Tyner v. State

HARRELL, J. On an early Fall evening in 2006, seventeen bullets struck' Darrell Artist (“Artist”), a young man congregating at the time with others near 7180 McClean Boulevard, Baltimore City, Maryland. He died from the wounds. Two brothers, Donte Tyner (“Donte”) and Tavon Tyner (“Tavon”), 1 were found by a jury in the Circuit Court for Baltimore City criminally responsible for his murder. Their joint trial produced the evidentiary questions before us in this case.

I. At trial, a number of facts were elicited by the State from multiple witnesses. We recount only those facts necessary to supply context for the resolution of the questions we consider here. On 7 September 2006, an outdoor gathering of people (including Artist, Donte, and Tavon) in a parking lot adjacent to apartments in the Dutch Village area of Baltimore were listening to rap music on a “boom box” and singing along. At some point, Donte and Artist threw punches at each other.

Moments later, shots were fired. Seventeen bullets struck Artist, leaving him mortally wounded. Baltimore City police recovered two different types of ammunition (9 millimeter and .40 caliber) from his body and at the crime scene, leading the police to believe that there were two gunmen. After the shooting, Donte, Tavon, and others got into a van and a car, and fled—Donte in the car and Tavon in the van.

The van was driven by Latosca McCullough (“McCullough”). The two vehicles were driven to the house of Troy Brown, one of the individuals in the van. A few days later, the police caught up with McCullough while she was at Mr. Brown’s house. They asked her about her van, which was parked in Brown’s driveway.

She ac ⁶¹³ knowledged that she owned the vehicle; whereupon, she was arrested and taken to the Homicide Unit for questioning. Once there, she told Detective Irvin Bradley that she was not present at the shooting on the 7th and knew nothing about it. Although McCullough was charged initially with murder, she struck a deal eventually with the State’s Attorney’s Office for Baltimore City, after she obtained counsel. In exchange for her truthful testimony, the State agreed to drop the murder charge.

Deal in hand, McCullough shared with Detective Bradley a different story of Artist’s shooting and the Tyners’ alleged involvement than originally told. She claimed that, while others were listening to music and singing, she remained in her van. After Donte and Artist began fighting, she heard various “pops” and a “boom.” Looking toward the direction of those sounds, she saw Tavon standing next to her van with “sparks coming from his hand.” Tavon then got into the van and ordered her to “pull off,” remarking “that [African-American] is gone from around here.” Arriving at Brown’s house, Donte and Tavon instructed McCullough to feign ignorance, when confronted by the police, of what transpired that day on McClean Boulevard. Specifically, they allegedly told McCullough to say she was not at the crime scene and that she saw the brothers only earlier that day.

McCullough complied with the directions (until she made her deal with the State) because she proclaimed that she feared for her life. Ultimately, Donte and Tavon were arrested in connection with Artist’s death and charged with first-degree murder, conspiracy to commit murder, use of a handgun in a crime of violence, and lesser related offenses. A nine-day jury trial in the Circuit Court for Baltimore City resulted in their conviction on all charges. Significant at trial, in addition to McCullough’s testimony, was the testimony of another eyewitness, Miha Brown, who was sixteen at the time of the shooting and observed the incident from her second-story bedroom window.

After the shooting, police showed Brown three, separate ar ⁶¹⁴ rays of photographs, each containing six persons with similar likenesses. Police informed Brown that the photo arrays may not contain any of the individuals suspected in the crime. Nonetheless, Brown selected (and noted in her handwriting on the photographs of them) that McCullough was the driver of the van, Donte the person who “sho[t] and kill[ed]” Artist, and Tavon “the person who did the murder.” On 11 August 2008, the trial judge denied Petitioners’ motion for a new trial and imposed on each defendant a life sentence for first-degree murder, concurrent life sentence for conspiracy to commit murder, and twenty-year sentence for use of a handgun in a crime of violence. Petitioners appealed to the Court of Special Appeals, arguing, among other things, that Detective Bradley had been allowed to opine, improperly and prejudicially, regarding the truthfulness of McCullough’s trial testimony.

In an unreported opinion, the intermediate appellate court affirmed, finding that: [I]n context, [Bradley’s testimony] was offered not as [his] opinion that McCullough was truthful, but to explain that, after initially denying that she was at the scene of the murder and being charged with the crime, she gave the statement that included admission that she saw Tavon firing a gun. We issued a writ of certiorari on the Tyners’ petition, Tyner v. State, 415 Md. 41 , 997 A.2d 791 (2010), to consider the following questions: (1) Did the trial court err in refusing to strike the testimony of a detective ... [regarding another witness who] initially stated she was not present at the crime scene but subsequently provided a statement inculpating petitioners? (2) Where two defendants with identical interests are jointly tried and one objects to evidence equally damaging to both, should the objection be deemed to preserve the issue as to both? For reasons we shall explain, we hold that the trial court did not err by refusing to strike Detective Bradley’s testimony. ⁶¹⁵ As a consequence of this determination, we need not answer the second question.

II

The parties’ briefs and arguments focus on whether the trial judge abused his discretion in refusing to strike specific portions of Detective Bradley’s testimony. The proper question is actually whether the trial judge erred, as a matter of law, by allowing testimony “relating to the credibility of another witness” to be considered by the jury. Bohnert v. State, 312 Md. 266, 278 , 539 A.2d 657, 663 (1988).

III

Petitioners characterize Detective Bradley’s pertinent testimony (the last witness called by the State in its case-in-chief) as asserting that McCullough should be trusted because—in his opinion as a twenty-nine year veteran of the police force— she was telling the truth. Such bolstering testimony, they claim, should have been struck as violative of Bohnert and Hunter. In Bohnert , a child accused the defendant of sexual abuse. See Bohnert, 312 Md. at 268 , 539 A.2d at 658 .

The State offered no physical evidence inculpating Bohnert. See Bohnert, 312 Md. at 270 , 539 A.2d at 659 . The State produced as a witness, however, a Protective Service Investigator with the Department of Social Services, ie., a social worker named Dora Temple. See Bohnert, 312 Md. at 270-71 , 539 A.2d at 659 .

After questioning extensively Temple about her credentials, the State offered—and the trial court accepted—her as “an expert in the field of child sexual abuse.” Bohnert, 312 Md. at 271 , 539 A.2d at 659 . Although Temple conducted a less-than-thorough examination of the child victim, she concluded nonetheless that the child “was, in fact, a victim of sexual abuse.” Id. The defendant took the stand and denied the charges. See Bohnert, 312 Md. at 270, 273 , 539 A.2d at 659, 660 . ⁶¹⁶ In its closing argument, the State emphasized repeatedly that Temple was an expert, her testimony was uncontroverted, and she corroborated the child’s allegations.

In particular, the prosecutor told the jury that: You have an expert opinion in this case [that] this child was sexually abused. It’s unrefuted, not disputed, not contradicted and you have [the child’s] testimony about what happened and how it happened and you have her testimony ... about who did it. There’s no question about who did it and I ask you to find verdicts of guilty on all counts. Bohnert, 312 Md. at 273-74 , 539 A.2d at 660-61 .

We acknowledged that, because of the lack of physical evidence, the child’s “credibility was crucial.” Bohnert, 312 Md. at 270 , 539 A.2d at 659 . Thus, “[i ]n the circumstances of this case,” the State used intentionally Temple’s testimony to bolster improperly and prejudicially the child’s allegations. Bohnert, 312 Md. at 277 , 539 A.2d at 662 (emphasis added). Accordingly, the trial court should have prevented Temple’s testimony from being considered by the jury.

See id. 2 We noted that such bolstering testimony is irrelevant and, therefore, violative of Maryland Rule 5-402. 3 See id. (‘Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant ....”) (internal quotation marks and citations omitted). We concluded, as relevant for present purposes, however, not that the trial judge abused his discretion, which would have been the proper standard if relevancy was the ultimate issue, see Merzbacher v. State, 346 Md. 391, 404-405 , 697 A.2d 432, 439 (1997) (stating that appellate courts are “generally loath to reverse a trial courtf’s relevancy determination] unless ... there is a ⁶¹⁷ clear showing