Wright v. State

D’Angelo Wright v. State of Maryland, No. 733, September Term, 2019, Opinion by Raker, J. CRIMINAL LAW – FLIGHT OR SURRENDER CRIMINAL LAW – FLIGHT OR REFUSAL TO FLEE When the sole issue at trial is the identity of the criminal actor, a trial court may give a pattern jury instruction on flight provided that it does not imply that the identity issue is settled. Circuit Court for Baltimore City Case No. 117144002 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 733 September Term, 2019 ______________________________________ D’ANGELO WRIGHT v. STATE OF MARYLAND ______________________________________ Kehoe, Beachley, Raker, Irma S. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Raker, J. ______________________________________ Filed: July 31, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-12-21 15:53-05:00 Suzanne C. Johnson, Clerk Appellant D’Angelo Wright was convicted in the Circuit Court for Baltimore City of attempted first-degree murder, use of a firearm in a crime of violence, and wear, carry, and transport of a handgun.

Appellant presents the following questions for our review: “1. Did the trial court abuse its discretion by allowing Detective Greenfield to identify Mr. Wright in photographs and surveillance footage even though he was not substantially familiar with Mr. Wright? 2. Did the trial court err in giving a flight instruction where the sole contested issue was the identity of the person who committed the crime and fled the scene? 3. Did the trial court commit plain error by allowing the prosecutor to improperly argue highly prejudicial facts that were not in evidence during closing argument?” Finding no error, we shall affirm.

I. Appellant was indicted by the Grand Jury for Baltimore City for attempted first- degree murder, attempted second-degree murder, first-degree assault, second-degree assault, reckless endangerment, use of a firearm in a crime of violence, wear, carry, and transport of a handgun, and discharge of a firearm within city limits. A jury convicted him of attempted first-degree murder, use of a firearm in a crime of violence, and wear, carry, and transport of a handgun. The court sentenced him to a term of incarceration of forty years, suspended all but twenty-five years, and three years probation for attempted first- degree murder and a consecutive term of fifteen years, the first five years without parole, for use of a firearm in a crime of violence.1 The following facts were presented at trial. On April 11, 2017, Eric Tate, III was playing a game of dice with some people.

The surveillance video from a nearby Dollar Shop showed an altercation between Mr. Tate and a man in a red hat, whom he claimed was appellant, over a dispute about the game. The man lost his hat during the altercation and ran away. The video showed two men approach Mr. Tate, one of whom shot him. Mr. Tate testified initially that he did not know the identity of the assailant because he was shot from behind, but later testified that it was appellant.

The video showed the assailant flee after the shooting. Police did not recover a weapon, gun residue, or fingerprints from the scene. Prior to trial, defense counsel moved in limine to exclude the testimony of Detective Eric Greenfield. Detective Greenfield had identified appellant as the suspect in the shooting after recognizing appellant’s face in the still images attached to an “attempt to identify” (BOLO) email circulated by Detective Andre Parker.

The State wanted Detective Greenfield to testify because of concerns with Mr. Tate’s credibility.2 Defense counsel argued that Detective Greenfield was not a witness to the crime and was not familiar enough with appellant to identify him. 1 For sentencing purposes, the court merged the conviction for wear, carry, and transport of a handgun with the conviction for use of a firearm in a crime of violence. 2 The court found that Mr. Tate was feigning memory loss for certain details surrounding the shooting. Based on this finding, the court allowed the State to play Detective Parker’s videotaped interview with Mr. Tate. 2 In response, the State noted that Detective Greenfield worked as an intelligence officer in the Office of the Chief Patrol for almost two years and tracked gang activity in appellant’s neighborhood. He knew appellant from social media posts, including photos, that he tracked as part of his job and from two in-person interactions with appellant lasting “anywhere from 30 seconds to 5 minutes” in the first half of 2016. The State argued that Detective Greenfield was sufficiently familiar with appellant’s appearance to offer his identification as a lay witness and that it was up to the jury to decide what weight to give to the identification.

The court denied appellant’s motion in limine, explaining as follows: “The Court is satisfied that Mr. Greenfield’s knowledge of [appellant] is not just based on one interaction but in fact he does have the kind of knowledge that [Md.] Rule 5-701 was created for. In Moreland v. State[, 207 Md. App. 563 , 53 A.3d 449 (2012)], the Court of Special Appeals indicates that . . . Rule 5-701 . . . allow[s] lay witnesses to testify to things such as the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of terms that can not be described factually in words apart from other inferences. That’s precisely what Mr. Greenfield is able to assist the jury with. . . . [W]hat the Court will allow . . .

Mr. Greenfield to testify to is that [appellant] is the person in the video. . . . He won’t be able to say that[] [appellant is] the person that did the shooting but he can say that’s the person on the video.” During Detective Greenfield’s testimony at trial, the State sought to admit a still photo of a man in a red hat, which was taken from the surveillance video footage of a restaurant near the Dollar Shop about one hour before the shooting and used in the BOLO poster that Detective Greenfield responded to. Defense counsel objected as follows: 3 “[THE STATE]: I’m going to show you what’s been marked as State’s Exhibit No. 22. *** Take a moment and review that. Are you familiar with what’s been marked as State’s Exhibit No. 22? [DETECTIVE GREENFIELD]: Yes, ma’am. [THE STATE]: And what is that? [DEFENSE COUNSEL]: Your Honor, we would object to this.

I’m just asking the Court to note our prior objection in the motions hearing in regards to this issue. Just put it in there for the record.” A bench conference ensued as follows: “THE COURT: What is it? I don’t know what she’s showing him? [DEFENSE COUNSEL]: The still photograph that was presented at the motions hearing. THE COURT: . . .

All right, your objection is noted for the record.” The court admitted the photo into evidence, and defense counsel did not object to Detective Greenfield’s testimony that the man in the photo was appellant. The State subsequently sought to admit the surveillance video as a separate exhibit, and defense counsel objected as follows: “[THE STATE]: Your Honor, at this time the State would submit into evidence State’s Exhibit 23, a certified copy of the surveillance video footage from [the restaurant]. THE COURT: Any objection? 4 [DEFENSE COUNSEL]: Just the objection from before. But other than that, no objection.” The court noted the objection and admitted the video.

After the jury saw the video, Detective Greenfield identified the man in the red hat in the video as appellant and testified that he was “certain.” He also testified that at the time of his pre-trial identification of appellant based on the BOLO poster, he was ninety-nine percent certain. Defense counsel did not object to any part of Detective Greenfield’s testimony.3 During a discussion on jury instructions, defense counsel objected to the State’s proposed instruction on flight of a defendant on the grounds that it implied improperly that appellant was the person who ran from the scene. The court denied the objection, ruling as follows: “The Court believes that there was sufficient evidence generated by the State and should the jury believe the testimony of the detective who identified [appellant] as the person whom he viewed in the Facebook post and . . . in the video and should the jury believe the testimony of Mr. Tate, who also identified [appellant] as the person that shot him, that there is enough evidence with respect to both of those witnesses’ testimony for the jury to believe [appellant] is the person in the video who was running from the scene next.” Using the Maryland Pattern Criminal Jury Instruction (“MPJI-Cr”) 3:24, the court instructed the jury on flight of a defendant as follows: “Flight or concealment of a defendant. A person’s flight immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as 3 In addition, defense counsel did not object to Detective Parker’s subsequent testimony confirming Detective Greenfield’s pre-trial identifications of appellant from the BOLO poster and the video. 5 evidence of guilt.

Flight under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence. You must first decide whether there is evidence of flight. If you decide there is evidence of flight you then must decide whether this flight shows a consciousness of guilt.” Shortly afterwards, the court instructed the jury, “The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the Defendant was the person who committed it.” After the court gave these instructions, defense counsel renewed her objection. During closing arguments, the State characterized Detective Greenfield’s identification of appellant as follows: “If it weren’t for the work of the detectives in this case this could easily be an unsolved attempted murder but they immediately identified and were able to recover the relevant surveillance footage . . . [Detective Parker] put together the attempt to identify flyer and when he sent it out to individuals who might be familiar with the area through the normal police department process[,] Detective Greenfield, who had a deep familiarity with the area, individuals associated with the area and organizations associated with the area through his role as an intel officer . . . identified the person in the surveillance footage that shot the victim as [appellant].” Defense counsel did not object to this statement.

Appellant was convicted and sentenced as above, and this timely appeal followed.

II

Before this Court, appellant presents three arguments for our consideration. First, he argues that the trial court erred in allowing Detective Greenfield to identify the man in 6 the restaurant surveillance video as appellant because Detective Greenfield did not have enough personal familiarity with appellant to offer lay opinion testimony as to appellant’s identity. Because Detective Greenfield’s testimony was “paramount” to the State’s case by linking appellant to the shooting, appellant contends that admitting this evidence was not harmless. Second, appellant argues that the court erred in instructing the jury on flight, maintaining that it is error to so instruct where the assailant and the person who fled were indisputably the same person and where the only issue was that person’s identity.

Citing California and Massachusetts cases, appellant essentially asks this Court to hold that it is per se improper for a trial court to instruct on flight of a defendant when the only issue in the case is the identity of the person who committed the crime. At trial, appellant’s defense was that he was not the person who shot Mr. Tate. He maintains that the flight instruction was improper and prejudicial because the sole issue was the identity of the assailant and the instruction—which referred to “flight or concealment of a defendant”—implied necessarily that appellant was the assailant. He concludes that there was no evidence that appellant was the person who fled the scene and hence that by giving the instruction, the court implied that appellant was the one who ran from the scene and was the assailant.

In sum, he concludes that the flight evidence was irrelevant to the jury’s determination of identity, improper, and misleading. Third, appellant argues that the State’s closing arguments contained facts not in evidence and warrant plain error review. Appellant maintains that the State asserted that Detective Greenfield identified appellant as the assailant. In appellant’s view, this 7 contradicts directly the scope of Detective Greenfield’s testimony established by the trial court, which was that he could testify only that appellant was the person in the restaurant surveillance video, not that he was the assailant.

Appellant argues that the State’s characterization of Detective Greenfield’s testimony was highly prejudicial and warrants review by this Court even though appellant did not object. Appellant concedes, as he must, that no objection was made at trial but maintains that the error is plain error, warranting this Court’s consideration. In response, the State argues first that appellant did not preserve his claim that Detective Greenfield was not familiar enough with appellant to identify him. The State maintains that defense counsel objected only to the admission of the photo and the restaurant surveillance video showing the man in the red hat, not to Detective Greenfield’s identification of the man in the red hat as appellant.

The State argues further that, if the claim is preserved, the trial court did not err in admitting the testimony because Detective Greenfield’s familiarity with appellant through social media accounts and brief in-person interactions was enough for him to offer lay opinion testimony as to appellant’s identity. Second, the State argues that the court did not err in instructing the jury on flight and that the instruction was proper. The State maintains that the instruction in this case— which did not reference “the defendant”—gives no reason to believe that the jurors would have thought that the trial court was telling them that appellant was the person fleeing. Instead, the State argues, it is more reasonable to infer that the jurors used their common sense and understood this instruction to mean that if the person fleeing was appellant, then they could consider flight as evidence of guilt.

The State maintains that it presented 8 sufficient evidence to suggest that appellant was the assailant who fled the scene after shooting Mr. Tate. The State argues that the wording of the instruction—“a defendant” instead of “the defendant”—did not imply that appellant was the assailant and that the instruction did not direct the jury to infer appellant’s guilt. In addition, at oral argument, the State argued that