Murdock v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Baltimore City convicted Brandon Murdock, the appellant, of carjacking, robbery, conspiracy to commit armed carjacking, and conspiracy to commit robbery with a deadly weapon. He was sentenced to two 30-year prison terms, with all but 15 years suspended, for carjacking and conspiracy to commit armed carjacking, and a concurrent 15-year term for robbery. The remaining conviction was merged for sentencing purposes. On appeal, the appellant poses three questions for review, which we have reordered and rephrased as: I. Did the trial court err in ruling that the State did not commit a Rule 4-263(a) discovery violation?

II

Did the trial court err in allowing a police detective to testify that the appellant was a “target” of the investigation?

III

Did defense counsel render ineffective assistance of counsel by failing to impeach a State’s witness with certain prior convictions? For the reasons that follow, we shall affirm the judgments of the circuit court. ²⁷⁰ FACTS AND PROCEEDINGS On September 13, 2004, shortly before 11 p.m., Paige Bailey and her boyfriend, Gary Cooper, were robbed and carjacked at gunpoint in the parking lot outside of Bailey’s aunt’s apartment building at 1200 Kitmore Road in Baltimore City. Bailey had been staying with her aunt, Celeste Butler, for the previous month to care for her after recent knee replacement surgery. On the night in question, Bailey and Cooper both were at Butler’s home.

Around 10:30 p.m., Butler asked Bailey to run to the store to buy cigarettes. Cooper used Butler’s Ford Taurus to drive Bailey to a nearby convenience store. A few minutes later, they returned to the apartment complex. As Cooper drove into the parking lot, both he and Bailey noticed two men standing near the rental office.

Bailey thought she recognized one of the men as a resident of the apartment complex. Cooper pulled into a parking space in front of Butler’s apartment. As he did so, he could see in the rearview mirror that the two men were approaching the car. He brought the car to a stop and began to exit.

He urged Bailey, who was trying to find some change that she had dropped, to hurry up. Cooper then heard someone say, “[H]ey yo.” He turned and saw the same two men walking directly toward the back of the car. One man was carrying a gun and had his white T-shirt pulled up so that it covered his mouth and nose. He also had something, possibly the back of his T-shirt, covering the top of his head.

The second man was unarmed and his face and head were uncovered. Cooper noticed that the unarmed man was walking with a limp. The armed man approached Cooper as the unarmed man approached the passenger side of the car. When Bailey stepped out, the unarmed man was right in front of her, standing “eyeball to eyeball.” By then, he also had pulled his T-shirt up over his mouth and nose.

The armed man ordered Cooper to put his hands up and asked him if he had any money. Cooper replied that he did ²⁷¹ not. At the gunman’s direction, Cooper emptied his pockets and relinquished the keys to the Taurus. At the same time, the unarmed man grabbed Bailey’s purse strap, forced her around the back of the car and over to the sidewalk, and stole her purse.

At some point, Bailey threw her cell phone on the ground. The armed man led Cooper to the same location. Both assailants were screaming at Cooper and Bailey to “get on the F-ing ground.” Cooper and Bailey complied, lying facedown in the grass. The two assailants then picked up Bailey’s cell phone and drove away in the Taurus.

The police were called and responded to the scene. Bailey gave them the following description of the unarmed assailant: “light skinned, thin build, [5 foot 6 inches], 15-18 [years old], [brown] hair, white T-shirt (pulled up over mouth[) and] blue jeans shorts.” She described the armed man as “d[a]rk skinned, med[ium] build, [5 foot 9 inches], 15-18 [years old], white tank top w[ith] white T-shirt around mouth [and] nose, gray sweat pants.” Cooper described the unarmed man similarly, except that he estimated the man’s height as between 5 feet 4 inches and 5 feet 6 inches. He also added that the man had a “bush haircut” and “thick eyes.” 1 Cooper’s description of the armed assailant was identical to Bailey’s. Detective Richard Valenzia of the Baltimore City Police Department was assigned to lead the investigation.

The morning after the carjacking, September 14, he interviewed both Bailey and Cooper. They advised him that they had no further information (other than that provided the night before), but that they both believed they could identify the perpetrators. ²⁷² Later that same day, Detective Valenzia received a phone call from an anonymous tipster advising him to “[l]ook at Brandon Murdock for that carjacking.” The caller did not say anything else and promptly hung up. Detective Valenzia conducted a preliminary investigation and determined that the appellant was living in the same apartment complex as Butler and that he “fit the description[.]” 2 The next day, September 15, 2004, Detective Valenzia met with Bailey and Cooper separately and showed each of them an identical photographic array of six men, including the appellant. Cooper immediately selected the appellant’s picture.

He signed the signature line above the appellant’s photograph and wrote on the back of the sheet that the appellant was the “guy that helped in [the] carjacking. He grabbed [Bailey’s] purse and cell phone.” Bailey also viewed the photographic array. She was able to narrow the identification of her assailant down to two photographs, including that of the appellant. She did not, however, sign on the signature line on the photographic array sheet to signify that she recognized any of the men.

On September 18, 2004, in the Circuit Court for Baltimore City, the appellant was charged with armed robbery, armed carjacking, and related offenses. 3 The appellant was arrested and taken into custody on September 28, 2004. ²⁷³ In December 2004, the Taurus was recovered by the police. No evidence was recovered from the vehicle linking the appellant to the crimes. The case was tried to a jury from September 6 through September 9, 2005. The State called three witnesses — Detective Valenzia, Bailey, and Cooper — and introduced into evidence the photographic array signed by Cooper.

The appellant presented an alibi defense. He called two witnesses — his mother, Yvette Murdock, and his mother’s housemate, Freda Johnson — both of whom testified that he was home at the time of the carjacking. He also testified on his own behalf to that effect.' 4 At the close of the State’s case, defense counsel moved for judgment of acquittal on all counts. The motion was granted as to the two counts of theft of property with a value greater than $500 and denied as to all other counts.

At the close of all the evidence, defense counsel’s renewed motion for judgment of acquittal was denied. On September 9, 2005, the jury returned a verdict convicting the appellant of carj acking, conspiracy to commit armed carj acking, robbery, and conspiracy to commit robbery with a deadly weapon. After sentencing, the appellant noted this timely appeal. We shall include additional facts as necessary to our discussion.

DISCUSSION I. The appellant contends that the State violated its mandatory discovery obligations by not disclosing, pre-trial, that Bailey had positively identified him from a photographic array. He ²⁷⁴ argues that the trial court erred in ruling that the State did not commit a discovery violation, and that the court’s error was prejudicial. The State counters that the trial court correctly found that there was no discovery violation and that, even if a violation occurred, any error was harmless beyond a reasonable doubt. Facts Pertinent to the Discovery Violation Issue On April 8, 2005, the State submitted its pretrial discovery materials to the defense.

The materials disclosed that Cooper had positively identified the appellant from a photographic array. It included a copy of the array signed by Cooper and with his written narrative on the back of the form explaining his identification. The discovery also included notes from the police case file, including the following description of the presentation of the photographic arrays to each victim: Upon viewing array, Mr. Cooper positively identified [the appellant] as one of the individuals who committed the robbery. Upon interviewing Ms. Bailey, she advised that she did not get a good look at [her assailant] and was not sure if she could identify [him].

Upon viewing array, Ms. Bailey again advised that she was not sure and did not want to pick the wrong person. The State later supplemented this discovery with the information that Bailey “did narrow it down to two photographs but she was unable to make a definitive identification.” 5 At trial, the State called Detective Valenzia to testify, inter alia, about the presentation of the photographic array to Bailey. [THE PROSECUTOR]: And what, if anything, was [Bailey’s] response when she looked at the photographs? DETECTIVE VALENZIA: She, upon viewing the photographic array she had pointed to two suspects. She had pointed to the defendant and she had also pointed to ²⁷⁵ another subject, and she was unable to determine exactly who it was who had committed the robbery. [THE PROSECUTOR]: Okay.

So she was unable or unwilling to sign a photographic array indicating positively who she identified? DETECTIVE VALENZIA: Correct. Bailey was called as the State’s next witness. In the course of describing how she came face-to-face with the unarmed assailant as she exited the Taurus, she made an in-court identification of the appellant: BAILEY: So I opened the door and stepped out and when I stepped out I turned and he was standing there with the thing over, up to here, a white shirt.

He had on a white T-shirt. [THE PROSECUTOR]: Now, Ms. Bailey, I know that you just referred — you pointed at the defendant. Are you teUing the jury that you recognize him at this time? BAILEY: Yes, yes, I do. (Emphasis added.) When the prosecutor questioned her further about whether she had been able to identify the appellant from the photographic array, Bailey responded that she had “kind of narrowed it down to” two photographs “at the bottom,” but that the photograph of the appellant “look[ed] a little darker” than she had remembered.

However, she “knew it wasn’t [the man in the second photograph] because he was too heavy.” During cross-examination of Bailey, when counsel for the parties were at the bench arguing an unrelated objection, the following ensued: [DEFENSE COUNSEL]: While we’re up at the bench. THE COURT: Uh-huh. [DEFENSE COUNSEL]: I’ve been agonizing over a certain issue in this case and I would like to state it for your consideration if you don’t mind me doing so now and very briefly. I filed a motion for discovery in this case and one of the questions was who made a photo I.D. ²⁷⁶ THE COURT: Uh-huh. [DEFENSE COUNSEL]: And the answer to that which I got back which is in your file was that there was one photo I.D. THE COURT: Uh-huh. [DEFENSE COUNSEL]: And it’s by this Gary Cooper. THE COURT: Which you never got the array of the misidentification you’re saying? [DEFENSE COUNSEL]: Not only that, but it’s really a misstatement because if a person, I think it’s a misstatement if an individual is shown a photo array and identifies two people as the possible suspects, I think I’m entitled to know that.

After further discussion, it was established that (as we have explained) the State at first had given the defense only the copy of the photographic array signed by Cooper, but later supplemented its discovery with the information that Bailey had narrowed the assailant’s identity down to two possible suspects in the photographic array. Thus, the defense had been informed, prior to trial, that Cooper had made a positive identification of the appellant from the photographic array and that Bailey had narrowed her assailant’s identity down to two photographs in the same array (one of which was the appellant’s photograph). The court ruled as follows: I don’t think that the State has made any violation of their discovery. However, in light of the way this has sort of panned out and particularly in light of [Bailey’s] new comment here today, which I believe is probably a surprise to [the prosecutor] as it was to [defense counsel] about her being able to identify [the appellant in court], I’m going to give you some latitude.

Defense counsel later cross-examined Bailey about the photographic array: [DEFENSE COUNSEL]: ... And you looked at six photos? ²⁷⁷ BAILEY: Yeah. [DEFENSE COUNSEL]: All right. And what did — how many did you pick out? BAILEY: Two. [DEFENSE COUNSEL]: What did you say to the officer, if anything, when you selected two photographs?

BAILEY: I really don’t remember. I think I said that the one on the left, the last photo was a little too heavy. That’s about all. [DEFENSE COUNSEL]: Well, did it come down to [it] could be this one, it could be this one, or I don’t know who it is? BAILEY: Because I said I went straight to the last two photographs and then I said well he’s too heavy but the picture appeared dark so we just left it at that.

That’s all I remember of it. * * * [DEFENSE COUNSEL]: Well, did you identify anybody as the perpetrator? BAILEY: As I said, all I said was he looks too heavy and that was all I said. I can’t tell you anymore than that so those are the only two I looked at and went to. So that was the only person left but— [DEFENSE COUNSEL]:So you were able to eliminate— BAILEY: Exactly. [DEFENSE COUNSEL]: — all the others?

BAILEY: Exactly. [DEFENSE COUNSEL]: But when it came to these two you said he looks like he’s too heavy? BAILEY: And that was it. [DEFENSE COUNSEL]: And what about this one [referring to the appellant’s photo], that’s the guy? BAILEY: That’s what I said. ²⁷⁸ [DEFENSE COUNSEL]: You said that’s the guy? BAILEY: I said he looks a little too dark but it may be the lighting from the picture.

I said the picture looks too dark and that was all I said to them. [DEFENSE COUNSEL]: Well, I guess what we all want to know is were you identifying somebody in this photo array as one of the perpetrators? BAILEY: Yes. [DEFENSE COUNSEL]: That robbed you? BAILEY: Yes, I was. [DEFENSE COUNSEL]: You were? BAILEY: Yes, I was.

(Emphasis added.) At that point, the trial judge interrupted and began questioning Bailey to try to clarify whether she actually had made an out-of-court identification of the appellant: THE COURT: Okay. And so he [Detective Valenzia] started showing you these pictures, right? BAILEY: Right. THE COURT: And then at some point did you say no[,] no, no, or did you say uh-huh, uh-huh, uh-huh, or next one, next one, or did you just [] sit there quietly?

BAILEY: I don’t recall. I believe I may have said next or no. THE COURT: Okay. And at some point you said something different than you had said when you saw the previous pictures?

BAILEY: Yes. THE COURT: And what was that that you said that was different? BAILEY: I probably said no that’s not him go to the next one. THE COURT: Okay.

BAILEY: Go to the next one and then I said this may be him or something to that effect. ²⁷⁹ THE COURT: Okay. And then did he [] show [you] another picture after you said this may be him? BAILEY: Yes, this is the pictures that were here [referring to the State’s exhibit] and we went through each one of them like that. THE COURT: Okay.

You’re mixing my question. A moment ago you said you went no, no, no, and then you changed the no no to say this may be him. BAILEY: When I got to this picture [referring to the picture of the appellant]. THE COURT: And then did he continue to show you another picture or did he stop?

BAILEY: I believe he showed me the next picture. THE COURT: And what did you say when you saw that picture? BAILEY: I said I’m not sure but he looks too fat. THE COURT: Did the officer — did the officer ask you to do anything after you said what you just told me?

BAILEY: I don’t believe so, Your Honor. THE COURT: Did he ask you to write anything? BAILEY: No, he didn’t. THE COURT: Did he ask you to sign anything?

BAILEY: No, he didn’t. THE COURT: Were you making a positive identification or were you not sure who it was? BAILEY: I believe I was making a positive identification, but like I said it looked dark. The picture looked dark but the features looked the same.

THE COURT: Very well. And that’s why you answered [defense counsel’s] question the way you did. ²⁸⁰ BAILEY: Yes, Your Honor. (Emphasis added.) Defense counsel resumed cross-examination, trying to elicit a clear answer from Bailey as to whether she had positively identified the appellant from the photographic array. When asked again what she told Officer Valenzia when she saw the appellant’s picture, she replied: “I was pretty sure but I don’t know if I said pretty sure or I believe so or yes.

I know it wasn’t yes, but I was like I believe so or maybe. I don’t remember exactly what he asked or what my response was____” On re-direct, the prosecutor questioned Bailey further concerning the photographic array: [THE PROSECUTOR]: Ms. Bailey, I show you again the photograph[s] that we are talking about. "When you were shown this photographic array did you sign your name to any photograph? Were you willing and able to say for one hundred percent sure that the photograph at the ... bottom middle was the person that carjacked you?

BAILEY: I believe so. [THE PROSECUTOR]: You were willing to sign and say that it was one of those two? BAILEY: Yes. [THE PROSECUTOR]: But the fact is you only narrowed it down [to] two, right? BAILEY: Exactly. [THE PROSECUTOR]: Now, sitting in the courtroom today do you have any doubt at all on a scale of zero to one hundred percent that that person sitting right there is the person that carjacked you and your [] fiancee? * * * BAILEY: I have no doubt at all. (Emphasis added.) After a brief re-cross examination, the trial judge asked counsel whether Bailey could be excused.

Defense counsel asked to approach the bench and made two motions: ²⁸¹ [DEFENSE COUNSEL]: Your Honor, I get back to the original point here and I think at this time I’m going to move that the jury be instructed to disregard [Bailey’s] testimony. The reason I say it, the State is under an obligation to supply counsel with any information regarding a photographic identification. This lady, and I acknowledge that her testimony is not crystal clear in all respects but this — the essence of it is that she made a positive identification. She saw a picture.

She was satisfied in her own mind that that was the person. She was prepared to sign the picture and say it was the person. That’s a photographic identification. Now if the police officer neglects to have her sign her name on this sheet, well, that’s a deficiency on his part, but it doesn’t mean that there wasn’t a photographic identification and it doesn’t mean that we’re not entitled to be notified of that in advance so that we could perhaps have her interviewed on her own or whatever.

You know we come into this courtroom assuming that she made no I.D. and then we come to find out that she did make an I.D. [THE PROSECUTOR]: If I may briefly— [DEFENSE COUNSEL]: In fact, it’s not a case of narrowing it down to two. She looked at one and said well it couldn’t be him because he’s too heavy. This is the guy. That’s a positive identification.

We’re never notified. I think that the discovery rules entitle us to that information[. A] nd what is the remedy[?] I think it’s A, a mistrial or, B, that the jury be instructed to disregard her testimony. So I think I’ll revise my motion and I’d say I move A for a mistrial and if Your Honor fails to agree with me on that, then as an alternative that they be instructed to disregard her testimony.

THE COURT: The State wish to be heard? [THE PROSECUTOR]: Yes, Your Honor. I spoke to Ms. Bailey at least twelve times before today. Every single time she indicated to me that she was not able to make an ²⁸² identification. That she was unwilling to sign her name.

I think she’s trying to bolster her testimony at this point, but there was never, not once did she say she would have been willing to sign her name. She said she always thought it was one of the two. She never was [] sure which. I think in part feeling intimidated or nervous she was trying to make it sound better than it was, but my conversations with the detective and with her at all times she indicated she was only able to narrow it down____ (Emphasis added.) The trial judge denied both motions, opining: Well, let me just say something.

You know it would really be nice if when a witness got on the witness stand that we knew what they were going to say____ But in reality witnesses are lay people. Sometimes they get on the stand and they renege, they go south. They don’t say what they said originally. Sometimes they get on the stand and they have a sudden epiphany and they remember things that they didn’t remember up to that point, and sometimes they’re just plain old confused.

I don’t know what Ms. Bailey’s issue is today____ ... [B]ut [] it doesn’t give rise to a mistrial, but it certainly gives rise to a wonderful closing argument____ There is more than sufficient evidence and a manner to handle this witness and the way in which this testimony went____ * * * Now whether the jury believes her testimony today, that certainly is going to be up to them to decide, but I’m not going to grant a mistrial because the witness didn’t go the way we thought the witness should. I don’t believe that [the prosecutor] has sandbagged the Court or the defense, because had she had a hundred percent positive identification you best believe she would have used it____I think [the ²⁸³ prosecutor] was very surprised at what the witness said. I mean she appeared to be very shocked. Defense counsel moved to be allowed to introduce evidence that Bailey previously had informed the prosecutor that she could not make a positive identification.

The court declined to allow such evidence because it was “trial prep,” but offered to instruct the jurors that they should “examine the testimony of any eyewitness with great care” and to make specific reference to Bailey in the instruction. Defense counsel then asked if he could question Bailey about her prior conversations with the prosecutor; the court granted his request. The prosecutor offered to give her notes from her conversations with Bailey to defense counsel for him to use for this purpose. Defense counsel declined the offer, stating that he was satisfied with the prosecutor’s account of what had occurred.

After a lunch recess, Bailey was recalled to the stand and defense counsel questioned her about her pretrial conversations with the prosecutor: [DEFENSE COUNSEL]: Were you aware during any conversation that you had with [the prosecutor] that she was taking notes of your conversation, writing things down? BAILEY: No, I’m not sure. She may have mentioned it. I’m not sure. [DEFENSE COUNSEL]: Well, would it surprise you to know that her notes reflect that in these prior meetings that you had with her or discussions that you had with her you were never able to make a positive identification of anyone?

Would that surprise you? BAILEY: I guess maybe it would____Yes, it may surprise me. Bailey then was excused as a witness. At the close of all the evidence, the court instructed the jury in relevant part: You should also consider the witness’ certainty or lack of certainty, the accuracy of the witness’ statements or any prior description or the witness’ credibility or lack of credi ²⁸⁴ bility as to any prior description, as well as any other factor surrounding the identification.

In fact, in this case you have heard that prior to the trial Ms. Bailey did not identify the defendant and then there was testimony that there was an identification. It is for you to determine the reliability of any identification and for you to give it the weight you believe it deserves. (Emphasis added.) In closing, the prosecutor pointed out that Cooper had identified the appellant in open court and from the photographic array; that Bailey had identified the appellant in open court; and that, although at the time Bailey was shown the array, she only could narrow her selection to two photographs, as she testified at trial and viewed the array as an exhibit, she grew increasingly confident that “the person in the bottom middle picture” — i.e., the appellant — was her assailant. Defense counsel argued in closing that Bailey had lied on the stand when she claimed to have positively identified the appellant from the photographic array.

In rebuttal closing, the prosecutor, referring to the in-court identifications of the appellant by Cooper and Bailey, stated, “What we’ve got are two one hundred percent positive identifications of [the appellant], one hundred