Sowell v. State

DAVIS, Judge. Brian Lamont Sowell and Terrell Roshsay Pinkney, appellants, were convicted by a jury in the Circuit Court for Prince George’s County. Sowell was convicted and sentenced as follows: (1) armed robbery — twenty years, (2) robbery— merged, (3) use of a handgun — fifteen years, consecutive to the armed robbery conviction, (4) use of a handgun — fifteen years, consecutive to the armed robbery conviction and, (5) first degree assault — ten years consecutive to all other convictions. Pinkney was convicted and sentenced as follows: (1) armed robbery — twenty years, with all but ten years suspended, (2) robbery — merged into the armed robbery conviction, (3) use of a handgun — twenty years, with all but fifteen years ²²⁶ suspended, consecutive to the armed robbery conviction, (4) false imprisonment — merged into the first degree assault conviction, (5) use of a handgun — fifteen years, consecutive to the armed robbery conviction, and (6) first degree assault — fifteen years, with all but five years suspended, consecutive to the armed robbery conviction.

Both appellants ask the following questions in this appeal: I. Did the trial court err in admitting irrelevant and prejudicial evidence and in permitting improper argument?

II

Did the trial court err in refusing to permit proper impeachment of a key State witness?

III

Did the trial court err in refusing to permit timely cross-examination of a key State witness or in the alternative denying a motion for a mistrial? In addition, Pinkney also asks: IV. Did the trial court err in overruling [his] objection to the question, “Why do you call him ‘Monster?’ ” V. Did the court err in allowing inadmissible hearsay through Detective Jernigan with regard to clothes worn by [him]? Also, Sowell asks: VI.

Was the evidence sufficient to sustain the convictions? FACTS Delisa Holmes, the office manager of Recycling Incorporated, received a telephone call from Sowell, who was employed by Recycling, inquiring about the payroll. She told him that it would be paid in cash, and would be ready after twelve noon. Sowell picked up his pay at 12:30 p.m.

Three men entered the business approximately one hour later. One man approached another person, Brian Fowler, and brandished a gun. A second man pointed a gun at Holmes’s head and demanded cash. She gave him $14,600. ²²⁷ Pinkney was identified by William Grigsby, who worked at a business next door to Recycling Incorporated.

He testified that he saw three black men walking toward the recycling company and, in a few minutes, saw them leaving the establishment, and “jog straight across in front of me.” He identified Pinkney as one of the three men he had seen. Anthony Williams, who knew both Sowell and Pinkney, testified that approximately a week before the offenses, Sowell had told him about a plan to rob the recycling company. He stated that Sowell was very insistent and persistent about robbing the place. The day after the robbery, Williams talked to both Sowell and Pinkney.

Williams recounted that Sowell “said it was easy, just as he had planned.” Williams also testified that Sowell said, “Smoot, Lucky [Sewell], Monster [Pinkney] and another guy” were involved. Williams stated that Pinkney also confirmed that he, Smoot and “another guy” went in the company while Oliver “Lucky” Sewell was the driver. At the time Williams spoke to appellants, they both had a “lot” of money. I Both appellants first ask, “Did the trial court err in admitting irrelevant and prejudicial evidence and in permitting improper argument?” They argue that it was error for the trial court to permit Williams to testify that after the robbery, while attempting to flee, Smoot “ran over a police officer,” and was shot by a police officer.

They also claim that it was error to allow the State, in closing argument, to amplify the prejudice “by the unnecessary highlighting of the police assault.” Sowell’s attorney, during his opening statement, first mentioned that Smoot was shot while attempting to flee, that Smoot escaped, was treated at a hospital, and then arrested for his participation in the events. Subsequently, Williams was allowed to testify that Pinkney told him what had happened to Smoot when Williams saw Sowell and Pinkney a few hours after the robbery. ²²⁸ The admissibility of evidence, including rulings on its relevance, are left to the sound discretion of the trial court and, absent a showing of abuse of that discretion, will not be disturbed on appeal. White v. State, 324 Md. 626, 637 , 598 A.2d 187 (1991). Trial courts must decide whether the evidence is relevant and whether the probative value of the evidence outweighs any unfair prejudice.

Moore v. State, 84 Md.App. 165, 172 , 578 A.2d 304 , cert. denied, 321 Md. 385 , 582 A.2d 1256 (1990). In the case before us, the evidence established the sequence of events. It was admissible to show participation in the robbery by establishing knowledge of what happened to another participant. There was no evidence that either Sowell or Pinkney were involved in Smoot’s actions or the shooting.

No prejudice has been shown. During closing argument, the prosecutor argued, in accordance with the testimony of Williams, that counsel had been selective in his opening statement as to what he had told the jury. The prosecutor observed that counsel had not informed the jury that Smoot “had run over a police officer.” The prosecutor asserted that this was because both counsel were “trying to frame this case in a certain way that benefits their clients.” The permissible scope of closing argument is a matter left to the sound discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused. Hunt v. State, 321 Md. 387, 435 , 583 A.2d 218 (1990), cert. denied, 502 U.S. 835 , 112 S.Ct. 117 , 116 L.Ed.2d 86 (1991), citing Booth v. State, 306 Md. 172, 210-11 , 507 A.2d 1098 (1986), vacated in part, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987).

Moreover, when Sowell’s counsel objected to the prosecutor’s argument, no request for further relief was made. The issue has been waived. See Hairston v. State, 68 Md.App. 230 , 511 A.2d 73 , cert. denied, 307 Md. 597 , 516 A.2d 567 (1986). Pinkney’s counsel did not object.

He waived any claim of error as well. See Osburn v. State, 301 Md. 250 , 482 A.2d 905 (1984). ²²⁹ Even if the issue had been properly preserved, there was no error or abuse in allowing the argument. The purpose of eliciting evidence of Smoot’s confrontation with the police was not to establish the guilt of appellants, either directly or by association. The prosecutor was simply using the incident to show that lawyers, during closing arguments, selectively recall the facts to benefit their side of the case.

II Appellants next ask, “Did the trial court err in refusing to permit proper impeachment of a key State witness [Oliver “Lucky” Sewell]?” Prior to trial, the prosecutor informed the trial court of “Lucky” Sewell’s prior convictions, which were assault and battery and destruction of property. The prosecutor noted that those convictions arose from initial charges of burglary and robbery and that there had been a guilty plea. Pinkney’s counsel argued that he should be allowed to impeach “Lucky” with his prior bad acts, not just the convictions. Sowell adopted that argument.

The court deferred ruling. When the State called “Lucky” Sewell, both appellants noted for the record their request to impeach him with “Lucky’s” prior bad acts. The court said nothing. Neither appellant sought to impeach “Lucky” with any prior bad acts during cross-examination.

To preserve an objection to the exclusion of evidence, there must be a proffer of the substance and the relevance of the excluded testimony. There was no proffer of what the contents of any excluded testimony would have been. There is nothing to indicate what the prior bad acts were. The issue is not properly preserved.

See Bruce v. State, 328 Md. 594 , 616 A.2d 392 (1992). Ill Appellants also contend, “The trial court erred in refusing to permit timely cross-examination of a key State witness or in the alternative denying a motion for a mistrial.” ²³⁰ The State’s examination of Williams continued until almost 5:00 p.m. on the afternoon of Thursday, April 17, 1997. When it concluded, there was a bench conference. The court stated that it did not wish to truncate anyone’s examination, but that it had promised the jury that it would be out by 5:00 p.m.

Pinkney’s counsel objected to postponing the cross-examination of Williams, but Sowell’s counsel stated that they could recess after the cross-examination by Pinkney’s counsel. The court wanted either to have all the parties conclude the examination of the witness, or to recess. Pinkney’s counsel insisted that he wanted to cross-examine Williams before taking a recess, but said that he would be “as quick as possible.” The court responded that it did not want to rush anyone. When the court inquired of the jurors if they could stay, one juror responded that she had to attend an evening class.

The court then decided to adjourn the proceedings, and excused the jury over the weekend. Pinkney’s attorney moved for a mistrial, asserting: What’s happened is this, the jury has now gone home listening to the State’s version of this man’s testimony without that great engine designed to get at the truth or John Henry Wigmore cross-examination. I understand the woman going to school. I agree with you, there’s not much you can do about that.

I mean, that’s a choice you, the gatekeeper, has [sic] to make. But I think you have to make choices in order to ensure that Mr. Pinkney receives a fair trial. I think based upon what has happened,-we have a manifest necessity to declare a mistrial. Sowell joined in the argument, noting that the State’s examination had been “painfully slow.” The court heard arguments, and ruled that there was no manifest necessity for a mistrial, and that counsel would have the opportunity to cross-examine on Monday.

The court was correct. A trial'judge has broad discretion in the conduct of a trial, including the declaration of a mistrial. Burral v. State, 118 Md.App. 288 , 702 A.2d 781 ²³¹ (1997). The granting of a mistrial is within the court’s discretion, which will not be disturbed unless the defendant is so prejudiced that its denial is tantamount to an abuse of discretion.

Barrios v. State, 118 Md.App. 384 , 702 A.2d 961 (1997). Here, no prejudice was shown. The record reflects that, after the weekend break, both defense counsel cross-examined and re-cross-examined Williams as much as they wished. In fact, the cross-examination, arguably, was more firmly impressed in the jury’s mind during deliberation.

IV Appellant Pinkney contends, “The trial court erred in overruling [his] objection to the question, ‘Why do you call him Monster.’ ” Sewell was repeatedly asked by the State why Pinkney was referred to as “Monster.” Over repeated objections, the State elicited the answer, “Because he’s crazy. He’s a bad person.” The court ruled, “I am going to strike ‘bad person.’ ” It instructed the jury to ignore the conclusion. Pinkney, however, insists that the comment that he was crazy was extremely prejudicial, arguing that the court should have sustained his objections to the questions regarding why his nickname was “Monster” in the first place. He asserts that any response as to why he was called “Monster” was prejudicial because it made him look like a “bad person.” Assuming, arguendo, that the issue is properly preserved, we perceive no error.

A court has broad discretion in deciding what evidence is admissible. See Burral, supra. Sewell claimed that his actions, after he became aware of the fact that a robbery had just occurred, were motivated by his fear of Pinkney, based on Sewell’s comment that Pinkney was a lunatic. Sewell was asked why he called Pinkney “Monster.” Other persons called Pinkney by that name because they believed he was crazy.

Sewell was explaining his reasons for fearing Pinkney. ²³² Under the circumstances, we perceive neither error nor abuse of discretion. y Pinkney also contends, “The court erred in allowing inadmissible hearsay through Detective Jernigan with regard to clothes worn by Pinkney.” He asserts that the court erred in permitting Detective Jernigan to testify that Mr. Lucas, a maintenance worker at the apartment complex, had identified a shirt and coat that Lucas had claimed belonged to Pinkney. Pinkney acknowledges that Jernigan’s testimony was cumulative of Lucas’s testimony. It was also cumulative to other evidence concerning what Pinkney was wearing at the time of the robbery, including the shirt itself, which was recovered from Sewell’s car, and identified by Sewell as the shirt Pinkney was wearing. Jernigan