Mines v. State

J. FREDERICK SHARER (Retired, Specially Assigned), J. After a jury trial in the Circuit Court for Anne Arundel County, David Calvin Mines, appellant, was convicted of attempted armed robbery, attempted robbery, second-degree assault, and openly wearing and carrying a deadly and dangerous weapon with intent to injure another. 1 Appellant presents the following four questions for our consideration: 1. Did the circuit court err in permitting irrelevant and highly prejudicial testimony? 2. Did the circuit court err in permitting the prosecutor to improperly shift the burden of proof during the cross-examination of appellant? 3. Did the circuit court err in permitting testimony as to the victim’s degree of confidence in his identification of appellant as the perpetrator? 4.

Did the circuit court err in permitting the prosecutor to make improper and prejudicial comments during closing and rebuttal argument? For the reasons set forth below, we shall affirm. ²⁸⁶ FACTUAL BACKGROUND Although appellant does not challenge the sufficiency of the evidence, a brief review of the facts is helpful for placing the issues presented in context. In summary, the jury heard the following: On March 17, 2010, Jesus Pinones 2 was working as a delivery driver for Domino’s Pizza. At about 8:20 p.m., he went to an address in Maryland City, and delivered a pizza.

As he was returning to his car, he heard someone say “hey, you, ... stop.” Pinones entered his ear on the passenger side because he had problems with the driver’s side door. As he was getting ready to lock the passenger side door, a black male with dreadlocks carrying a knife approached and opened slightly the passenger side door. Pinones was able to get the door closed and locked, but then the man “started scraping [the] glass with his knife,” which had a four to six-inch blade. The man told Pinones, “to get out and give him the money otherwise he was going to stab [him].” Pinones reached for his cell phone, which was under his seat and, once he obtained it, he noticed that the man had started to run away.

Across the street, Pinones saw a white male wearing a baseball cap and a gray hoodie, and a black male, both of whom started running away with the man who had tried to rob him. Pinones drove after the men for about a block before he was “intercepted by Anne Arundel County Police.” Pinones told the police the direction in which the men had run. Several Anne Arundel County police officers responded to the call for the attempted robbery of Pinones. Ultimately, the police detained, and arrested, appellant and two other males.

A search of the three disclosed a folding pocket knife in the possession of Xavier Howell. No knife was found on appellant. ²⁸⁷ Appellant testified in his own defense. He told the jury that on the evening of the attempted robbery of Pinones, he was playing basketball with several others and, thereafter, he drove his girlfriend, their child, and others home. Appellant and some friends then drove to another location to visit with other friends, including Tony Ash and David McCowski.

While at that location, Corporal Rayburn Smallwood approached and requested identification. All present complied with his request. Subsequently, another officer arrived, presumably with Pinones in his police car, and appellant and others were placed in front of the headlights of the cruiser. Thereafter, appellant was taken into custody.

Appellant called several defense witnesses. The most significant, relevant to the issues presented in this appeal, was Deontre Rose Lyons. Lyons testified that in the days following the attempted robbery, he told police that he had approached a pizza delivery driver with the intent to rob him, but that he abandoned that plan when the driver jumped into his car and drove away. The police told him he could get into trouble if he was lying, and Lyons recanted.

Lyons testified that he only went to the police initially because appellant told him that if he turned himself in, he would only get “like probation or something, house arrest,” because he was still a minor. In addition, Laura, a friend of appellant’s girlfriend, Brittney, told him that if he did not turn himself in, “they was going to get somebody to put a hit out on [him].” Lyons testified that he did not know anything about the robbery. Daniel Adams testified that on the night of the robbery, he was playing basketball with appellant, Lyons, and others. When they were finished, appellant and two others left in a car.

Adams, Lyons, and others began walking home when they saw a pizza delivery person. Someone in the group suggested robbing the man. Everyone in the group kept walking, but Lyons went across the street. About 30 seconds to a minute later, Lyons returned to the group and said that ²⁸⁸ he had tried unsuccessfully to rob the pizza delivery man, and had tried pulling on the man’s car door, but it was locked.

Jonathan Whalen testified that he was playing basketball with appellant and others on the night of the robbery. After the game broke up, he walked with a group that included Lyons. Whalen saw a pizza delivery person and Lyons “had an idea to rob” him, but the group “wanted nothing to deal with it.” Whalen watched as Lyons pulled a knife out of his pocket, walked across the street, and approached the pizza delivery man. Lyons then returned to the group and “said that he had attempted to rob the pizza guy, but he got nothing out of it because he got into his car and locked the doors.” Whalen admitted on cross-examination that he gave his statement to the police about eight days after the robbery had occurred, and after he had talked to appellant’s girlfriend, Brittney.

In rebuttal, the State called Anne Arundel County Police Officer Megan Paulits, who testified that four days after the attempted robbery, Daniel Adams came to the police station to speak with her. Adams told Paulits that he saw Lyons walk up to the pizza delivery person and, when he returned, Lyons said that he had attempted to rob the delivery man. Paulits wrote a report of her conversation with Adams and passed it along to Detective John Dutton. Dutton testified that appellant was arrested and charged on a Friday night.

The following Monday, he began receiving calls from various friends and family members of appellant and the other co-defendants who were arrested with him, all saying that “the wrong man has been locked up” and that they had information about “who really did this crime.” To follow up, Dutton interviewed numerous individuals, and went back to the victim, Piñones, and interviewed him again. Dutton called Adams, who had told him that he heard Lyons say he was going to rob the pizza delivery man, and saw him walk up to the delivery man. Thereafter, Lyons returned to the group and told them he had attempted to rob the delivery ²⁸⁹ man. In subsequent discussions, appellant’s colleagues continued to implicate Lyons.

Dutton spoke with Lyons, who reiterated that he had planned to rob the pizza delivery man, but abandoned the plan. Lyons denied ever displaying a knife and denied ever having any interaction or discussion with the delivery man. When Dutton told Lyons that he was facing four felonies, Lyons became flustered, and said that Brittney had talked him into going to the police and he did not think he would be in any trouble because he was only 17 years old. After meeting with Lyons, Dutton again interviewed Pinones, who reiterated that the person who attempted to rob him had dreadlocks and the person who he saw five minutes after the robbery that was shown to him by Officer Small-wood and Officer Williams, he was a hundred percent positive that the Defendant who is-who’s being shown at the time was the man who robbed him, through face, through dreadlocks, and through the clothes he was wearing.

DISCÜSSION 1. Prejudicial Testimony Appellant first contends that the circuit court erred in permitting irrelevant and highly prejudicial testimony by Deontre Lyons that “some guys” had broken his jaw and “it was wired shut.” At trial, Lyons gave the following testimony, which we set forth at length in order to provide context: [PROSECUTOR]: So why did you go on the 18th of March and tell the police that you had walked up to a pizza delivery guy and that you—and had the intent to rob him? [LYONS]: Because they told me if I didn’t they was going to get somebody to kill me. Q. Were you afraid? A. Yes, I was.

Q. Have you moved from your home? Have you— A. Yes. ²⁹⁰ Q. —moved from your address? A. Yes. Q. Because you’re afraid?

A. Yes. Q. Have you been assaulted at all since this case by anybody? A. Yes. Q. What happened to you?

A. Well, I was in my friend, Terrell’s house, and I was just about to go home and like ten minutes after that some guys came up and broke my jaw. Q. When did that happen? A. This happened on the 28th of November, I think. Q. You mean October because its November— A. Yeah.

Yeah. October. October. Q. So is your jaw wired shut right now?

A. Yes, ma’am. Q. And do you know why these guys walked up to you and beat you up and broke your jaw? A. I don’t know. [DEFENSE COUNSEL]: Your Honor, I’m going to object to that entire line of questioning as irrelevant and ask that it be stricken. THE COURT: Overruled. [DEFENSE COUNSEL]: Note my exception.

THE COURT: You don’t need to note exceptions. You know that. [Prosecutor]: Were you afraid and that was your motivation to go and tell the police that you had been involved in a robbery? [LYONS]: Yes, ma’am. Q. Did you ever see the pizza guy that we’re talking about that night— A. No. Q. —do you remember? You have to speak yes or no. ²⁹¹ A. No, ma’am.

Q. Okay. Did you ever have a knife that night? A. No, ma’am. Q. Now you don’t know anything about the robbery at all.

Is that right? A. Yes, ma’am. Q. Are you still afraid today? A. A little bit.

Yeah. Q. Are you afraid of David Mines and his girlfriend? A. Yeah. A little bit.

Appellant argues that there was no testimony to connect the broken jaw to appellant or the attempted robbery of Pinones. Thus, he argues, Lyons’s testimony “left the clear impression in the jury’s [sic] minds that the broken jaw was related to this case and was done at appellant’s direction or for his benefit.” In support of this argument, appellant points to the fact that Lyons testified that he did not know who broke his jaw and did not know why he was hit. We note, preliminarily, that appellant specifically objected to Lyons’s testimony on the ground that it was irrelevant, but at no time did he argue below that the testimony was prejudicial. As a result, the argument that Lyons’s testimony was prejudicial was not preserved for our consideration.

Md. Rule 8-131. Even if the issue had been preserved, however, reversal would not be required. The admissibility of evidence is left to the sound discretion of the trial court. Md. Rule 5-104(a)(“Preliminary questions concerning ... the admissibility of evidence shall be determined by the court----”); State v. Simms, 420 Md. 705, 724-25 , 25 A.3d 144 (2011)(and cases cited therein); Hendrix v. Burns, 205 Md.App. 1, 29 , 43 A.3d 415 (2012)(“The decision whether to allow or preclude the admission of evidence is generally committed to the sound discretion of the trial court.”).

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 ²⁹² of discretion.’ ” Decker v. State, 408 Md. 631, 649 , 971 A.2d 268 (2009)(quoting Merzbacher v. State, 346 Md. 391, 405 , 697 A.2d 432 (1997)). 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.’ ” Gray v. State, 388 Md. 366, 383-84 , 879 A.2d 1064 (2005)(quoting Dehn v. Edgecombe, 384 Md. 606, 628 , 865 A.2d 603 (2005)). Maryland Rule 5-401 defines relevant evidence as follows: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. As a general rule, relevant evidence is admissible while irrelevant evidence is not admissible.

Md. Rule 5-402. 3 Lyons’s testimony about why his jaw was wired shut was relevant. The jury was instructed that one of the factors to be considered in evaluating a witness’s credibility is “the witness’s behavior on the stand and manner of testifying.” Before Lyons testified, the prosecutor advised the judge that “his jaw is wired shut. So if you think that he is talking weird, it’s because of that, his jaw.” Lyons’s testimony about having his jaw wired shut provided the jurors with an explanation for his manner of speaking. Moreover, as the above-quoted testimony reveals, Lyons did not know who had beaten him or why he had had his jaw broken.

As a result, it could be just as reasonably inferred that neither appellant nor his colleagues, were responsible for the beating, and Lyons’s testimony would not be prejudicial. We need not resolve this issue on that ground, however, because even if Lyons’s testimony was erroneously admitted, it was harmless beyond a reasonable doubt. ²⁹³ Lyons gave other testimony, that was not objected to, about specific threats that were attributed to or linked to appellant. For example, Lyons told Detective Dutton that Brittney’s friend, Laura, told him that if he did not turn himself in, “they was going to get somebody to put a hit out on me.” He also testified, without objection, that appellant told him to turn himself in because he was still a minor and would “[pjrobably get like probation or something, house arrest.” Finally, Lyons testified without objection, that he was still a “little bit” afraid of appellant and his girlfriend. In light of this unobjected-to testimony, any error in admitting Lyons’s testimony that his jaw had been broken was harmless beyond a reasonable doubt. 2.

Shifting the Burden of Proof Appellant next contends that the trial court erred in permitting the prosecutor to improperly shift the burden of proof during cross-examination of appellant, by asking appellant about what he was doing in the two hours between when he stopped playing basketball and when he was stopped by the police. The following colloquy occurred: [PROSECUTOR]: Okay. What were you doing for those two hours? [APPELLANT]: Like I said, we dropped my girl and her friend off at the house. We went to McDonald’s, got something to eat, and then we came back to Federalsburg to talk to my friend in the driveway, so we was just standing in the driveway talking.

Q. What’s that friend’s name in the driveway? A. His friend—his name is actually Tony. Q. Okay. Tony what?

A. Ash. Q. So Tony Ash can account for your whereabouts during the time of the crime, can’t he? A. Yes. Q. But he’s not here to testify, is he? [DEFENSE COUNSEL]: Your Honor, I’m going to object. ²⁹⁴ THE COURT: Overruled. [PROSECUTOR]: And this neighbor, Mr. McCowski, he could also testify [sic] your whereabouts at the time of the crime, but he’s not here either, is he? [DEFENSE COUNSEL]: Pm objects [APPELLANT]: He was here yesterday. [DEFENSE COUNSEL]: Objection to that.

THE COURT: Overruled. [PROSECUTOR]: And your baby’s mother, she’s not testifying about where you were in the minutes before the crime as well? [APPELLANT]: I mean, she could. Yeah. [DEFENSE COUNSEL]: Again, objection. THE COURT: Overruled. Appellant argues that, in asking those questions, the prosecutor “sent a message to the jury that it was appellant’s responsibility to secure the presence of witnesses at trial,” and thereby improperly shifted the burden of proof from the State to appellant.

The issue again arose as a result of the State’s closing arguments. Appellant contends that the prosecutor’s reference, in closing, to appellant’s failure to call certain witnesses amounted to a “trespass upon [his] Constitutional rights,” citing Wise v. State, 132 Md.App. 127, 132 , 751 A.2d 24 (2000). In closing, the prosecutor told the jury: When [appellant] testified he told you something very interesting. He told you it was two hours between when he played basketball and when he was arrested, and all he could say was that he went to McDonald’s and then hung out outside of Horsehead in Federalsburg.

He has no other human being and he listed all of his friends who would account for his whereabouts. None of those people have been called to testify. And I say that because he brought that out. He said he was with his girlfriend.

He was with his girlfriend’s friend. He was outside the neighbor’s house at Federalsburg and ²⁹⁵ Horsehead talking to that man for some period of time, and then he talked too about someone’s uncle or his girlfriend’s friend’s uncle who was across the street and came over. So at one point I asked him, okay. At least four to five people knew what you were doing in that two-hour period and knew what you do and did in the five or ten minutes before the police came and knew what you were doing and could say that you weren’t the person robbing, and none of those people were called as witnesses.

So when you go back to the jury room, you can think about that. The State doesn’t know who those people are. Those are [appellant’s] friends and witnesses. We are persuaded that neither the prosecutor’s cross-examination of appellant, nor the comments in closing arguments, impaired his Fifth Amendment rights, or could be construed as an improper shifting of the burden of proof. 4 We first explain that “[m]anaging the scope of cross-examination is a matter that falls within the sound discretion of the trial court.” Simmons v. State, 392 Md. 279, 296 , 896 A.2d 1023 (2006).

We will not disturb such a ruling absent a showing of prejudicial abuse of discretion. Fleming v. Prince George’s County, 277 Md. 655, 679 , 358 A.2d 892 (1976). In support of his argument, appellant directs our attention to Robinson v. State, 20 Md.App. 450 , 316 A.2d 268 (1974); Woodland v. State, 62 Md.App. 503 , 490 A.2d 286 (1985); and, Wise v. State, 132 Md.App. 127 , 751 A.2d 24 (2000). In our view, those cases do not directly address the issue presented here.

In Robinson , the defendant did not testify in his own defense, and the trial judge erroneously instructed the jury that an alibi is an affirmative defense that must be proved by the defendant by a preponderance of the evidence. Robinson, 20 Md.App. at 455 , 316 A.2d 268 . On appeal, we recognized ²⁹⁶ the error, and acknowledged that an accused does not have the ultimate burden of proving an alibi. Id. at 461-64 , 316 A.2d 268 .

We held, however, that the error in that case was harmless beyond a reasonable doubt. Id. In Woodland , during voir dire of prospective jurors, the court identified, from a witness list provided by defense counsel, two individuals as potential character witnesses in the case, but neither witness was called by the defendant to testify at the trial. Woodland, 62 Md.App. at 505 , 490 A.2d 286 .

Woodland testified in his own defense and denied any involvement in the crime. Id. On cross-examination, the prosecutor developed the name Abdula Mateen Matuking, a friend of Woodland’s, who was incarcerated at the time of trial and was not called as a witness by the defense. Id. at 506 , 490 A.2d 286 .

During rebuttal closing testimony, the prosecutor argued on several occasions that neither of the witnesses identified during voir dire, nor Matuking, had been called to testify. Id. at 506-07 , 490 A.2d 286 . Woodland’s objections were overruled. After the court had instructed the jury, defense counsel requested that the court further instruct the jury that the defendant had no obligation to produce any evidence, but the court declined to give such an instruction.

Id. at 508 , 490 A.2d 286 . Woodland argued on appeal that the trial court erred in allowing the State to argue the inference to be drawn from a missing witness when the State was not entitled to a missing witness instruction, and that that error, coupled with the court’s failure to give appellant’s requested jury instruction, shifted the burden of proof from the State to Woodland. Id. at 509 , 490 A.2d 286 . After reviewing the circumstances in which the missing witness rule 5 applies, we concluded, inter ²⁹⁷ alia, that even if the missing witness rule applied to character witnesses, the testimony of the two character witnesses would have been cumulative to the testimony of other character witnesses who testified at trial.

Id. at 511 , 490 A.2d 286 . With respect to Matuking, we concluded that he was not a material witness whose testimony would elucidate the transaction and, as a result, the missing witness rule did not apply, the prosecution was not entitled to a missing witness instruction, and the prosecutor’s argument was improper. Id. at 512, 514 , 490 A.2d 286 . We then considered whether the error was harmless, and concluded that the prosecutor’s improper arguments, made during rebuttal closing argument, when Woodland had no opportunity to respond, had the effect of shifting the burden of proof to appellant.

Id. at 516-17 , 490 A.2d 286 . As a result, it could not be said that the trial court’s failure to give the requested instruction was harmless beyond a reasonable doubt. Id. In Wise , the prosecutor made several statements during closing and rebuttal argument pertaining to the defendant’s failure to produce witnesses in his defense or to testify in his own defense.

Wise, 132 Md.App. at 139-40 , 751 A.2d 24 . Wise argued on appeal that these remarks shifted the burden of proof. In considering Wise’s argument, we recognized a development in the law pertaining to a prosecutor’s comment on a defendant’s failure to testify: ²⁹⁸ In 1965, the United States Supreme Court condemned a prosecutor’s comment on a defendant’s failure to testify and held that, in doing so, the prosecutor violated a right protected by the Fifth Amendment. Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965)....

However, the courts since Griffin have distinguished those comments by prosecutors about the failure to offer evidence regarding matters for which the defendant is the only witness and those for which the evidence is available from other defense witnesses as well. The decisions, in other words, have distinguished between those comments about a defendant’s failure to explain by testifying and those comments about the failure of the defendant to explain through other witnesses. U.S. v. Mayans, 17 F.3d 1174, 1185 (9th Cir.1994). Id. at 142-43 , 751 A.2d 24 .

In Wise , defense counsel claimed during opening statement that he would produce certain evidence, but failed to do so at trial. The prosecutor’s closing argument drew “the jury’s attention to the fact that defense counsel had failed to fulfill his prediction in opening statement as to what he would develop at trial.” Id. at 145 , 751 A.2d 24 . Wise argued that the prosecutor’s comments went further and implied that the defendant had a duty to present evidence. In holding that the trial court did not err in failing to sustain Wise’s objections to the prosecutor’s comments, we wrote: It is clear that Maryland holds such remarks to be unfair comment and does