Silva v. State

BARBERA, J. Petitioner Enrique Pizzaro Silva 1 was convicted by a jury in the Circuit Court for Baltimore County of two counts of first-degree premeditated murder. At trial, the State called three witnesses who were present at the crime scene: William Salmerón, Jose Arnold Castillo, and William Flores. Salmerón was an admitted accomplice to the murders; both Castillo and Flores denied involvement. Petitioner asked the trial court to instruct the jury that all three witnesses were accomplices as a matter of law, and, consequently, their testimony linking Petitioner to the murders required corroboration in order to be credited.

The trial court granted Petitioner’s request insofar as it applied to Salmerón, but denied it with respect to Castillo and Flores. The court explained that the evidence was not sufficient to deem either Castillo or Flores an accomplice as a matter of law; therefore, it was for the jury to determine whether Castillo and Flores were in fact accomplices, and if so, whether their testimony was corroborated. Petitioner noted a timely appeal to the Court of Special Appeals where he argued, among other issues not before us, that the trial court erred by refusing to instruct the jury that Castillo and Flores were accomplices as a matter of law. The Court of Special Appeals, holding that the trial court had correctly denied Petitioner’s requested jury instruction, affirmed the convictions in an unreported opinion.

We granted certiorari to consider whether the Petitioner was entitled to have the jury be instructed that Castillo and Flores were accomplices as a matter of law. We hold that Petitioner was not entitled to the requested instruction. We therefore affirm the judgment of the Court of Special Appeals. ²¹ I. Petitioner was tried on charges of the premeditated murder of Herrim Geovanny Alverez Salmaron and Hever Joel Gonzalez Garcia (hereinafter “the victims”). 2 The evidence adduced at trial established the following: On January 7, 2006, a group of MS-13 gang members encountered the victims at “Club Mate,” a Baltimore nightclub. The MS-13 members were Petitioner, Carlos Garcia, William Salmerón, Carlos Lizama, Jose Hemandez-Aguilar, and an individual known only as “Lonely.” Garcia, believing that the victims were members of a rival gang, “18th Street,” reminded Petitioner and the other MS-13 members that, according to gang rules, they were required to attack all 18th Street gang members on sight, so they had an obligation to make the victims “disappear.” Salmerón, who testified as one of the State’s lead witnesses, testified that Castillo and Flores, neither of whom was an MS-13 member, were also among the MS-13 members when Garcia made his announcement.

Both Castillo and Flores testified at trial that they were good friends of Salmerón and knew of his gang affiliation. Around closing time, the MS-13 members, together with Castillo and Flores, left the club with the two victims. The autopsy reports, admitted into evidence at trial, indicate that both victims were heavily intoxicated. Castillo rode in Salmeron’s car, and Flores drove his car with Petitioner, Garcia, and the two victims as passengers.

During the drive, Salmerón spoke with Garcia via cell phone to verify that the victims were 18th Street gang members. Salmerón also testified that, during the conversation, Petitioner got on the phone and said, “Yeah they 18th Street.” Satisfied, Salmerón eventually parked his car next to the athletic field at Arbutus Middle ²² School in Arbutus, Maryland. Flores parked his car on the opposite side of the street, facing the other direction. Flores later testified that the location looked like a “lonely place.” According to Salmerón, everyone in his car, including Castillo, walked to the athletic field.

Meanwhile, Petitioner and Garcia removed the first victim from Flores’s car, taking him by the hand and leading him down some steps onto the field. Flores testified that he and an unidentified person remained in his car with the second victim, who, apparently still intoxicated, was asleep in the back seat. Salmerón testified that, as soon as the first victim was brought to the field, Petitioner and Garcia began stabbing him. Salmerón, Lizama, and Lonely soon joined in the assault.

While the attack occurred, Flores testified that he repositioned his car so that it was on the same side of the road and facing in the same direction as Salmeron’s car. Shortly after, Petitioner and Garcia returned to Flores’s car, awoke. the second victim, and pulled him out of the car by his hair. Petitioner and Garcia dragged the second victim onto the field, where he too was stabbed to death. Salmerón initially testified that Castillo stabbed the second victim, but later retracted that statement, testifying that he did not know if Castillo “had stabbed somebody or not” because he had returned to his car “when the second victim got pulled out.” Toward the end of his testimony, Salmerón stated that neither Castillo nor Flores participated in the actual stabbings.

The bodies of both victims were left on the athletic field. Petitioner, the other MS-13 members, and Castillo and Flores drove to the house of Victor Argueta (another MS-13 member). There, Petitioner, the other MS-13 members, and Castillo changed out of bloody clothing, and gave the clothing to Argueta to be destroyed. Flores testified that he remained in his car and did not enter Argueta’s house.

The following day, Flores cleaned the blood from his car. When questioned on direct and cross-examination about their participation in the murders, both Castillo and Flores ²³ denied having knowledge of the plan to murder the two victims. Castillo repeatedly testified that, despite hearing Garcia talk, both in the nightclub and in the car, about making the two victims “disappear,” he did not think that Petitioner and the other MS-13 members would kill the victims. He also explained that he decided to get into Salmeron’s car, despite having heard Garcia talk about harming the victims, because “I had nobody [sic] to take me home” and “I didn’t even know that [they would kill two people].” Likewise, Flores repeatedly denied that he was aware of the plan to murder the victims.

He testified that he intended to go home after leaving the club, but Salmerón asked him to drive Petitioner, Garcia, and two people (ultimately, the victims in this case) to a party because they could not all fit in Salmeron’s car. Flores testified that when they reached his car Garcia was treating the two victims “like they were old friends ... they were hugging each other.” Flores also testified that, despite what Salmerón said, he had not overheard Garcia speak of his plan to murder the victims at the club, and, despite Garcia’s discussing the plan on his cell phone in Flores’s car, he could not hear what was said. Flores added that, “if I had known they were going to commit a homicide, then I would have refused to take the person there in my car.” It was Petitioner’s theory that Castillo participated in the murders by acting as a lookout. Castillo, however, was equivocal on the subject.

At one point during cross-examination, Castillo denied having said anything about being a lookout. Yet, immediately thereafter he testified: “I went right over there to the bottom of the step, and they tell [sic] me to look out so that no cars coming [sic].” He further explained: “I was looking upstairs and saw no cars coming down ... when ... they grabbed the [second victim], and he tried to run and he got hit by a bat ... and they start stab [sic] him.” He then stated that, “[w]hen there was a car coming and everything, they were, like, everything done [sic], and we just get [sic] into the car and left from that place.” Shortly after, however, when Petitioner’s counsel asked, “you knew what ²⁴ was going on .... you knew what was about to happen,” Castillo replied, “[t]hey just told me [to look for cars,] I didn’t know, but they were already stabbing the victims.” Flores also denied participating in the murders. He testified that he remained in his car during both murders and did not hear or see anything. When asked about the first victim being taken onto the field, Flores responded that he was not concerned because Garcia had been hugging the victim at the club, “so I never imagined that they were going to do something like that, but that’s what happened.

I don’t know why.” Flores also testified that he did not attempt to drive away when Petitioner and Garcia returned to his car covered in blood, because there “was another person in the [car]. I couldn’t go, [sic] because they were going to kill me anyway. What could I do?” He testified that he asked: “Why are you going to do something to [the second victim] if he is not doing anything but sleeping?” To that, someone outside the car replied, “Why are we going to leave a witness?” Flores also testified that after the second victim was murdered he heard Garcia tell the other MS-13 members that they would let Flores live because he was Salmeron’s cousin. 3 Flores admitted to driving the MS-13 members to Argueta’s house following the murders but added that he stayed in his car. When asked why he destroyed evidence the following day, Flores stated: “I cleaned my car.

I couldn’t leave blood in my car.” Finally, both Castillo and Flores testified that they had not seen Petitioner before the night of the murders. Castillo testified that he did not know Petitioner’s name. Flores testified that he knew Petitioner as “El Diablo,” but he could not positively identify Petitioner when the police showed him a photo line-up. When Petitioner’s counsel asked Flores about his uncertainty while talking to the police, Flores explained that he was now able to make a positive identification of Petitioner “because it’s not the same to see a person in a picture than to see a person in person.” ²⁵ At the close of the State’s case, Petitioner’s counsel made a motion for judgment of acquittal.

He argued that Salmerón, Castillo and Flores were accomplices as a matter of law whose testimony had not been corroborated. The State conceded that Salmerón was an accomplice as a matter of law because Salmerón previously admitted his participation in the murders. The State opposed the motion, however, arguing that the evidence regarding Castillo’s and Flores’s complicity was not clear and, even if all three were accomplices, their testimony was corroborated both by cell phone records placing Petitioner, Garcia, and Salmerón near Arbutus Middle School at the time of the murders, and by the security video of Club Mate’s parking lot showing Petitioner with the MS-13 gang members and the two victims on the night of the murders. The trial court denied the motion for judgment of acquittal.

The court reasoned that, although the evidence showed Salmerón to be an accomplice as a matter of law, the evidence regarding Castillo’s and Flores’s complicity was not clear enough to decide the issue as a matter of law; consequently, questions of their complicity as accomplices and, if so, whether there was corroboration of their testimony must be answered by a jury. Petitioner rested without putting on a defense case. He then renewed the motion for judgment of acquittal, re-raising the arguments he had made at the close of the State’s case. The trial court again denied the motion, stating: [T]his Court does not find based on the testimony that there’s sufficient evidence as a matter of law to find that [Castillo and Flores] were accomplices, and I will not so find.

But I do feel based on the testimony and examination that there’s sufficient evidence to make it a jury question, therefore, that issue will go to the jury. The court instructed the jury, pursuant to MPJI-Cr 3:11, “Testimony of Accomplice.” The instruction has two parts: “A” instructs, inter alia, that a particular witness was an accomplice; and “B” instructs, inter alia, that a particular witness may have been an accomplice. The court instructed the jury in pertinent part, pursuant to “A”, that Salmerón ²⁶ “was an accomplice,” and, pursuant to “B”, that Castillo and Flores “may have been accomplices.” The court further instructed the jury that they must decide whether Petitioner proved by a preponderance of the evidence that Castillo and Flores were accomplices, and, if so, whether their testimony was corroborated. 4 The jury found Petitioner guilty on both counts of first-degree murder. The court imposed upon Petitioner two concurrent life sentences without the possibility of parole.

Petitioner subsequently noted an appeal to the Court of Special Appeals. The Appeal On appeal to the Court of Special Appeals, Petitioner alleged that the trial court erred in denying Petitioner’s request ²⁷ to instruct the jury that Castillo and Flores were accomplices as a matter of law. 5 According to Petitioner, he was entitled to the instruction because the evidence clearly showed that both Castillo and Flores were aware of the plan to murder the victims and served in the participatory roles of lookout and getaway driver, respectively. The State disagreed. The State pointed out that both witnesses repeatedly denied prior knowledge of the planned murders; Castillo also denied acting as a lookout, and Flores denied acting as a getaway driver.

The State argued that, because reasonable minds could differ as to whether the evidence established that Castillo and Flores were accomplices to the murders, it was for the jury to decide as a matter of fact. The Court of Special Appeals, in an unreported opinion, upheld the trial court’s denial of Petitioner’s requested instruction and affirmed the judgments of conviction. The intermediate appellate court reasoned that there were “conflicts in the evidence” relating to whether Castillo and Flores were accomplices. The court concluded: Because the evidence at trial relating to Castillo and Flores was capable of multiple interpretations and inferences, the [trial] court did not err when it failed to conclude that Flores and Castillo “in some way advocate[d] or encourage[d] the” murders or that they participated in the murders “knowingly, voluntarily, and with common criminal intent with the principal offender[s].” (quoting State v. Raines, 326 Md. 582, 597 , 606 A.2d 265, 272 (1992) (internal citations and quotations omitted)).

We granted a writ of certiorari to consider a single question, which we have rephrased as follows: ²⁸ Did the trial court err in refusing to instruct the jury that two key State’s witnesses were accomplices as a matter of law whose testimony required corroboration?[ 6 ] II. It is well established in Maryland law that “ ‘[t]o be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime.’ ” Raines, 326 Md. at 597 , 606 A.2d at 272 (quoting Watson v. State, 208 Md. 210, 219 , 117 A.2d 549, 553 (1955)). “ ‘[T]he mere fact that a person witnesses a crime and makes no objection to its commission, and does not notify the police, does not make him a participant in the crime.’ ” State v. Foster, 263 Md. 388, 394 , 283 A.2d 411, 414 (1971) (citations omitted). Instead, the person must actually participate by “ ‘assisting], supporting] or supplementing] the efforts of another,’ ” or, if not actively participating, then the person must be present and “ ‘advise or encourage the commission of a crime’” to be considered an accomplice. Id. at 393 , 283 A.2d at 413 (citations omitted).

The test commonly used to determine whether a witness was an accomplice is “ ‘whether the witness could be indicted and/or punished for the crime charged against the defendant.’ ” Id., 283 A.2d at 413 (citations omitted). Under Maryland’s complicity law, “the spectrum of proof’ contains “three distinct bands”—accomplices as a matter of fact, as determined by a jury (or a judge, acting in his or her fact-finder role, at a bench trial), or accomplices as a matter of law vel non, as determined by a judge. Trovato v.