Marshall v. State

WRIGHT, J. This appeal arises from the conviction upon retrial of appellant, Dajuan Marshall, of conspiracy to murder and gang association resulting in death. Marshall was first tried by a jury in the Circuit Court for Baltimore City on July 30 and August 2, 3, 4, 5, 6, and 9, 2010, and convicted of first degree murder, conspiracy to murder, conspiracy to kidnap, and a handgun violation. Marshall filed a motion for a new trial, based on juror misconduct, which was granted on September 10, 2010. Marshall’s retrial was held on October 18, 19, 20, 21, and 24, 2011.

On December 20, 2011, Marshall was sentenced to life imprisonment for conspiracy to murder plus twenty years to be served consecutively for gang association resulting in death. Marshall then filed this timely appeal. Questions Presented Marshall presents three questions for our review, which we quote verbatim: 1. Was it error to admit certain portions of the prior testimony of Appellant, from his first trial? 2.

Was it an abuse of discretion to deny the motion in limine? 3. Should the trial court have granted the motion to dismiss the charge of gang participation resulting in death, because the statute is void for vagueness? For the reasons that follow, we answer questions 1 and 2 in the negative and affirm the decision of the trial court. We find that Marshall failed to renew his motion to dismiss after the grant of a new trial and, therefore, we decline to address Marshall’s third question as it was not preserved for our review.

Facts and Procedural History On June 9, 2008, Kenneth “Kash” Jones, the alleged leader, or original gangster (“OG”) of the Bloods gang known as the Pasadena Denver Lanes (“PDL”), was kidnapped from the corner of Water Street and Custom House in downtown ⁵³⁶ Baltimore City. Jones was found murdered in the 4500 block of Bonner Road shortly after midnight on June 10, 2008. Marshall was arrested and charged with Jones’s murder and other related offenses. On August 9, 2010, a jury convicted Marshall of first degree murder, conspiracy to commit murder, conspiracy to kidnap, and a handgun violation.

On September 10, 2010, Marshall moved for a new trial on the ground of juror misconduct, which was granted by the trial court. Following a retrial in October 2011, Marshall was acquitted of the first degree murder charge, but he was found guilty of conspiracy to commit murder and gang association resulting in death and was sentenced to life imprisonment plus twenty years. During his first trial, Marshall testified that, in 2007, he had left the Bloods gang called Family Over Everything (“FOE”) to form the Spider or “Spyda” 1 Gang as a community improvement group. At retrial, according to State’s witness, Omar Woods, Marshall was the OG of the Spider Gang, a Blood gang and rival of the PDL.

Woods testified that he joined the Spider Gang because he “thought it was a brotherhood to where as though we take care of each other and take care of the community and try to uplift the community.” Woods testified that when he joined the Spider Gang, it was explained to him that “we was supposed to be bounty hunters. We were bounty hunters. We was supposed to be like police department to the city. Watch over other gangs.

Make sure they’re doing everything the right way like helping the community and being our brother’s keeper and we’re not doing a bunch of wrong.” However, when questioned further, Woods testified that the Spider Gang was “[n]ot at all” as described to him and was really “nothing but a bunch of mischief. Tearing the community down. A lot of robbing people, petty crimes.” Woods testified that the Spider Gang supported itself “[tjhrough a ⁵³⁷ bunch of crimes around the city. Robberies, selling drugs, however we can get money.” Woods testified that the Spider Gang’s goal was to be the “last gang alive” in order to “take over the city” and, therefore, the gang had many enemies.

Regarding Jones’s murder, Woods testified that he knew Jones was the “leader” of the PDL and that “[Jones] was on the menu,” or targeted to be “killed on sight.” Woods testified that Marshall had likewise been “placed on the menu” by the PDL. According to Woods, the Spider Gang would benefit by killing Jones because “if you take away the head of the organization the rest of the organization would fold” and the Spider Gang would “be one of the last standing____ [t]hat was the whole thing we was trying to do.” Woods testified that he was asked to participate in Jones’s murder by Marshall and he would ride around Baltimore City with Marshall looking for Jones. After Jones’s murder, Woods testified that the gang members were gathered and Marshall stated that he and several others had taken care of Jones, although Marshall was not the trigger man. Woods testified that the gang members involved in Jones’s murder were Marshall, “Nose Bleed,” “Rick Flare,” and “Nephew.” Woods testified that he had identified Marshall to the police as the person who “initiated” Jones’s murder.

Woods testified that he was ordered by the Spider Gang’s other OG, known as “Gotti,” to “rob some people so we can earn some money to send to [Marshall].” When Woods was arrested after attempting to rob a store, he gave police information about the Spider Gang and Jones’s murder because he wanted “leverage to help get out of the gang.” In his discussions with police, Woods recounted an incident involving a business called JT’s Bar. According to Woods, he called a senior gang member, “Kuran,” about meeting an individual at JT’s Bar to “get a bunch of guns.” After Kuran told Woods that they were going to rob the bar, Woods testified that Marshall “showed up there and he was telling me they was together.” Woods testified that he “opened the side door so they could come in and rob the store and everybody ⁵³⁸ else in it.” The robbery of JT’s Bar occurred approximately one month after Jones’s murder. Additional facts will be included in the relevant sections below. Discussion I. Marshall contends that the trial court erred in admitting prior testimony from his first trial related to the defense’s nonproduction of corroborating witnesses.

Marshall argues that the admission of the prior cross-examination impermissibly shifted the burden of proof to the defense. Marshall maintains that, because the corroborating witnesses were claimed by his previous defense counsel in advance of his prior trial, the trial court erred in “shackling the new defense attorney to his predecessor’s flawed, trial strategy.” Marshall does not argue that the prior testimony was inadmissible, only that it was an abuse of discretion to admit it. The State responds that the trial court did not abuse its discretion in admitting Marshall’s prior testimony. The State asserts that the prosecutor was permitted to comment on the lack of corroboration during Marshall’s first trial because Marshall had elected to testify and raise the issue of whether Spyda was a civic organization rather than a criminal gang.

The State argues that “whether or not Spyda was a charitable organization ... was not a fact inconsistent with guilt that the State bore the burden of disproving” and, therefore, any comment on it could not shift the burden of proof. The State avers that Marshall’s prior testimony was admissible under a hearsay exception and the “inter-trial shift in tack in describing Spyda” during the first trial was “relevant to [Marshall’s] credibility on the gang-participation charge.” According to the State, “the prior testimony was independently relevant to show [Marshall’s] shift in tack.” At his retrial, Marshall’s counsel objected to the State’s introduction of an audio recording of Marshall’s prior testimony regarding the nature and purpose of the Spider Gang and ⁵³⁹ the lack of corroborating witnesses as to that purpose. The trial court allowed Marshall’s prior testimony to be played for the jury, with certain portions redacted. The admitted portion complained about on appeal is as follows: [THE STATE]: Well, what about Ali Muhammad? [ 2 ] You said he’s like a brother? [MARSHALL]: Yes. [THE STATE]: Can he back up your version of what the Spider Gang is all about? [MARSHALL]: Can he back it up? [THE STATE]: Uh-huh. [MARSHALL]: As far as what I said it’s about? [THE STATE]: Uh-huh. [MARSHALL]: Yes, he should be able to. [THE STATE]: Okay. [MARSHALL]: He should. [THE STATE]: Is he going to be here to testify to that? [MARSHALL]: No, he’s not here.

He’s under arrest, I believe. [THE STATE]: Okay; but you can bring people in, can’t you, to testify for you? [MARSHALL]: Yes. [THE STATE]: Your defense attorney listed him as a witness, did he not? [MARSHALL]: That was a mistake. I don’t know why his name was placed on there. [THE STATE]: Okay; but you didn’t think that you—you want Ali Muhammad in here to come in here and to support what you’re saying, is that the Spider Gang is this wonderful, civil group that just does all this great community work? “We will not disturb a trial court’s evidentiary ruling unless ‘the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse ⁵⁴⁰ of discretion.’ ” Mines v. State, 208 Md.App. 280, 291-92 , 56 A.3d 560 (2012), cert. denied, 430 Md. 346 , 61 A.3d 19 (2013) (quoting Decker v. State, 408 Md. 631, 649 , 971 A.2d 268 (2009) (citations omitted)). “An abuse of discretion occurs when a decision is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’ ” Id. at 292, 56 A.3d 560 (quoting Gray v. State, 388 Md. 366, 383-84 , 879 A.2d 1064 (2005) (citations omitted)). Commentary on the lack of corroborating witnesses is permissible when a defendant elects to testify. In Mines, supra, 208 Md.App. at 295 , 56 A.3d 560 we addressed the same argument regarding shifting the burden of proof based on a prosecutor’s cross-examination of a defendant on the defendant’s failure to produce corroborating witnesses.

We held that the defendant’s Fifth Amendment rights were not impaired nor could the questioning “be construed as an improper shifting of the burden of proof.” Id. As in Mines , in the case at bar during Marshall’s first trial, “the prosecutor’s questions were directed to appellant after he took the stand, and involved whether there was support for factual claims raised by appellant’s testimony.” Id. at 299 . We were clear that “[i]n the circumstances, where appellant testified in his own defense and, in his own testimony identified potential exculpatory witnesses, but called none of them to the stand, questions as to their absence ... did not constitute improper burden shifting.” Id. at 301-02 , 56 A.3d 560 . 3 The trial court ⁵⁴¹ correctly noted that, during the first trial, “when [Marshall’s] making statements, he can be asked if the people in his social organization is [sic] going to back him up about being a social organization, which is what his line of questioning is.” The questioning and testimony was clearly admissible in Marshall’s first trial. We have previously held that when testimony is admissible during an original trial, it is admissible during a retrial.

See Finke v. State, 56 Md.App. 450, 496-97 , 468 A.2d 353 (1983) (testimony that was inadmissible in the first trial because of procedural failure rather than substantively inadmissible was admissible in retrial when the trial court corrected procedural error); see also Brown v. State, 153 Md.App. 544, 553 , 837 A.2d 956 (2003) (videotape testimony of appellant from his first trial admissible in his second trial even though appellant did not take the stand in his own defense during that trial). Having determined that the trial court did not abuse its discretion in permitting the cross-examination during the first trial, we likewise find no abuse of discretion in admitting it during Marshall’s retrial.

II

Prior to the start of his retrial, Marshall moved in limine to exclude evidence related to other crimes offered to prove gang affiliation. Marshall’s trial counsel argued: ... Mr. Marshall, is charged under the gang statute and I know that the State has provided case law, but I’m going to argue that the State intends to introduce evidence of gang affiliation, pictures, photos, documents, things of that nature to elicit that my client is a member of this organization as identified as a gang. They intend to try to establish through that information that my client is considered one of the leaders of this gang and certainly, given the nature of ⁵⁴² just that term, gang, Bloods and I think it prejudices my client tremendously for the State to be able to introduce information, documentation that’s not necessarily, uh directly of my client.

They are of other people who are a part of this organization called a Spider Gang per say [sic] and so, I would argue that that information should not be allowed to be introduced. If the State has evidence directly establishing my client’s involvement in this organization, then that’s one thing, but to bring in information about other individuals who may or may not be testifying in this case may not even, I don’t even know who these individuals are. They got photographs and other documentation trying to establish this is in fact a gang and that my client is necessarily a part of it. The State responded in part: Additionally, Your Honor, the gang statute essentially requires that I put on evidence to show gang membership.

Uh, additionally you know, the gang statute requires that I um, that I prove that there are, you know, three or four members of an organization that they commit crimes to benefit their criminal gang. So it’s necessary to bring that evidence in, in order to show and to meet the standards establish by the statute. After the State made a detailed proffer of the evidence it intended to introduce, counsel for Marshall argued: Judge, first of all, that crime that the State is suggesting, my client was never charged with. The State’s suggestion is that he directed that JTs [sic] Bar robbery.

He’s never been charged with that. Never been charged under the gang statute saying that, hey, here’s another place where he fits right into that category. Fits right into this crime that this is an organization that went out, engaged in a crime for the benefit or the direction of this young man. That’s one.

The other thing is the State’s suggestion that my client directed this. They’re saying he both directed it and participated in it like he was present. He, he directed it by being present. They didn’t say, like if, if the theory is whatever I ⁵⁴³ say, do, then go do it.

I’m, I’m in charge. Go hunt down this man, but then, I’m, I’m there participating in this. So, they want to add both. He’s either participating or he’s there or we both figured on up, right when that’s not the case.

They want to have both ways and we, we’ll throw them out there and the jury will decide if it’s one or the other, either he was present or he directed it. If they’re saying he was there giving out orders like you grab this man around the neck, you drag him to the car, you open the trunk, you go, you know me, you drive up this way. You get out and you—no way. None of that, but that suggests that this crime, this one crime where my client’s not charged.

There’s no other information that suggests other than that this one State’s witness who has become a State’s witness, whose [sic] a former member of this organization for a benefit says, my client was present and he ordered it. Nobody else says that. Not no big, not that it’s the officers who are present say they saw what appeared to be people standing across the street as if they were looking out while this crime was going on. Nothing.

Nothing that puts him there. Nothing that says that he directed this. So, that’s very prejudicial to this case to let this young man come in here and say, yes, weeks ago, months ago now that I’m arrested, right, I did a crime and coincidentally this young man directed me to do that crime, right. I’ve done other crimes, right and there’s no suggestion that he ordered me to do them, but his crime here where he’s not been charged, where there’s no other indication that he was present, yeah, he directed me to do that.

That’s what they’re asking this Court to accept or allow somebody to come in here on these facts, where we already go this gang situation going on. It’s already going to be sensitive, but to now suggest that okay, this broad theory that if you in charge, and matter of fact, there are two people alleged to be in charge of this organization. One of the individuals who is alleged to be in charge or they have two heads of this Spider Gang, the other person who the State contends is also a leader of the Spider Gang is identified by the State’s witness as being ⁵⁴⁴ present at the time of this incident. She put other people, other members of the organization present during this kidnaping and doesn’t mention my client at all, at all.

So, to suggest that he somehow directed this when there was another member, another leader who was present, alleged to be present at the time of this incident is very prejudicial and I don’t think that should be allowed, judge. The trial court held the motion in limine sub curia, stating that “I am inclined to allow the State to get into this area, but it’s obviously going to be on a question by question basis and I’m first going to have to hear the witnesses or the presentation of proof to be sure that the clear and convincing evidence standard for the [Md. Rule] 5-404(b) standards are met....” Marshall avers that the trial court erred in denying his motion in limine to preclude the State from introducing evidence of other crimes to satisfy the “pattern of criminal gang activity” required under Md.Code (2002, 2007 Supp.), § 9-801(d) of the Criminal Law Article (“CL”). 4 Marshall maintains that the evidence related to the robbery of JT’s Bar was not relevant and, therefore, not admissible, because it occurred after the murder and kidnapping and Marshall was never charged with the robbery. Marshall argues that Md. Rule 5-404 5 makes evidence of “other crimes, wrongs, or acts” inadmissible to prove his character or his propensity to commit crime. According to Marshall, the trial court erred in admitting evidence related to the robbery of JT’s Bar because its potential prejudice outweighed its probative value and the jury “may have found” him guilty “because of evidence of the propensity of [his] associates to commit crimes.” ⁵⁴⁵ The State argues that CL § 9-804(a), 6 “as defined by § 9-801(d), essentially converts [what] would have been ‘other crimes’ evidence under Rule 5-404(b), to evidence directly relevant to an element of the charged offense.” The State asserts that Marshall incorrectly implies that kidnapping and murder charges could have served as sufficient “underlying crimes” under the statute because those crimes were “part of the same incident” and the statute requires proof of underlying crimes that “were not part of the same incident.” It is well-settled that “[s]ubject to several exceptions, evidence of other crimes or bad acts is not admissible in Maryland.” Hurst v. State, 400 Md. 397, 406 , 929 A.2d 157 (2007) (citations omitted).

The principle is embodied in Md. Rule 5-404, which states in pertinent part: (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts including delinquent acts as defined by Code, Courts Article, § 3-8A-01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence