.App. 414, 422-23 , 617 A.2d 1120 (1993) (twenty-month delay); Jackson v. State, 69 Md.App. 645, 655 , 519 A.2d 751 (1987) (same). D. Prejudice to Malik There are three interests to be considered by this factor: (1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) the possibility that the delay ³²² hampered the defense.

Barker, 407 U.S. at 532 , 92 S.Ct. 2182 . Although all three interests are important, the third one is the most important. Id. We will not discount, however, the effect the other two factors have on a defendant.

We have previously summarized that these concerns create prejudice to the person and prejudice to the defense. State v. Wilson, 35 Md.App. 111, 127 , 371 A.2d 140 (1977), aff'd, 281 Md. 640 , 382 A.2d 1053 (1978). Malik was incarcerated at the Supermax (MCAC) prison for almost the entire twenty-three-month period. He was confined in isolation for twenty-three hours each day and was not permitted to participate in any prison programs.

We afford these circumstances some weight, although not a large amount because there is no allegation that the incarceration impaired the preparation of his defense. See Ferrell, 67 Md.App. at 465 , 508 A.2d 490 . We believe that Malik is largely blameless for this delay and, as a consequence, we will afford his incarceration and the attendant anxiety associated with that incarceration in his favor. Cf.

Lewis, 71 Md.App. at 419-20 , 526 A.2d 66 ; Jackson, 69 Md.App. at 656 , 519 A.2d 751 . The weight we give this factor, however, is not as great as it would have been had Malik not caused a portion of the delay. Although the State discounts the effect of the lengthy pretrial delay on Malik, we are not so convinced, and believe that the incarceration caused anxiety that was not trivial. Jackson, 69 Md.App. at 655 , 519 A.2d 751 .

E. Balancing of the Barker Factors Our application of the Barker factors yields the following analysis: (1) A delay of twenty-three months; (2) Seven months of delay given neutral weight, eleven months of delay weighed slightly against the State, and five months of delay weighed slightly against Malik; (3) The failure of Malik to assert his right promptly, weighed heavily against him; and ³²³ (4) Significant prejudice to Malik, but no prejudice to his defense. Although the length of delay weighs against the State, none of that delay is weighed heavily. In addition, Malik is at fault for a good portion of the non-neutral delay. His failure promptly to assert his right also weighs against him.

Although his pretrial incarceration was lengthy, there is nothing in the record to indicate that his defense suffered as a result. We note that Malik’s co-defendants raised the identical issue in their appeal to this Court. Wilson, 148 Md.App. at 613 , 814 A.2d 1 . Although we attached different weight to similar delays, we came to the same conclusion in Wilson that we reach here, “because the delay was occasioned, in part, by the request of [defense] counsel for postponements and because of the complexity and gravity of the case.” Id. at 640, 814 A.2d 1 .

II

Malik next contends that the circuit court erred when it did not allow him to present certain criminal acts of Ronald, 9 as well as certain hearsay statements he made. The nine pieces of disputed evidence can be divided into two categories: those occurring prior to the murders and those subsequent to the murders. The disputed evidence that occurred prior to the murders was: (1) Ronald’s 1984 conviction for murdering his grandfather; (2) Ronald’s barehanded assault on his niece; and (3) Ronald’s 1993 conviction for assault with intent to murder his then girlfriend. Those pieces of disputed evidence that occurred after the murder were: (1) Ronald’s alleged duct-taping of his son to a chair because he believed his son had information on the murderers; (2) Ronald’s conviction for murdering a person he believed was involved in the murders; (3) Ronald’s threats against a neighbor and her boyfriend; (4) Ronald’s alleged use of a handgun to prevent his arrest by ³²⁴ police; (5) Ronald’s statements to reporters that he had been left for dead in the basement by the murderers; and (6) Ronald’s statements naming others he believed were involved in the murders.

The defense theory of the case was that Ronald was not completely candid with police in describing the murderers. In fact, the defense contended that Ronald was the gunman. In support of this theory, the defense wished to introduce the above evidence to show that Ronald was capable of inflicting harm on members of his family or those close to him. The court, reasoning that the circumstances of these other acts were totally dissimilar from the murders, denied the defense the use of all of this evidence.

Instead, Malik had to rely on “the testimony that [Ronald] had emerged unharmed from the barrage of bullets and shotgun shells that killed [five women] and that [Ronald] had gunshot residue on his hands.” Because Malik wanted to use this evidence for substantive purposes, Maryland Rule 5-403 governed the circuit court’s decision. The rule states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This inquiry is left to the sound discretion of the trial judge and will be reversed only upon a clear showing of abuse of discretion. Martin v. State, 364 Md. 692, 705 , 775 A.2d 385 (2001).

Evidence is relevant only when, “through proper analysis and reasoning, it is related logically to a matter at issue in the case, i.e., one that is properly provable in the case.” Snyder v. State, 361 Md. 580, 591 , 762 A.2d 125 (2000). To find such a relationship, the court must be “satisfied that the proffered item of evidence is, on its face or otherwise, what the proponent claims that item to be, and, if so, that its admission increases or decreases the probability of the existence of a material fact.” Id. ³²⁵ The factual circumstances of the proffered evidence were extremely remote to the facts of this case. At issue here is the murder of five women over drugs and money. The broad umbrella of comparison that Malik wished to attach between Ronald’s past and the murders was simply unworkable.

Regarding the murder of his grandfather, at least fifteen years passed between that murder and the December 1999 murders. Any possible relevance that it may have had was overwhelmingly outweighed by the unfair prejudice, confusion of issues, and probability of misleading the jury that its introduction would have created. See generally Md. Rule 5-609(b) (excluding impeachment evidence based on criminal convictions that are more than fifteen years old). Ronald’s other murder, his threats of assault against the neighbor and her boyfriend, his shooting at police, his statements to reporters, and his statements regarding the murders were properly excluded. 10 This evidence supported Ronald’s belief that there were other people involved in the murders, and was an attempt by Malik to discredit his story about the events of the evening.

Whether others were involved in the murders does not mean that Malik was not. Had the court allowed this evidence, it clearly would have confused the issues, misled the jurors, and allowed them to speculate about what really happened. The court properly excluded the evidence of Ronald duct-taping his son, cutting his former girlfriend, and assaulting his niece. The duct-taping of his son and the slap of his niece were a far cry from the killing of five women.

And the attack of his girlfriend with a knife, though quite serious, also does not compare with the cold-blooded murders for which ³²⁶ Malik stood trial. This evidence could arouse the jury’s prejudice and hostility, as well as confuse the issues.' Worthington v. State, 38 Md.App. 487 , 381 A.2d 712 (1978), which involved a conviction for assault with intent to murder, confirms our decision. In that case, the defendant sought to establish, during cross-examination of the victim, that the victim gambled and owed money to another person, so as to attribute a motive to the lender for firing the offending gunshots. The trial court prohibited the inquiry because, “[hjaving an outstanding debt and connecting [the lender] with the shooting [was] two different things.” We affirmed the ruling, reasoning: While it is conceivable that the existence of animosity by some members of the community toward [the victim] could raise an inference that they, rather than appellant, were the perpetrators of [the victim’s] injuries, we feel, as did the trial judge, that such a connection is, in the absence of