Tirado v. State

BISHOP, Judge. Eric Joseph Tirado (Tirado) was charged with first degree murder, robbery with a dangerous and deadly weapon, two handgun violations, and being an accessory after the fact to murder. The State filed a notice of intent to seek the death penalty. After a jury trial in the Circuit Court for Howard County, Tirado was convicted of all charges except accessory after the fact.

He was sentenced by a jury to life without parole for murder, twenty years for robbery, and two five year terms for the handgun violations; each sentence was consecutive to the others. Because a notice of appeal was not timely filed, our jurisdiction to decide this matter arises pursuant to the court’s granting Tirado post-conviction relief in the form of a belated appeal. Issues Tirado presents the following nine issues for our review: whether the court erred when it I. failed to grant defense counsel’s requested relief for the State’s discovery violation; II. limited Tirado’s impeachment of witness Devarie; III. admitted evidence of other crimes; IV. admitted Trooper Coppinger’s opinion testimony; ⁵⁴⁰ V. admitted identification testimony; VI. admitted the expert opinion of Special Agent Spaulding regarding the sequence of shots; VII. instructed the jury on felony murder; VIII. instructed the jury on armed robbery; and IX. whether the court’s cumulative errors require reversal? Facts The record in this case is extensive.

Tirado’s trial commenced on June 17, 1991, and concluded about a month later on July 18, 1991. (Beginning April 17, 1991, and ending on June 12, 1991, a total of seven days of pre-trial motions hearings were held; jury selection began on June 13, 1991.) Numerous witnesses testified at Tirado’s trial. On March 29, 1990, John Anderson was driving a tractor-trailer northbound on 1-95 at a speed of about seventy-two miles per hour. He and the driver of a car were “running parallel at approximately the same speed.” Anderson saw a State trooper pull his police vehicle in between the tractor-trailer and the car; he then saw the trooper drop back behind the car and activate his car’s emergency lights.

The trooper and the driver of the car continued at the same speed for “approximately five-eights of a mile.” He noticed that there were two occupants in the car. When the trooper turned on his spotlight, the light “reflected off the rear view mirror and [lit] the driver’s face up.” Subsequently, in November 1990, while watching television, Anderson saw the driver of the car being escorted in handcuffs by the police. Anderson recognized Tirado as being the driver of the car. Also on March 29th, Wilbur Farver was driving his truck northbound on 1-95 sometime between 3:54 and 3:56 a.m.

He noticed, alongside the highway, a State trooper’s vehicle with its lights on and a car stopped in front of it. Farver saw “a male get out of the front right side of the trooper’s car.” He noticed that the male “just slowly walked up to ⁵⁴¹ the car that was apparently stopped in front of the trooper.” The door of the police vehicle was left open. He then saw the man open the passenger door of the car, lean inside, and talk to the person seated inside. The occupant was leaning from the driver’s side to the passenger’s side.

He then observed the man slowly walk back to the police vehicle. Later that morning, at around 4:00 or 5:00 a.m., Officer Robert Loproto of the District of Columbia Metropolitan Police Department was travelling northbound on 1-95 when he observed Corporal Wolf seated in a State Police vehicle with his head “slightly down.” The vehicle’s interior lights, emergency lights, and headlights were on. Officer Loproto stopped, walked toward the passenger side of the vehicle, and saw “blood on the front seat and ... blood all over [Trooper Wolf’s] face.” At about 5:15 a.m., Officer Louis Martin of the Baltimore County Police Department responded to a call for a suspected stolen vehicle discovered behind a local restaurant. He saw what he believed to be blood inside the car and on the car’s exterior.

He found the “charred remains of what [he] believed to be a trooper’s warning book, on the ground, approximately ten feet in front of the car toward the back door of [the restaurant].” James Simms, a fingerprint expert with the Maryland State Police Department, testified that Tirado’s fingerprints matched three fingerprints recovered from the driver’s side of the stolen car. According to Simms, Tirado’s right ring fingerprint was “positively identical in friction ridge characteristics to the blood print taken from the armrest” of the car. Tirado’s fingerprints were also matched to three prints recovered from the clothing store bag found in the car’s back seat. The fingerprints of Tirado’s accomplice, Francisco Rodriguez, were found on papers that belonged to the car’s owner.

Sharon Dubey, a forensic serologist with the Maryland State Police, testified that, based on tests conducted on the blood stains found in the stolen car and in the police vehicle, ⁵⁴² Corporal Wolf was the sole source of the blood, and Tirado and Rodriguez were excluded as possible sources. James Kaplan, a former Maryland assistant medical examiner, and an expert in forensic pathology, performed the autopsy of Corporal Wolf. In his opinion, Corporal Wolf sustained gunshot wounds to the lips, right cheek, and back of the head. According to Kaplan, Corporal Wolf was first shot in the lips — which caused his head to droop — and was subsequently shot in the cheek.

F.B.I. Special Agent Robert Spaulding, an expert in blood stain pattern analysis, testified that the blood stain patterns in the police vehicle’s front and back seat areas were “consistent with the wounds that he suffered,” but he “would not necessarily feel comfortable associating them with either particular shot.” Professor Herbert Leon McDonald, also an expert in blood stain analysis, testified that “both shots were fired from outside of the door [of the trooper’s car].” He posited that the “back seat is uniformly spattered, and if a person were in the back seat, they would have intercepted the blood.” He opined that no one could have been in the back seat when the shot was fired that caused the blood spatter in the vehicle because there were “no streaks or smears anywhere on the front or the back seat.” Edgar Devarie (Devarie), a friend of Tirado’s, testified that, during the first week of April 1990, he went to Tirado’s family’s house in New York City to visit Tirado and Rodriguez. Tirado told Devarie that he shot a police officer. Tirado explained to Devarie that he and Rodriguez were travelling from Virginia through Maryland in a stolen car. Tirado said that he was the driver of the car, and that he was speeding.

Tirado told Devarie that he stole the car because he did not have enough money to get back to New York. According to Devarie, Tirado told him that a State trooper pulled over the stolen car, and after talking with Tirado, walked back to his vehicle with Tirado’s license and regis ⁵⁴³ tration. At that point, Tirado and Rodriguez discussed who would kill the officer. Tirado said, ‘Til do it.” Rodriguez handed Tirado a .357 magnum and Tirado “put it in his pants.” The trooper then told Tirado and Rodriguez to come to his vehicle, and Tirado got in the front passenger seat of the police vehicle and Rodriguez got in the back.

The trooper then told Rodriguez to close the door, and Rodriguez got out of the vehicle to go close the door of the stolen car. The trooper said, “Hey what are you doing? Where are you going?” Rodriguez said he was going to close the door of the car, and the trooper said, “No, not that door, this door.” Then Rodriguez got in the back seat of the car, and the trooper started to write a ticket. Tirado then pulled out the gun and shot Corporal Wolf.

Tirado told Devarie that the trooper “straightened up, opened his eyes.” Because “he didn’t know where the first bullet went,” Tirado shot the trooper a second time in the head. Tirado went on to tell Devarie that, after he shot the trooper, he took the ticket book, his driver’s license, and other papers. He then “cleaned up a bit and he ran.” The two men got back in the stolen car and drove to the next exit and abandoned the vehicle. As they ran away, they burned Corporal Wolf’s ticket book because it had Tirado’s name on it.

Finally, Rosalinda Santos’s prior recorded statements were admitted into evidence. Before Tirado and Rodriguez left for New York, Santos heard Rodriguez exclaim that “[h]e was so mad that if somebody got in his way or stopped — or stopped him he would kill the person.” She overheard Rodriguez say, “I have nothing to lose, I’m going to jail.” Santos added that he said he “hates police.” Additional facts are provided in the discussion, infra, where necessary. I. Tirado first contends that the trial court erred when it refused to declare a mistrial, or in the alternative, strike ⁵⁴⁴ Devarie’s testimony, or grant a continuance. Specifically, he argues that the State violated discovery rules when it failed to disclose: 1) Devarie’s correct address; 2) the fact that he relocated from New York to Maryland; and, 3) promises and inducements made by the State to Devarie to secure his testimony at trial.

Tirado maintains that the State was required to disclose Devarie’s most recent address — 1035 Woodycrest Avenue. Even though the State notified defense counsel of Devarie’s 40 Mont Clair Road address, Tirado urges that the State knew Devarie “never lived at the address provided during the entire investigation.” In his reply brief, Tirado clarifies that, although he does not contest the court’s refusal to disclose Devarie’s Maryland address, the State was nonetheless obligated to notify him that Devarie relocated. He suggests that the State’s non-compliance with respect to its relocating Devarie without informing defense counsel, as well as promises and inducements made by the State to secure Devarie’s testimony, left defense counsel surprised by the significance of Devarie’s testimony. Tirado further contends that the State’s alleged discovery violations prejudiced him at trial.

He complains that since he did not have the correct address, and consequently, could not locate Devarie before trial, he was unable to interview Devarie or prepare for his cross-examination. He insists that this was prejudicial because Devarie was the only witness to testify that Tirado was the gunman. We disagree. Non-Compliance with Discovery Rule 4-263(b) provides in pertinent part: Disclosure Upon Request. — Upon request of the defendant, the State’s Attorney shall: (1) Witnesses. — Disclose to the defendant the name and address of each person then known whom the State intends to call as a witness at the hearing or trial to prove its case in chief or to rebut alibi testimony____ ⁵⁴⁵ (Emphasis added.) Generally, “[w]hen requested, the State’s Attorney must give the defendant the names and addresses of each person he intends to call as a witness to prove his case in chief.” Coleman v. State, 321 Md. 586, 601 , 583 A.2d 1044 (1991). “ ‘The decision to compel disclosure ... is within the sound discretion of the trial court.’ ” Id. at 603 , 583 A.2d 1044 (quoting Brooks v. State, 320 Md. 516, 525 , 578 A.2d 783 (1990)).

The Court of Appeals held in Warrick v. State, 302 Md. 162, 173 , 486 A.2d 189 (1985), “that the question of whether any sanction is to be imposed for a discovery violation, and if so what sanction, is in the first instance committed to the discretion of the trial judge, and that the exercise of that discretion includes evaluating whether the violation prejudiced the defendant.” Evans v. State, 304 Md. 487, 500 , 499 A.2d 1261 (1985), cert, denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 722 (1986). In the case sub judice, after hearing testimony and arguments regarding defense counsel’s allegation that the State failed to comply with discovery, the court concluded: I don’t find from the evidence that the State intended to conceal the whereabouts of this witness. In fact, the witness’ [sic] own testimony was that he used the address of Montclare [sic] Road, that his dealings with the police were generally by using a phone number when he dealt with the police. I don’t find that the State has intentionally tried to deprive or preclude access with this particular witness.

To the extent the request is that ... I strike his testimony and/or grant a mistrial, I’ll deny those requests. He later denied defense counsel’s request that the court recess at 3:00 p.m. on July 10, 1991, until 9:30 a.m. on July 11, 1991, to allow him time to talk with co-counsel who went to New York the night before to locate witnesses to impeach Devarie’s testimony. The question of whether the State violated its discovery obligations in this case is particularly troublesome.

Even an unintentional violation of Rule 4-263 may require a mistrial if there is irreparable prejudice to the defendant. ⁵⁴⁶ See Evans, 304 Md. at 501 , 499 A.2d 1261 . We do, however, determine that the court did not abuse its discretion when it refused to grant a mistrial, or in the alternative, strike Devarie’s testimony or grant a continuance. See Rule 4-263; Evans, 304 Md. at 501 , 499 A.2d 1261 . On December 21, 1990, defense counsel filed a specific request for the names and addresses of individuals the State intended to call as witnesses.

On February 22, 1991, the State informed defense counsel that Devarie would be called as a witness, and provided an address: “40 Mont Clair Road, Yonkers, NY.” Although the State is under a continuing duty to disclose material information to the defendant once it has responded to requests for discovery, at no time did the State supplement that address with any other address or information with respect to Devarie’s whereabouts. See Rule 4-263(h). Devarie’s name was among at least 280 other names of individuals the State intended to call as witnesses against Tirado — undoubtedly, the defense’s investigative resources were put to the test. At oral argument, defense counsel conceded that, although the address the State disclosed was not “inaccurate,” it was nonetheless “inadequate.” Indeed, there was evidence that Devarie maintained contact with the 40 Mont Clair address.

Devarie testified that he lived at “1035 Woodycrest” (in New York City) “on and off” for three years, and that he had not lived at 40 Mont Clair for a “year and a half.” When pressed by defense counsel, he clarified that, before June 1991, he lived at 1035 Woodycrest. Devarie considered 1035 Woodycrest his current residence, but would stay at 40 Mont Clair from “time to time.” He testified that since “family” resided at 40 Mont Clair, he would “always go there,” and that his family would relay messages to him from that address. Devarie used a post office box as his mailing address. Therefore, even though the State failed to disclose the 1035 Woodycrest address, assuming it had the address, Devarie’s most accurate mailing address was a post office box, not 1035 Woodycrest. ⁵⁴⁷ Regardless, we hold that the address the State gave defense counsel was sufficient.

Since Devarie did not sever ties with the 40 Mont Clair residence, he still could have been contacted at that address. Moreover, there is nothing in the record to indicate that the State actually knew of any address other than 40 Mont Clair. Devarie testified that he did not give the State his 1035 Woodycrest address. We disagree, therefore, with Tirado’s assertion that the State knew during discovery that Devarie “never lived at the address provided during the entire investigation.” We recognize that, because the State spoke with Devarie by telephone during its investigation, it could have traced the calls to ensure that Devarie gave it his correct address.

Devarie also testified that the police did visit him at that address. We conclude, however, that the State’s disclosure was adequate — it was the only address Devarie gave the State, and he maintained contact with the residents at that location. Further, State troopers moved Devarie from the Woodycrest home in New York to Maryland in June 1991 contemporaneously with the commencement of trial. Contact with Devarie was generally made at locations other than his current residence.

In the beginning of the summer of 1990, a year before Tirado’s trial, Devarie met with Sergeant Coppinger at a cousin’s home. The next meeting between Devarie and Sergeant Coppinger occurred on a street in New York. A couple days later, Devarie spoke with Sergeant Coppinger over the telephone. At the end of the summer, Devarie was transported to Maryland to meet with the police and assistant state’s attorneys.

He subsequently met with the assistant state’s attorneys “about ten times” in Maryland before trial, and again met with them after they relocated him to Maryland. Devarie and Sergeant Coppinger both testified that the State made arrangements for the relocation three months before trial, but his actual relocation did not occur until June 1991 — at the start of the trial. The summons the State mailed to secure his attendance at trial was mailed to the 40 Mont ⁵⁴⁸ Clair address, and as discussed, supra, the State disclosed that address long before he relocated. To the extent his testimony was the result of an inducement, which the State conceded during oral argument, this does not support Tirado’s contention that Devarie was otherwise unavailable to the defense — the State did not attempt to hide this witness.

Our conclusion that the State complied with discovery is further supported by defense counsel’s lack of diligence visa-vis its efforts to locate Devarie. Defense counsel proffered that the last time they attempted to locate Devarie was on June 14 and 21, 1991 — after the jury was selected and then later when trial commenced. Defense counsel never did disclose, in the record, when they first tried to locate Devarie. The only dates that appear in the record on which the defense attempted to locate Devarie were the 14th and 21st of June 1991.

They left messages at his 40 Mont Clair address, but Devarie testified that he never got them. The State should have disclosed Devarie’s new address. Yet, the State proffered that “at least on one occasion [defense counsel] wanted a more current address” of another witness, but that they did not request the same for Devarie. Defense counsel did not issue Devarie a summons, as they did other witnesses, to secure his attendance at trial.

Defense counsel may have been surprised by Devarie’s testimony, but we are not persuaded that they made a diligent effort to locate him before the trial. This point is further buttressed by the fact that Tirado and Devarie were friends. To the extent the State could have better assisted the defense in locating Devarie, the defendant was “in as good a position as the State, or for that matter a better one” to reveal the existence of a more recent address. See Middleton v. State, 49 Md.App. 286, 290 , 431 A.2d 734 , cert, denied, 291 Md. 779 (1981).

II

Tirado next complains that the court improperly restricted his impeachment of Devarie. He argues that the court erred when it 1) refused the out-of-court statement of ⁵⁴⁹ a third party (Napoleone) — offered in the form of a question posed by defense counsel — that contradicted Devarie’s testimony; and, 2) denied counsel’s request for a one or two week continuance to allow defense counsel time to secure Napoleone’s attendance at trial. We disagree. The relevant portion of defense counsel’s cross-examination of Devarie is as follows: [Defense counsel]: Did you ever read any newspaper articles about this case? [Devarie]: Yes sir. [Defense counsel]: Did you ever see any wanted posters? [Devarie]: I didn’t read it, they just showed me a clipping but I didn’t look at it. [Defense counsel]: Who showed you a clipping? [Devarie]: [Napoleone], from the pharmacy in Hunt’s Point. [Defense counsel]: Did you read the clipping? [Devarie]: No sir. [Defense counsel]: You didn’t read any facts about the case? [Devarie]: No. * # * * * * [Defense counsel]: Well at that point when you spoke to [Napoleone], you didn’t believe that [Tirado] had done this, did you? [Devarie]: Nope. [Defense counsel]: So wouldn’t you want to kind of read it to verify your thoughts or lack of thoughts or questions in your mind? [Devarie]: Nope, because the second he told me