Wilkerson v. State

THIEME, Judge. Appellant Omar Wilkerson was tried and convicted of murder and related charges in a jury trial in the Circuit Court for the City of Baltimore. He was sentenced to life for first degree murder, and twenty years consecutive, the first five years without parole, for use of a handgun in a crime of violence. The third count of conviction, for carrying a handgun, was merged with the latter count.

Wilkerson appeals and asks: ⁵⁶¹ 1. Did the court below err by overruling Wilkerson’s objection to the use of “other crimes” evidence regarding robbery of a drug dealer on March 13,1999? 2. Did the court below err by excluding Prince Broadway-Bey’s testimony about Antoine Lucas’s alleged admission that he had murdered the victim? 3. Did the court below err by allowing the detective’s hearsay testimony about Lakisha Pridgeon’s unreliable identification of appellant’s photograph when Pridgeon was not present to testify?

To these questions, we answer “no” and explain. Facts Wilkerson was charged with the murder of Shaborn Sha-bazz Allah on North Avenue in the City of Baltimore on the afternoon of March 5, 1999. He became a suspect on March 13 after police found a handgun, later shown to be the likely murder weapon, in a car he occupied with three others. He was convicted after a four-day trial in which the State presented evidence regarding both the March 13 incident and the homicide itself.

A The largest body of evidence at trial pertained to an incident that occurred on March 13, a robbery of a drug dealer in which Wilkerson allegedly participated, along with Prince Broadway-Bey and Antoine Lucas. Police recovered a handgun from the back of the car in which the three were riding; it was found at the foot of the seat in which Lucas had been sitting. On the first day of the trial, Wilkerson objected to admission of any evidence of the robbery, except for the discovery of the handgun itself. The court reserved its ruling.

The next day, prior to the beginning of testimony, the State offered its rationale for admitting the “other crimes” evidence pertaining to the robbery, namely: ⁵⁶² i. to show identity, ie., that the person in possession of the weapon on March 13 also possessed that weapon on March 5; ii. to show lack of mistake, ie., that the State had found the right suspect, because that suspect was in possession of the murder weapon; and iii. that the State needed the evidence of the weapon’s use for the robbery to establish Wilkerson’s possession of it. 1 The defense argued for exclusion of this “other crimes” evidence as being unfairly prejudicial, especially after another witness had testified that the murder “looked like, to him, like a robbery gone bad, and then you have the state trying to show there was a robbery a week later involving Mr. Wilkerson.” The court rejected this argument: The testimony is, as proffered, appears to be relevant, certainly on identity and also on what Solomon v[.] State refers to [as] assumption of the risk, including when several offenses are so connected in point in time and of time, or circumstances, that one can’t fully prove or fully show without proving the other, which I think is the case here. And the evidence has been proffered for reasons other than to prove the criminal character of the defendant. In other words, it transcends mere evidence of bad character. The court, however, granted the defense a continuing objection to any testimony related to the March 13 robbery.

Richard Jolley testified about the March 13 incident. On that day, he was hacking, ie., offering rides in his Pontiac Grand Am in exchange for money. He picked up three men, ⁵⁶³ including Wilkerson, who sat in the front passenger seat. One of the men asked Jolley to stop so that he could buy marijuana.

Jolley complied, and Wilkerson and the others got out. Over defense objections, Jolley testified that he saw Wilkerson grab the drug dealer’s arm, keeping his other hand in his pocket. The second passenger rummaged through the dealer’s pockets. Jolley testified, however, that he saw no weapon brandished during the robbery.

When Wilkerson and the others got back into the car, he “gave the boy [sitting behind Jolley] the bag of weed they had took from the guy.” Shortly thereafter, police stopped the car and arrested its occupants. In doing so, they found the handgun. The police search was the first time Jolley noticed the gun. Though Jolley was charged in the robbery, the charges were later dropped when it was determined he had not been involved.

Officer Elihea Rushdan of the Housing Authority Police testified that, on March 13 at 5:25 p.m., he was on patrol in the 700 block of Lanvale Street. After a citizen pointed out the Grand Am to him, he and other officers pursued it for three blocks, then successfully stopped it and ordered the occupants out of the car. The front seat passenger ran away. Officer Rushdan chased that passenger, Wilkerson, who eventually hid behind a shed.

After ordering the escapee into the open, Officer Rushdan arrested him. The three other persons in the car, Jolley, Broadway-Bey, 2 and Lucas, were also arrested. The officers who searched the car told Officer Rushdan that they found a .38 caliber handgun on the floor of the right rear side of the passenger compartment. Officer Joseph Green, also of the Housing Authority Police, testified regarding the March 13 incident as well.

While on patrol in a marked vehicle with Officer John Ross, Officer Green participated in the stop of the Grand Am and stood guard over the car’s other occupants, including Jolley, the driver, Broadway-Bey, the left rear passenger, and Lucas, the ⁵⁶⁴ right rear passenger; during the period in which Wilkerson was fleeing the scene. Officer Green testified that he found the handgun in the Grand Am. He described Wilkerson as standing five feet and five inches tall and weighing 160 pounds. Officer Green also averred that the stop on March 13 was unrelated to the murder investigation pertaining to the incident of March 5.

Officer Christopher Reisanger, also of the Housing Authority Police, testified that he participated in the March 13 stop of the Grand Am. He saw Wilkerson exit the right front seat of the car and flee. Officer Reisanger participated in the chase and arrest of Wilkerson. Mark Takacs, a firearms expert for the Baltimore City Police Department, testified that two bullets were recovered from the murder scene on March 5 and one from the victim’s body.

Takacs examined the handgun seized on March 13 and, after firing test rounds and making comparisons, he determined that its rifling characteristics closely resembled those for the seized weapon. He noted that both the seized gun and the murder weapon had the same unusual rifling characteristics. Kathleen Lundy, a materials analyst for the Federal Bureau of Investigation, testified that she had performed comparative analysis on the three projectiles and three live cartridges she received from the Baltimore City Police Department. She concluded that all six items contained similar lead material and were probably manufactured by Remington Peters.

The lead material in one bullet and one projectile was analytically indistinguishable, as was the lead in one bullet and the other two projectiles. Prince Broadway-Bey testified that, on March 13, he was in the Grand Am with Wilkerson, Lucas, and the driver who was operating his car as a hack for the day. The handgun in the car belonged to Lucas, who normally kept the weapon in his possession. While the robbery was in progress, however, Wilkerson had possession of the gun, and he handed it over to ⁵⁶⁵ Lucas just before he got back into the car.

Lucas then put the gun under his coat. B As to the homicide on March 5, Officer Scott Davis of the Baltimore City Police Department testified that he responded to the report of a shooting in the 600 block of North Avenue. There, he saw the victim lying face down in the median strip. By the time Officer Davis reached the scene, the victim had no vital signs, and appeared to have died from a single visible bullet wound.

The victim was carrying a small quantity of marijuana. Gregory Stewart, a crime lab technician for the Baltimore City Police Department, testified that he recovered two bullets, one from the victim’s back and the other from the ground at the comer of North and Park Avenues. The body was found 88 feet from that comer. A witness to the shooting, Carl Shifflet, testified that he heard people arguing, then saw one man chase another down the median strip on North Avenue.

He then heard three or four popping sounds, and the man being chased fell. The other man turned and ran in the direction from which he came. Detective Joseph Kleinota of the Baltimore City Police Department testified that another eyewitness, Linmark Pearson, identified Wilkerson from a photographic array on March 26, 1999. That array, he admitted, did not include photographs of the other three occupants of the Grand Am.

Over defense objections, the detective was also allowed to testify that Lakisha Pridgeon had viewed the array and told him that she was 60 to 70 percent sure that the photograph of Wilkerson was, in fact, the man she saw on March 5. She could not, however, be positive. Detective Kleinota also testified that Broadway-Bey had told him that, on March 13, Wilkerson produced a handgun during the robbery. In the car, Wilkerson gave that gun to Lucas, and the weapon was recovered at Lucas’s feet. ⁵⁶⁶ Linmark Pearson testified that on March 5, at about 3:30 p.m., he was stopped in his vehicle at a red light at the corner of Park and North Avenues.

He saw the doors of another car fly open, and then one man got out of that car and ran. Another man got out and, with handgun drawn, chased the runner. The armed man fired several shots at the runner, who then fell in the median strip. The armed man then ran up Park Avenue and cut through some buildings.

Pearson identified Wilkerson as the armed man. On cross-examination, however, the defense impeached Pearson’s credibility somewhat, because he was forced to admit he had once been placed on probation for failing to disclose a material fact concerning unemployment insurance. Dr. Jack Titus, assistant medical examiner, testified that he had reviewed the autopsy report pertaining to the victim, which had been written by another medical examiner. The victim was thirty years of age at the time of his death.

He suffered three gunshot wounds, one of which lacerated his lung and heart, causing his death. A projectile was recovered from the victim’s body, and police found another at the scene of the shooting. C After Dr. Titus testified, the prosecution rested its case, and the defense began its presentation. First, it proffered potentially exculpatory testimony by Prince Broadway-Bey, one of the passengers in Jolley’s Grand Am on March 13.

Out of the presence of the jury, Broadway-Bey testified that, between March 9 and March 13, Lucas had admitted to him that he, and not Wilkerson, had committed the murder. Lucas showed Broadway-Bey the handgun. He described Lucas’s statement in the following colloquy with the defense counsel: Q: Where did he tell you this? A: When he was up at his house.

Q: What were his exact words if you can remember? A: I don’t remember. We was up there smoking. All I know is he told me what happened though. ⁵⁶⁷ Q: What did he tell you, do you remember?

A: He told me he was robbing a boy and the boy got out and ran and he started shooting him. The State argued against admitting this statement against penal interest, and defense counsel argued vociferously for admitting Broadway-Bey’s full testimony, including this statement. The court found the evidence to be inadmissible. Although Lucas was unavailable to testify, it determined that the statement was insufficiently trustworthy to be admissible.

Wilkerson next called two witnesses on his behalf, both of whom were near the scene of the March 5 murder at the time it occurred. First, Sederick Vander-Bey testified that Wilkerson was with him when the shots rang out. Second, Albert Clark testified that Wilkerson, who he knows by sight, was sitting with Vander-Bey in a small shopping mall off North Avenue. Although Clark was not with Wilkerson and Vander-Bey at the time he heard shots, he recalled that only a few seconds elapsed from the time he saw the men until he heard the gunfire.

Additionally, Kevin Blackmon testified on behalf of Wilkerson. Blackmon had been an inmate in the Baltimore City Detention Center during the eight-month period after May 1999. He frequently conversed with Lucas, who was in a cell across the hall, and he testified as follows regarding those conversations: Q: Can you tell the members of the jury what if anything Mr. Lucas said that you found to be unusual? A: He told me that he was involved in a murder that he said he committed a murder that this defendant right here, that he didn’t nothing to do with.

He said he did it. That’s what he told me. Q: How many times did Mr. Lucas mention this to you? A: Plenty times.

Q: Can you tell the jury what details Mr. Lucas gave you about the particular homicide? ⁵⁶⁸ A: He said it was broad daylight, it was an attempted robbery and he chased the victim down and slot [sic ] him in broad daylight in the middle of the median strip. Q: Did he tell you where approximately this happened? A: He said it was Park Avenue and North Avenue. Park and North Avenue.

Q: Again, how many times did he mention this to you? A: Countless times. Wilkerson also testified on his own behalf. He stated that, on March 5 at 3:30 p.m., he was with Vander-Bey and Tatem Cloud in a parking lot near the stores where Clark claimed to have seen him.

Numerous other persons were in the area. He heard shots from North Avenue and walked towards that street with his companions to investigate. He said that the police were arriving on the scene when he got there. Wilkerson denied shooting the victim; in fact, he claimed never to have seen the victim at all.

He also denied being in possession, of the handgun on March 13, explaining that the gun belonged to Lucas. After the defense rested, the court denied Wilkerson’s motion for judgment of acquittal. Discussion I Wilkerson’s first issue on appeal is whether the court below erred by admitting evidence regarding robbery of a drug dealer on March 13, 1999. Wilkerson challenges the admissibility of this evidence under the evidentiary rules regarding other crimes or “bad acts.” During trial, the court granted him a continuing objection regarding this testimony.

Admissibility of other crimes or bad acts evidence, other than for impeachment purposes, is governed by evidentiary principles that are currently embodied in Maryland Rule 5-404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in ⁵⁶⁹ conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. In allowing for the admissibility of such evidence, we walk a fine line between evidence that would explain commonalities and seeming coincidences and evidence that would lead the jury to convict someone because “once a criminal, always a criminal.” Our rule seeks to encourage the former and prevent the latter. Indeed, “ ‘the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.’ ” Streater v. State, 352 Md. 800, 806 , 724 A.2d 111 (1999) (quoting John W. Strong, McCormick on Evidence § 190 (4th ed.1992)).

In situations where evidence of other crimes or bad acts might be admissible, Maryland courts have set forth a three-prong test whereby we determine whether such evidence comes in: i. The court first determines whether the evidence fits within one or more of the special relevancy exceptions in the rule, e.g., does the evidence show motive, opportunity, intent, or the like. This is a legal test, and involves no exercise of discretion by the trial court. ii. If one of the special relevancy exceptions applies, then the court determines whether the accused’s involvement in the other crimes is established by clear and convincing evidence. iii.

If the evidence is both relevant and likely to be true, then the court determines whether the prejudicial effect of admission outweighs the probative value. If not, the court will allow the evidence to be presented. This step is matter of discretion for the court and will not be disturbed on appeal unless clearly abused. ⁵⁷⁰ See Streater, 352 Md. at 807-08 , 724 A.2d 111 ; Terry v. State, 332 Md. 329, 335 , 631 A.2d 424 (1993); State v. Faulkner, 314 Md. 630, 634-35 , 552 A.2d 896 (1989). Our courts scrutinize evidence pertaining to other crimes and bad acts carefully to guard against the danger of misuse and to avoid the risk that such evidence will be used improperly by the jury against the defendant.

See Streater, 352 Md. at 806-11 , 724 A.2d 111 (citing several cases exemplifying application of this rule, including Ayers v. State, 335 Md. 602, 632 , 645 A.2d 22 (1994); Straughn v. State, 297 Md. 329, 333-34 , 465 A.2d 1166 (1983); Faulkner, 314 Md. at 635 , 552 A.2d 896 ; Ross v. State, 276 Md. 664, 671 , 350 A.2d 680 (1976); Cross v. State, 282 Md. 468, 474 , 386 A.2d 757 (1978)). Thus, as a general rule, “evidence of a defendant’s prior criminal acts may not be introduced to prove guilt of the offense for which the defendant is on trial.” Holmes v. State, 119 Md.App. 518, 529 , 705 A.2d 118 (1998) (quoting Ayers, 335 Md. at 630 , 645 A.2d 22 ) (emphasis added). The exception to this rule, however, allows evidence of a defendant’s prior acts if “it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant’s guilt based on a propensity to commit crime or his character as a criminal.” Faulkner, 314 Md. at 634 , 552 A.2d 896 . In other words, the evidence offered must have “special relevance.” Terry, 332 Md. at 334 , 631 A.2d 424 (quoting Harris v. State, 324 Md. 490, 500 , 597 A.2d 956 (1991)); Holmes, 119 Md.App. at 530 , 705 A.2d 118 (“Evidence of other crimes may be admitted if it ‘is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant’s guilt based on propensity to commit crime or his character as a criminal.’ Stated differently, evidence of prior bad acts is admissible if it has ‘special relevance’.[sic ]”) (quoting Ayers, 335 Md. at 631 , 645 A.2d 22 ).

Here, Wilkerson’s objection did not center around the entire account of the events of March 13, but only pertained to the robbery that took place. For the defense, the traffic stop was a neutral event, and the recovery of a handgun at the feet ⁵⁷¹ of Antoine Lucas went in Wilkerson’s favor. Evidence came in to show that the gun belonged to Lucas, thus creating an opportunity for the jury to infer reasonable doubt. The defense, however, sought to extricate the finding of the gun from its broader context and “sanitize it somewhat so that you get his possession of the gun without the robbery.” The State argued that such wordplay was both transparent and futile, for the other crimes evidence showed lack of mistake and identity and thus had special relevance under Rule 5-404(b).

The defense, as expected, countered that the prejudicial effect would outweigh the probative value of relating the full account of the events of March 13. The court found that the evidence was admissible as proffered because it “appear[ed] to be relevant, certainly on identity and also on what Solomon v. State 3 refers to assumption of the risk, including when several ⁵⁷² offenses are so connected ... in time ... or circumstance, that one can’t [be] fully prove[n] or fully show[n] without proving the other.” The court’s determination under the standard for Rule 5-404(b) was proper. In keeping with the first prong of the test, the evidence as a matter of law would establish Wilkerson’s identity and lack of mistake, because as the person in possession of the weapon during the robbery on March 13, he may have also been in possession of the murder weapon as part of a similar scenario eight days earlier. Jolley’s whole testimony was critical to this point.

It contradicted Broadway-Bey’s contention that the gun belonged to and remained in the possession of Lucas during the