McClurkin & Jackson v. State

KRAUSER, C.J. Tavon Jackson and Dijon MeClurkin, appellants, were tried together, by a jury in the Circuit Court for Baltimore City, for the attempted first-degree murder of Reginald Devon Maynard (whom we shall hereafter refer to as “the victim”) as well as for the offenses they perpetrated in committing that crime, which included the separate offense of assault upon the victim’s mother. 1 At their joint trial, recordings of telephone calls made by the then-incarcerated appellants, in which they sought to have others pressure the victim into recanting his identification of them as his assailants, were played for the jury. After they were convicted and sentenced for attempted first-degree murder and multiple attendant crimes, appellants noted separate appeals, which we subsequently consolidated, as they raise a common issue and that is: I. Whether appellants’ rights of confrontation under the Sixth Amendment were violated when the circuit court admitted into evidence, at their joint trial, recordings of telephone calls made by both appellants from jail. MeClurkin separately raises the following issue: II. Whether the circuit court erred in admitting into evidence a recording of a telephone call made by McClur-kin’s co-defendant, Jackson, as that call, according to MeClurkin, constituted inadmissible hearsay.

And Jackson presents three issues of his own. They are: ⁴⁶⁷ III. Whether the evidence was sufficient to convict him.

IV

Whether the circuit court erred in failing to merge his conviction and sentence for reckless endangerment into his conviction and sentence for attempted first-degree murder. V. Whether the circuit court erred in sentencing him for three separate conspiracies. Because the telephone calls were not of a testimonial nature, we hold that their introduction at trial did not violate the Confrontation Clause. We further hold that, although Jackson’s call was properly admitted against him as a statement of a party-opponent, it was inadmissible against McClurkin, but that erroneous admission amounted to no more than harmless error.

Hence, we shall affirm all of McClurkin’s judgments of conviction. We reach, however, a different result as to Jackson: Although there was sufficient evidence to sustain Jackson’s convictions for attempted first-degree murder, use of a handgun in the commission of a crime of violence, reckless endangerment, and illegal possession of a firearm, there was no evidence that he engaged in three separate conspiracies in the commission of those crimes. Consequently, the circuit court did err in sentencing him on more than one conspiracy count, and, because we also find that the court below erred in failing to merge Jackson’s conviction of reckless endangerment into his conviction of attempted first-degree murder, we shall not only reverse two of Jackson’s three convictions for conspiracy and vacate their corresponding sentences (leaving intact his conviction and sentence for conspiracy to murder) but also vacate his sentence for reckless endangerment as well. The Shooting 2 The victim, Devon Maynard, on the date of the shooting in question, not only lived on the same block as Tavon ⁴⁶⁸ Jackson, but the two men were once friends.

That amicable relationship ended, about a year before the shooting, when they had a falling out over Jackson’s failure to repay a $200 loan he had received from the victim. Eventually, their monetary dispute led to a “fistfight” between the two men that ended when the victim, in his words, “got the best of’ Jackson. Although they shook hands after the fight was over, Jackson would, in the months that followed, “taunt” the victim, pick fights with him, and “bump” into him “once or twice a week.” And, on one noteworthy occasion, Jackson, accompanied by his future co-defendant, McClurkin, tried to start a fight with the victim in an alleyway. On the night of the shooting, the victim spent the evening at the house of a friend, Antwon Weston, who lived on the same street as the victim and Jackson.

Jackson lived in a house that was between the homes of the victim and Weston. While walking home that night, the victim noticed, as he passed by Jackson’s house, that Jackson was “peeking out his door” at him. After arriving home and having something to eat, the victim told his mother, Katrina Dorsey, that he was going to return to Weston’s house and that he wanted her to watch him as he walked up the street, despairing that he would have to pass by Jackson’s house to reach Weston’s residence. His mother agreed, and, from the sidewalk in front of her house, she watched as he tread up the street toward Weston’s house.

As the victim began his perambulation, he observed Jackson standing outside his house and saw a maroon sport utility vehicle (“SUV”) double parked in front of Jackson’s house. That vehicle was occupied by McClurkin and another individual (later identified as “Donte Anderson”). When the victim drew near, McClurkin got out of the SUV, whereupon Jackson said something to McClurkin, who then reached into the back seat of the SUV. Once the victim had walked past Jackson, McClurkin, and the maroon SUV, Jackson began to follow the victim at a “slow pace,” while McClurkin, seemingly in tan ⁴⁶⁹ dem, walked quickly up the street, in what appeared to be an attempt to get ahead of the victim.

As the victim turned around to see what Jackson was up to, McClurkin approached and called out his name. When the two men were “face to face,” McClurkin shot the victim. Wounded, the victim began to run from the scene. While he was in flight, McClurkin fired several more times at him, wounding the victim once more.

The victim then fell but was soon able to pick himself up and continue his flight, crossing the street and then a park, before ending up in an adjacent street, where he saw a police car. To draw attention to himself, the victim threw his cell phone at that vehicle. The patrol car then stopped, and the officer got out and rendered assistance to the victim. Meanwhile, the victim’s mother, Katrina Dorsey, having observed the shooting, ran up the street toward McClurkin “screaming and shouting.” At that point, McClurkin pointed the gun at Dorsey, whereupon Jackson instructed McClurkin (whose nickname was “Man Man”), “No, Man, no.” In compliance with that command, McClurkin declined to take any further action.

He and Jackson then left the area, and Dorsey began to look for her son. After a few minutes had passed, a neighbor, upon hearing dogs barking behind her house, looked out the window and saw two men using a cell phone, while “looking back and forth” suspiciously. A few moments later, that same neighbor saw a maroon SUV drive up the alley with its headlights off. She then observed the vehicle stop, pick up the two men, and drive away.

Within minutes, officers in a police helicopter, who were responding to reports of a shooting, observed the same maroon SUV drive down the alley without its headlights on and relayed that information to officers on the ground. A police cruiser then pulled up behind the SUV and activated its lights, whereupon the SUV stopped, and three men “bailed out.” Minutes later, all three were apprehended. Forty days after the shooting, the now-hospitalized victim identified, for police, “Man Man,” that is, McClurkin, whom he ⁴⁷⁰ had known for “a couple of years,” as the person who had shot him; Jackson, with whom he had once been good friends, as the other individual who had participated in the shooting; and Anderson, whom he did not know, as the driver of the SUV. At that time, detectives presented the victim with three separate photographic arrays, and he selected McClurkin from the first array, Jackson from the second, and Anderson from the third.

The Telephone Calls at Issue Five days after the shooting, while incarcerated in the Baltimore City Detention Center, Jackson and McClurkin made separate telephone calls to unidentified women. In accordance with correctional policy and procedures, those calls were recorded, and, before any recordation began, an auditory notice was given to anyone on the line that the call would be recorded. During one of those calls, Jackson told the woman, with whom he was speaking, that he needed someone to pressure the victim and to stop him from telling people that he and McClurkin were involved in the shooting. McClurkin gave similar instructions to the person he called that day.

Two days later, McClurkin made two more telephone calls from the detention center, to another individual, hoping to enlist that person in an effort to induce the victim to sign a “paper,” which stated that McClurkin, Jackson, and Anderson had nothing to do with the shooting. During a second call to the same person later that day, McClurkin said that the “paper,” which he now identified as a “letter,” from the victim, would be a “help.” Otherwise, he warned that he and Jackson would be doomed to spend their lives in jail. Trial and Sentencing During the joint trial of Jackson and McClurkin, 3 the State offered, among other witnesses, the testimony of the victim ⁴⁷¹ and his mother, Katrina Dorsey. Then, over the objections of appellants, the State played, for the jury, the recordings of the four telephone calls — one made by Jackson, the other three by McClurkin — while the two men were incarcerated and awaiting trial.

Neither appellant ever took the stand nor presented any evidence. At the conclusion of appellants’ joint trial, the jury found Jackson guilty of attempted first-degree murder; using a handgun in the commission of a crime of violence; reckless endangerment; conspiracy to commit first-degree murder; conspiracy to use a handgun in the commission of a crime of violence; conspiracy to wear, carry, or transport a handgun on his person; and unlawful possession of a firearm. He was sentenced to life imprisonment for attempted first-degree murder, with all but seventy years suspended; to a consecutive term of five years’ imprisonment, without the possibility of parole, for using a handgun in the commission of a crime of violence; to concurrent five-year terms for reckless endangerment, conspiracy to use a handgun in the commission of a crime of violence, conspiracy to wear, carry, or transport a handgun on his person, and unlawful possession of a firearm; and a concurrent ten-year term for conspiracy to murder, to be followed by three years of probation. Of particular relevance to this appeal, Jackson received a separate sentence for reckless endangerment as well as three separate sentences for conspiracy.

The jury then found McClurkin, Jackson’s co-defendant, guilty of attempted first-degree murder; wearing, carrying, or transporting a handgun on his person; reckless endangerment; conspiracy to commit first-degree murder; conspiracy to use a handgun in the commission of a crime of violence; conspiracy to wear, carry, or transport a handgun on his person; and two counts of using a handgun in the commission of a crime of violence; as well as second-degree assault of Katrina Dorsey, the victim’s mother. McClurkin was sentenced, for the crimes committed against the principal victim, as follows: life imprisonment for attempted first-degree murder, with all but fifty years suspended; a consecutive term of ⁴⁷² five years’ imprisonment, without the possibility of parole, for using a handgun in the commission of a crime of violence; concurrent five-year terms for reckless endangerment, conspiracy to use a handgun in the commission of a crime of violence, and conspiracy to wear, carry, or transport a handgun on his person; and a concurrent ten-year term for conspiracy to murder. For the crimes committed against Dorsey, McClurkin was sentenced to five years’ imprisonment for second-degree assault, consecutive to the sentences previously imposed, as well as five years’ imprisonment, without the possibility of parole, for the second count of use a handgun in the commission of a crime of violence, concurrent with the sentence imposed for second-degree assault, all of which was to be followed by three years of probation. Following sentencing, Jackson and McClurkin noted separate appeals, which we thereafter consolidated for appellate review.

Discussion I. Jackson and McClurkin contend that the circuit court erred in ruling that the State could play, for the jury, recordings of jailhouse telephone calls made by appellants, given that neither appellant took the stand during trial and thus both were denied the opportunity to cross-examine the other about the statements he made during those telephone conversations. That ruling, appellants claim, violated their respective rights of confrontation under the Sixth Amendment. In Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), the Supreme Court held that the right of confrontation is violated by the introduction, at a joint trial of co-defendants, of an out-of-court confession made by a non-testifying co-defendant, implicating another co-defendant. But, for there to be what has become known as a “Bruton violation,” the statement at issue must qualify as “testimonial” hearsay, State v. Payne and Bond, 440 Md. 680, 716-18 , 104 A.3d 142 (2014), a standard confected by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 68 , 124 S.Ct. 1354 , ⁴⁷³ 158 L.Ed.2d 177 (2004).

In that landmark case, the Supreme Court held that the Confrontation Clause prohibits the admission, at trial, of “testimonial” hearsay of a non-testifying declarant unless he was “unavailable” to testify and the defendant had a prior opportunity to cross-examine him. As for non-testimonial hearsay, the Crawford Court opined that it does not fall within the sweep of the Confrontation Clause, observing that, “[w]here non[-]testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law[.]” Id. at 68 , 124 S.Ct. 1354 . Subsequently, in Whorton v. Bockting, 549 U.S. 406, 420 , 127 S.Ct. 1173 , 167 L.Ed.2d 1 (2007), the Court made clear that, “[u]nder Crawford , ... the Confrontation Clause has no application to [non-testimonial] statements.” Therefore, we must determine whether the statements admitted at the trial of Jackson and McClurkin— that is, the recordings of the telephone calls they placed from jail — were of a “testimonial” nature and thus within the purview of the Confrontation Clause. Two decisions of the Court of Appeals, although not directly on point, provide helpful guidance in this matter, as they address whether statements made, under circumstances that are, in many respects, comparable to those presented here, are “testimonial”: Cox v. State, 421 Md. 630 , 28 A.3d 687 (2011), and State v. Payne and Bond, 440 Md. 680 , 104 A.3d 142 (2014).

In Cox v. State, Ronald Cox and a Rodney Johnson were arrested and charged with first-degree murder and related offenses. Cox, 421 Md. at 638, 641 , 28 A.3d 687 . While they were incarcerated and awaiting trial, they spoke with a fellow inmate and long-time acquaintance of Johnson’s, Michael West. Id. at 639 , 28 A.3d 687 .

During that conversation, Johnson told West “about the murder and the subsequent arrest in detail, without provocation, while [Cox] stood close by, listening and occasionally filling in details.” Id. At Cox’s ensuing trial, over the defense’s objection, West was permitted to testify about that jailhouse conversation, thereby providing ⁴⁷⁴ the jury with Johnson’s out-of-court statements. Cox was subsequently convicted on all counts. Id. at 641 , 28 A.3d 687 .

When the question of the admissibility, under the Confrontation Clause, of Johnson’s jailhouse statements to West was raised before the Court of Appeals, our highest Court prefaced its answer to that question by stating the test for determining whether an out-of-court statement is “testimonial” is “whether a reasonable person in the declarant’s situation would have made the statement ‘with a primary purpose of creating an out-of-court substitute for trial testimony.’ ” Id. at 650 , 28 A.3d 687 (quoting Michigan v. Bryant, 562 U.S. 344, 358 , 131 S.Ct. 1143, 1155 , 179 L.Ed.2d 93 (2011)). Then, turning to the facts presented by that case, the Court observed that West “was not acting as a law enforcement agent; rather, the interaction [with Johnson and Cox] was a casual conversation between private acquaintances.” Id. It went on to further observe that it was “unlikely” that Johnson would have made the statements to West “if he believed the statements would be used in a later trial”; rather, Johnson’s statements, the Court noted, were “much more akin to casual remarks to an acquaintance than formal declarations to an official.” Id. (citation and quotation omitted).

Then, applying the test it had earlier articulated, the Court of Appeals found that, given that Johnson “did not intend to bear testimony against Cox” or “to establish facts for use in a criminal investigation or prosecution,” his “casual statements” to West were “not made for the primary purpose of creating a substitute for trial testimony” and were therefore not “testimonial.” Id. at 650-51, 28 A.3d 687 (citation and quotation omitted). If a “casual conversation” between inmates is not testimonial, neither is the type of conversation that occurs during a telephone call between an inmate and a friend, as occurred here. Moreover, as in Cox , neither appellant wished his telephone statements “to establish facts for use in a criminal investigation or prosecution.” Id. at 650 , 28 A.3d 687 (citation and quotation omitted). Therefore, Cox suggests that we conclude that the telephone calls at issue in the instant case were non-testimonial. ⁴⁷⁵ The second of the two Maryland cases which have a bearing on the issue before us is the very recent decision of the Court of Appeals in State v. Payne and Bond, 440 Md. 680 , 104 A.3d 142 (2014).

At appellants’ joint trial for first-degree felony murder and related charges, the State introduced, against both defendants, six recorded telephone conversations, lawfully obtained via a wiretap, “in which Bond was a participant but Payne was not, in which the discussions suggested an alibi on the night of the murder.” Id. at 683 , 104 A.3d 142 . Following their convictions for first-degree felony murder, kidnapping, and use of a handgun in the commission of a felony, the Court of Appeals was ultimately asked to decide whether “the six recordings were non-testimonial and, therefore, could be played during a joint trial of Payne and Bond,” as “evidence only against Bond,” without violating Payne’s confrontation rights. Id. at 714 , 104 A.3d 142 . The Court of Appeals, relying upon Cox , declared that those recordings were of a non-testimonial nature, as they “were ‘more akin to casual remarks to an acquaintance than formal declarations to an official.’ ” Payne and Bond, 440 Md. at 716 , 104 A.3d 142 (quoting Cox, 421 Md. at 650 , 28 A.3d 687 ).

And, “because the six wiretapped recordings” were “non-testimonial,” their admission in a joint trial did “not implicate Payne’s Confrontation Clause rights.” Id. at 717-18 , 104 A.3d 142 . The statements made by each of the appellants, during their respective jailhouse telephone calls, were also clearly “more akin to casual remarks to an acquaintance than formal declarations to an official.” Id. at 716 , 104 A.3d 142 (quoting Cox, 421 Md. at 650 , 28 A.3d 687 ). Finally, while admittedly neither Cox nor Payne and Bond addressed the precise question that now confronts us, namely, whether jailhouse telephone calls are “testimonial” under Crawford and its progeny, the United States Court of Appeals for the Fourth Circuit has addressed that question recently, in United States v. Jones, 716 F.3d 851 (4th Cir.), cert. denied, - U.S. -, 134 S.Ct. 496 , 187 L.Ed.2d 335 (2013). ⁴⁷⁶ Jones, while serving in the United States Navy, masterminded a conspiracy to arrange, for a fee, fraudulent marriages between several of his shipmates and foreign nationals. Id. at 854.

One of those sailors who entered into a fraudulent marriage, Jones’s cousin Otis, was subsequently incarcerated (for reasons not indicated in the opinion). Id. While incarcerated, Otis placed several telephone calls to Jones and another co-conspirator, Austin. As in the instant case, each of those calls was recorded, and a notice was given before each call was connected “that ‘all calls are subject to recording.’ ” Id. at 855.

At Jones’s trial, the prosecution introduced those recorded telephone calls, over defense objection. After he was convicted of multiple offenses, Jones appealed, contending that the admission of statements made by Otis and Austin, during the jailhouse telephone calls, violated his right of confrontation. He pointed out that he had been given no “opportunity to cross-examine the declarants before or at trial” and that the declarants’ awareness that they were being recorded rendered their statements “testimonial.” Id. at 856. The federal appellate court began its analysis of that issue by articulating the test for determining whether a statement is “testimonial,” a test comparable to the one articulated in Cox : [Statements are testimonial when a reasonable person in the declarant’s position would have expected his statements to be used at trial — that is, [when] the declarant would have expected or intended to “bear witness” against another in a later proceeding.

Id. (citation and quotation omitted). Then, in applying that test, the Fourth Circuit rejected Jones’s assertion that a declarant’s knowledge that he is being recorded renders his statement “testimonial,” avowing that “just because recorded statements are used at trial does not mean they were created for trial.” Id. at 856 (citation and quotation omitted). Indeed, “Otis and Austin,” observed the court, “certainly did not speak on these phone calls for that reason.” Id.

Rather, the recorded telephone calls were “casual conversations,” which “primarily concerned Otis’s emotional ⁴⁷⁷ state and the prison conditions.” Id. In fact, “[n]owhere” in the recorded conversations, observed the Fourth Circuit, did “either Otis or Austin demonstrate an intent to ‘bear witness’ against Jones,” an observation which it later bolstered by noting that “any incriminating statement made during these conversations tended to also incriminate them in the fraudulent scheme.” Id. The Fourth Circuit further noted that “a prison has a significant institutional reason for recording phone calls outside of procuring forensic evidence,” specifically, the need to ensure its security, and that to adopt the rule Jones proposed, the federal court noted, would have required it “to conclude that all parties to a jailhouse phone call categorically intend to bear witness against the person their statements may ultimately incriminate.” Id. Such a categorical rule, it observed, ignores the fact that “a declarant’s understanding that a statement could potentially serve as criminal evidence does not necessarily denote ‘testimonial’ intent,” as well as the “context! ]” in which any hearsay must be analyzed for confrontation purposes.

Id. The Fourth Circuit therefore rejected this rule, a rule championed by Jones, which, we observe, is precisely the same as that advanced by appellants. Applying the reasoning of Cox, Payne and Bond, and Jones , we conclude that the statements at issue in the instant case— the recorded jailhouse calls by Jackson and McClurkin — were non-testimonial, because a reasonable person in the declarant’s position would not have made the statement “with a primary purpose of creating an out-of-court substitute for trial testimony.” Cox, 421 Md. at 650 , 28 A.3d 687 (quoting Bryant, 562 U.S. at 358 , 131 S.Ct. at 1155 ). In their respective calls, Jackson and McClurkin instructed the recipients of the calls that the victim needed to be pressured into stating that neither one of them was involved in the shooting.

As the primary purpose of those calls was clearly to induce the victim to change his account of who was involved in the shooting, it hardly needs stating that no reasonable person would have made such calls with a purpose, ⁴⁷⁸ “primary” or otherwise, that they be used as evidence, at his or her future trial, given their inculpatory nature. See Jones, 716 F.3d at 856 (observing that “any incriminating statement made during these conversations tended to also incriminate” the declarants themselves, belying any purported “testimonial” purpose); Payne and Bond, 440 Md. at 716 , 104 A.3d 142 (stating that “surreptitiously monitored private conversations and statements contained in wiretap recordings are not testimonial” because “the speakers certainly did not make the statements thinking that they would be available for use at a later trial”) (citations and quotations omitted). Indeed, like the out-of-court statements in Cox, 421 Md. at 650 , 28 A.3d 687 and the wiretapped telephone calls in Payne and Bond, 440 Md. at 716 , 104 A.3d 142 the calls at issue here were “casual conversations between private acquaintances,” a conclusion which other appellate courts, facing the same issue under similar sets of circumstances, have drawn. Jones, 716 F.3d at 856 (characterizing recorded jailhouse telephone calls as “casual conversations”); United States v. Castro-Davis, 612 F.3d 53 (1st Cir.2010) (and cases cited therein) (holding that a jailhouse telephone call was not testimonial hearsay), cert. denied, — U.S.-, 131 S.Ct. 970 , 178 L.Ed.2d 797 (2011).

We further note that, were we to adopt the rule advocated by appellants in this case, we would be forced to conclude, merely because correctional institutions record outgoing telephone calls and routinely notify the participants that their conversations are being recorded, “that all parties to a jailhouse phone call categorically intend to bear witness against the person their statements may ultimately incriminate.” Jones, 716 F.3d at 856 . Such a categorical rule defies logic and its more pedestrian partner, common sense, and is, moreover, inconsistent with the “contextual inquiry” that is required in assessing whether a statement is “testimonial.” Id. Since the calls made by Jackson and McClurkin were not testimonial, the Confrontation Clause did not prohibit the admission of the recordings of those calls at their joint trial. But that does not end our discussion of the admissibility of the recordings at issue, as McClurkin also challenges the admis ⁴⁷⁹ sion of Jackson’s call on evidentiary grounds, specifically, that Jackson’s call constituted inadmissable hearsay.

II

McClurkin contends that the call made by Jackson while he was in jail, during which he instructed the person whom he called to get someone to “holler” at and “put the pressure” on the victim to change his story, was inadmissible hearsay. 4 That potentially inculpatory instruction, according to McClur-kin, was not a statement made by a co-conspirator during the course and in furtherance of a conspiracy because the conspiracy in question, that is, the conspiracy to harm the victim, had ended by the time Jackson and McClurkin were arrested and incarcerated. Nor should that telephone directive have been admitted as a statement against penal interest, claims McClur-kin, as the circuit court failed to consider