Thompson v. State

EYLER, JAMES R., J. Warren Anthony Thompson, appellant, was convicted by a jury in the Circuit Court for Baltimore City of first-degree assault; second-degree assault; reckless endangerment; use of a handgun in the commission of a felony or crime of violence; wearing, carrying, or transporting a handgun; and possession of a regulated firearm after having been convicted of a disqualifying crime. 1 The jury acquitted appellant of attempted first-degree murder and attempted second-degree murder. After denying appellant’s motion for a new trial, the court sentenced appellant to twenty-five years’ imprisonment for assault in the first-degree, the second-degree assault and reckless endangerment counts merging; fifteen years’ imprisonment for using a handgun in the commission of a felony or crime of violence, the wearing, carrying, or transporting a handgun count merging; and a concurrent five-year sentence for possession of a regulated firearm after having been convicted of a crime. On appeal, appellant contends that the court erred 1) in giving the jury a flight instruction; 2) by prohibiting defense counsel from eliciting that appellant was previously acquitted of assaulting two of the State’s witnesses; and 3) in denying appellant’s motion to suppress the out-of-court photographic identification by a witness. Perceiving no error, we shall affirm.

Factual Background and Procedural History On the evening of July 17, 2002, Noah Gottesman, William Beaver, and Bradley Kelly were walking to their hotel near the Inner Harbor when they were approached by two men on a bicycle. One of the men on the bicycle, later identified as ⁶⁵⁷ appellant, said to the group, “I’ll make this easy. Put your wallets on the ground.” Not realizing that appellant had a gun, the three men kept walking. As they passed appellant, Mr. Kelly noticed that appellant was pulling a gun out of his pocket or waistband.

At that point, Mr. Kelly yelled to Mr. Beaver and Mr. Gottesman to run. As they ran, they heard between five and eight shots fired in their direction, and Mr. Gottesman screamed that he had been shot. 2 As they reached the end of the block, a car stopped and they were told to get in. The two men inside the car drove them to the emergency room. At the hospital, the three men were met by a police officer, to whom they gave a description of the shooter.

Subsequently, a description was broadcast over the police radio that the shooter was a black male on a bicycle, approximately 25 years old, with corn rows, a baggy white t-shirt, and jeans or jean shorts. Detective Frank Mundy of the Baltimore City Police Department responded to the scene of the shooting. While at the scene, Detective Mundy saw appellant, who matched the description of the shooter and was riding a bicycle. Detective Mundy started to run towards appellant, calling out for him to stop.

Appellant saw Detective Mundy and started pedaling away. Although Detective Mundy lost sight of appellant, appellant was apprehended within five minutes by other police officers and taken to the police station. Later that night, Mr. Kelly, Mr. Beaver, and Mr. Gottesman went to the police station to give statements and to view a photographic array. Mr. Kelly and Mr. Beaver both identified appellant as the shooter from the photo array.

Mr. Gottesman was not able to identify appellant from the photo array. I. The ñrst trial Appellant was originally charged in three separate indictments with, inter alia, attempted murder, assault, and use of a ⁶⁵⁸ handgun against Mr. Kelly, Mr. Beaver, and Mr. Gottesman. Appellant was also charged with possession of a controlled dangerous substance. Following his arrest, appellant, in a tape-recorded statement, explained to police the reason for his presence at the scene as follows. [APPELLANT]: I was riding my bike I was coming from my house ... and ...

I observed ... police officer’s pulling [a] couple of people over I thought it was a[n] accident, actually I thought it was a car accident and farther up in the next block, it was some more police officers um and I just rode though [sic]. On my way back police officer pulled me over and um I ride because I was dirty. ❖ X * DETECTIVE: When you say you ran because you was dirty, what was you carrying? [APPELLANT]: Um, crack cocaine, probably cocaine. (Emphasis added). The police had in fact recovered 86 vials of cocaine from appellant upon his arrest.

Before trial, however, the circuit court suppressed evidence of the drugs, apparently because of a break in the chain of custody. Thus, the State did not seek to prosecute appellant on the possession charge. Appellant’s taped confession was allowed into evidence. However, at appellant’s request, the court redacted the portions of the statement relating to the drugs, because of their prejudicial nature.

Prior to trial, on March 10, 2003, a motions hearing was held. At the hearing, appellant challenged the admissibility of Mr. Kelly’s pre-trial identification of appellant. Specifically, appellant argued that the array was “unnecessarily suggestive,” as it contained only one photograph — appellant’s—where the individual was wearing a “white t-shirt.” In support of this motion, appellant proffered the testimony of Detective Michael Debord of the Baltimore City Police Department. Detective Debord testified that, at 11:46 p.m. on July 17, 2002, Mr. Kelly gave a description of the shooter “as being a black male, under 25, 5'10 to 5'9,160,165 pounds, white shirt, baggy jeans and dreadlocks or corn rows.” At 12:09 a.m.- on July 18, ⁶⁵⁹ 2002, Mr. Kelly, as a witness to the shooting, was shown a photographic array containing the photographs of six black males.

The instructions on the back of the array, given to Mr. Kelly before the photo array was shown, provided as follows: This group of photographs may or may not contain the picture of the person who committed the crime now being investigated. Keep in mind that hairstyles, beards and mustaches may easily be changed. Also, photographs may not always depict the true complexion of a person. Complexion may be lighter or darker than shown in the photo.

When you’ve looked at all the photos tell me whether or not you see the person who committed the crime. Do not tell other witnesses you have or have not identified anybody. Appellant’s counsel 3 asked Detective Debord about the clothing worn by the subjects in the photo array, and the following occurred. [APPELLANT’S COUNSEL]: Okay. And out of those six photographs could you tell the court who is the — which gentleman [sic] are in white T-shirts?

You can do it by numbers. DETECTIVE DEBORD: Number two has a white T-shirt. Number four has a white T-shirt. Number five has a white tank top T-shirt. [APPELLANT’S COUNSEL]: Okay.

But as far as the description of Mr. Kelly goes, did Mr. Kelly describe a tank T-shirt? DETECTIVE DEBORD: No. [APPELLANT’S COUNSEL]: He described a white T-shirt, is that correct? DETECTIVE DEBORD: Yes. Yes, ma’am. [APPELLANT’S COUNSEL]: And as far as the only individual who is wearing a white T-shirt without a jacket over it it’s number two, is that correct?

DETECTIVE DEBORD: Yes, ma’am. ⁶⁶⁰ [APPELLANT’S COUNSEL]: Okay. Were you present when Mr. Kelly made a statement on the — wrote a statement on the back of that photo array? DETECTIVE DEBORD: Yes. [APPELLANT’S COUNSEL]: Do you have a copy of that? DETECTIVE DEBORD: Yes, ma’am. [APPELLANT’S COUNSEL]: And you were there when Mr. Kelly wrote down the statement, is that correct?

DETECTIVE DEBORD: Yes, I was. [APPELLANT’S COUNSEL]: Could you read that statement into the record? DETECTIVE DEBORD: “I believe it’s number two because I recognize his facial features and the white T-shirt.” [APPELLANT’S COUNSEL]: And the white T-shirt, is that correct? DETECTIVE DEBORD: Yes, ma’am. Yes, ma’am. [APPELLANT’S COUNSEL]: Okay.

Had you told Mr. Kelly when this picture of [appellant] was taken? DETECTIVE DEBORD: No. [APPELLANT’S COUNSEL]: Did you tell him that it was taken that day or sometime previously? DETECTIVE DEBORD: No. [APPELLANT’S COUNSEL]: So Mr. Kelly basically described this gentleman on behalf of his — by his facial features and his white T-shirt, is that correct? DETECTIVE DEBORD: That’s what he wrote down, yes. [APPELLANT’S COUNSEL]: Were there any other people in the room when Mr. Kelly made this identification?

DETECTIVE DEBORD: Just Detective Mundy and I. [APPELLANT’S COUNSEL]: Did Mr. Kelly have reason to believe that any suspect had been arrested in this case? DETECTIVE DEBORD: No. On cross-examination, Detective Debord testified to the following. THE STATE: Detective, who assembled this photo array? ⁶⁶¹ DETECTIVE DEBORD: I did. THE STATE: Okay.

Any why — can you tell us part of your reasoning that goes into assembling a photo array? DETECTIVE DEBORD: Well, you get photographs to try to find other photographs that meet the same general description to try to get close to age. I mean, you don’t want somebody with a real big face and a real- — you don’t want to have somebody with a real large face and then put him in with arrays with people — try to — try to get their description as close as you can, but not too close to confuse the witnesses. THE STATE: And you did that based upon their facial features, correct?

DETECTIVE DEBORD: Yes. THE STATE: You do it based on their hairstyles, correct? DETECTIVE DEBORD: Yes. THE STATE: Do you do it based on their clothing description?

DETECTIVE DEBORD: No, 1 try not to, no. The court denied appellant’s motion to suppress the photo array identification by Mr. Kelly, stating: Motion is denied. The burden of proof in these sorts of matters is on the Defense to make a prima facie case that the pretrial procedure was — and here’s where I part from you, [appellant’s counsel] — was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Citing Jones v. State, 310 Md. 569 , 530 A.2d 743 .

That’s a 1986—1987 case. And Lowd [sic] versus State 63 Maryland App 702, a 1985 case which has that — both of which have that holding. Now, in this case we have a photo array. It has six photos in it.

Two of the photos have people in white T-shirts and one photo [h]as a person in a white T-shirt with a blue pullover. So, you can speculate, you can argue that there really are three people here, three men in white T-shirts. ⁶⁶² On the other hand, the witness clearly said that he recognized the [appellant], photo number two from facial features. * * 4= The witness clearly said that he recognized the [appellant] and that is photo number two. Not only from the white T-shirt, but from some facial features. But the issue here is whether the procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.

I don’t think it was because I think — as I say, [appellant] in picture number two is identified by facial features plus the white T-shirt with special emphasis on the white T-shirt and I don’t think that’s [im]permissibly suggestive. Motion is denied. Ultimately, the jury acquitted appellant of the counts of first-degree assault and second-degree assault relating to Mr. Beaver and Mr. Kelly, and they were unable to reach a verdict as to any of the remaining counts.

II

The second trial The State retried appellant only on the indictment relating to Noah Gottesman, which is the subject of this appeal. Prior to the second trial, appellant’s counsel moved to have the court allow her to inform the jury that appellant had previously been acquitted of assaulting Mr. Kelly and Mr. Beaver — both of whom would testify at trial — and that the remaining charges against appellant relating to the two witnesses had been nol prossed. Appellant’s counsel argued: I [should] at least be allowed to address the jury and tell them that [appellant] was, in fact, found not guilty in a previous trial of first — and second-degree assault of these two other gentlemen who are going to testify and that the State has dismissed the rest of the charges against [appellant] relating to those two individuals. I think I have the right to do that. ⁶⁶³ The court denied the motion on the ground that this information was irrelevant.

During trial, at a bench conference at the end of recross-examination of Mr. Kelly, appellant’s counsel again requested that the court allow her to elicit information regarding the prior acquittals. The following occurred. [APPELLANT’S COUNSEL]: Your Honor, I know you made a previous ruling that I could not ask about the previous trial— THE COURT: You asked about the transcript. That’s fine. [APPELLANT’S COUNSEL]: But I would like to cross-examine this witness about what happened in that previous trial. I think it goes to motive and bias (inaudible).

THE COURT: What about it? [APPELLANT’S COUNSEL]: It also goes to— THE COURT: What about what happened? [APPELLANT’S COUNSEL]: That, basically, my client was found not guilty of assaulting this individual. THE COURT: No, we’re not doing that. No. Denied. [APPELLANT’S COUNSEL]: Especially because the [State] opened the door by mentioning the previous [testimony]— THE COURT: You brought it up. I allowed you to ask him about the transcript.

You ask[ed] him what he said, but you can’t ask him about the verdict, no, no, no. Okay? Don’t do it. [APPELLANT’S COUNSEL]: I object, Your Honor. I’m just noting it for the record.

THE COURT: I know. So noted. During direct examination of Mr. Beaver, the issue of the previous acquittals was again raised: [APPELLANT’S COUNSEL]: Your Honor, I’m protesting that these two witnesses who are testifying, I won’t be able to adequately cross-examine them as to motive, bias, and also other crimes evidence, and the fact that— THE COURT: Oh, so that’s your issue. ⁶⁶⁴ THE STATE: Oh, okay. THE COURT: Because we’re not discussing the prior trial. [APPELLANT’S COUNSEL]: Unless he opens the door.

THE COURT: Well, even if he discusses, he mentions there was a proceeding, that’s not the same as discussing the verdict. THE STATE: Or if counsel cross-examines him on what he specifically said, that’s not opening the door. THE COURT: Right, but you can cross-examine him on what he said the last time, or even any proceeding that he discussed this matter. [APPELLANT’S COUNSEL]: Right. Your Honor, the basis was the verdict, so the jury knows that— THE COURT: I know.

We’re not doing that. THE STATE: I just wanted to make sure— THE COURT: Ask the witness to come up here. Tell him to come up here. Come here.

Come here. MR. BEAVER: Oh, okay. MR.

BEAVER: Yes? THE COURT: During the course of your testimony, you may not discuss the outcome of any prior proceeding. Do you understand that? MR.

BEAVER: Okay. THE COURT: You’ve testified in this matter before, right? * * * THE COURT: You may be asked about what you may have said on other occasions in this case. MR. BEAVER: (Nods head affirmatively).

THE COURT: I don’t want you to discuss anything other than that it was in another proceeding. I don’t want you to discuss what happened in those cases in terms of the outcomes. ⁶⁶⁵ THE COURT: And you can be asked about what you said, all right, at another proceeding, all right, but don’t refer to it as another “trial,” do not discuss the fact that it was a trial or what the outcome was. Do you understand? MR.

BEAVER: I believe so. Yeah. * * * [APPELLANT’S COUNSEL]: I object for the reeord, Your Honor. THE COURT: Fine. So noted....

In the second trial, the State did not seek to introduce evidence of the cocaine. Thus, appellant’s tape-recorded statement to police that was played for the jury, as well as a transcript of the statement that was prepared as an aid for the jury, were altered, as in the first trial, to omit appellant’s assertion as to why he ran from the police. The altered statement was as follows. I was riding my bike I was coming from my house ... and ...

I observed .. . police officer’s pulling couple of people over I thought it was a[n] accident, actually I thought it was a car accident and farther up in the next block, it was some more police officers um and I just rode though [sic]. On my way back police officer pulled me over and um I ran. (Emphasis added). To the extent pertinent, Officer Mundy testified as follows.

THE STATE: Where were you when you first saw the [appellant]? OFFICER MUNDY: I was in the 1100 block of East Pratt Street. THE STATE: Where was he? OFFICER MUNDY: He was on a bicycle heading — I guess it would be westbound on the 1100 block of East Pratt Street.

THE STATE: Okay. When you saw the [appellant] on the bicycle, what did you do? ⁶⁶⁶ OFFICER MUNDY: We had a basic description of what the suspect was supposed to have looked like. The [appellant] matched that description. You know, I looked at my partner because we both thought, you know— THE STATE: What did you personally do?

OFFICER MUNDY: I attempted to approach the [appellant]. THE STATE: Okay. Did you walk toward him? OFFICER MUNDY: Well, I had to run up to him because he was pedaling a bicycle away.

THE STATE: Okay. Did you say, “Stop, police”? OFFICER MUNDY: Well, what happened was, when I started running up towards him, he turned around and saw me, and he started to pedal away faster, and I did yell at that point to stop. THE STATE: Okay.

Before he saw you — I mean, before he started to pedal away, when you first approached him, did you have your gun drawn? OFFICER MUNDY: No. THE STATE: Did you say, “Stop, police”? OFFICER MUNDY: No, I don’t think I did. THE STATE: Okay.

As he pedaled away, what did you do? OFFICER MUNDY: What, after he saw me? THE STATE: Yes. OFFICER MUNDY: After he saw me and he pedaled away, I called it out to try to get him stopped.

I did tell him at that I was the police, to stop. THE STATE: Okay. When he was pedaling away, was he going slowly or fast? OFFICER MUNDY: He was going fast.

THE STATE: And he was on the bicycle at this time? OFFICER MUNDY: Yes. During the bench conference that preceded jury instructions, the State requested a flight instruction based on appel ⁶⁶⁷ lant’s recorded statement and Officer Mundy’s testimony, and the following colloquy occurred. THE STATE: The State would also ask for [Maryland Pattern Jury Instruction — Criminal] 3:24, which is flight of the defendant. [APPELLANT’S COUNSEL]: I would like to be heard on that, Your Honor.

THE COURT: Sure. [APPELLANT’S COUNSEL]: Your Honor, the previous motion suppressed drugs that allegedly were found on [appellant’s] person — [appellant’s] person — and in his statement which was redacted from the jury, he says basically, “I ran because I was dirty.” That was redacted. Now, if you let this flight instruction in front of the jury, they’re going to think that he ran because he committed the shooting, not perhaps the real reason: he ran because he was dirty. That was kept from the jury and I think this is misleading, given the facts that the jury actually did hear. THE COURT: Well, the instruction says, “Flight under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence,” or at least innocence of this crime. [APPELLANT’S COUNSEL]: I can’t think, even though you are reading that in a light that’s helpful to the defense, if any defense attorney has ever asked for a flight instruction, Your Honor.

I definitely believe— THE COURT: No, why would the defense ask for a flight instruction. No, I know, that’s true. [APPELLANT’S COUNSEL]: No, I think the State wants this because it’s going to say he ran because he’s the shooter and that’s not— THE COURT: Well, that is a permissible inference that they could draw from the evidence, but there’s other inferences and that’s explained right in there. I mean, frankly, it’s a judgment call. I mean, you could have let go into evidence this other issue as an explanation for why he ran ⁶⁶⁸ away.

I mean, you balance the equities and you make a decision. [APPELLANT’S COUNSEL]: I just said if this jury instruction is taken in light of the facts this jury actually heard, it’s misleading. THE COURT: I don’t think so. Overruled. Ultimately, the jury was instructed as follows.

A person’s flight or concealment immediately after the commission of a crime or after being accused of committing a crime is not enough to establish guilt, but it is a fact that may be considered by you as evidence of guilt. Flight under these circumstances may be motivated by a variety of factors, some of which may be fully consistent with innocence. You must first decide whether there’s evidence of flight. If you decide there’s evidence of flight, you must then decide whether this flight shows a consciousness of guilt.

(Emphasis added). At the conclusion of jury instructions, appellant noted an objection to the flight instruction. Parties’ Contentions Appellant contends that the trial court erred in giving the jury a flight instruction. In support of this contention, appellant asserts that he had a reason for fleeing from police that had nothing to do with the shootings, specifically, that he was in possession of a substantial amount of cocaine.

Therefore, appellant’s flight was not based on a consciousness of guilt of the shootings, but on a consciousness of guilt of illegal possession of cocaine. Because evidence of appellant’s cocaine possession was suppressed, appellant contends that the jury was likely to infer that his flight was evidence of guilt of the shooting. Appellant’s second contention is that the trial court erred by prohibiting appellant’s counsel from eliciting that appellant was previously acquitted of assaulting Mr. Kelly and Mr. Beaver and that the State had nol prossed the remaining charges. In support of this contention, appellant argues that, ⁶⁶⁹ by refusing to allow him to cross-examine the two State witnesses, the court violated his constitutional right to confront the witnesses against him regarding potential bias, interests, or motives.

Appellant’s final contention is that the court erred in