Wright v. State

D’Angelo Wright v. State of Maryland, No. 40, September Term, 2020. Opinion by Biran, J. CRIMINAL LAW – JURY INSTRUCTION ON FLIGHT OR CONCEALMENT – The Court of Appeals held that, in general, it is error for a trial court to instruct the jury on “flight or concealment” per Maryland Criminal Pattern Jury Instruction 3:24 where the defense does not contest that whoever fled the scene is guilty of the charged offense, and instead contends only that the State failed to prove that the defendant was the fleeing offender. However, defense counsel must expressly and unambiguously state – prior to the jury charge – that the defense solely contests the identity of the defendant as the fleeing offender. CRIMINAL LAW – JURY INSTRUCTION ON FLIGHT OR CONCEALMENT – REVIEW FOR ABUSE OF DISCRETION – The Court held that the trial court did not abuse its discretion in giving the flight instruction in this case.

Petitioner’s trial counsel did not timely, expressly, and unambiguously state that the defense solely contested Petitioner’s identity as the fleeing offender. Even if the evidence of Petitioner’s flight had also been the only evidence upon which the State relied to prove that Petitioner committed the offense, the trial court would have had discretion to give the flight instruction. The trial judge’s reference to “Flight or Concealment of a Defendant” as the heading of the instruction did not improperly suggest to the jury that the trial judge believed Petitioner was the person who fled. Circuit Court for Baltimore City Case No. 117144002 Argued: April 12, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 40 September Term, 2020 D’ANGELO WRIGHT v. STATE OF MARYLAND Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Biran, J. Filed: July 13, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-07-13 13:44-04:00 Suzanne C. Johnson, Clerk A Maryland criminal pattern jury instruction concerning flight or concealment after the commission of a crime tells the jury, among other things, that a person’s flight or concealment “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 evidence of guilt.” Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions, 3:24 (2d ed. 2018). The instruction goes on to explain that, if the jury finds there is evidence of flight or concealment, the jury then must decide whether such flight or concealment “shows a consciousness of guilt.” Id. A common scenario in which this instruction is given occurs where the State has introduced evidence that: (1) someone committed a crime; and (2) the defendant on trial took some action after the crime that may constitute “flight.” In such a case, while the defendant typically disputes that they committed the crime, the defendant does not dispute that they left the scene of the crime. Rather, the defendant in this situation typically will argue that their conduct did not constitute “flight” or that, if it did, the defendant’s flight nevertheless does not show consciousness of guilt of the charged offenses.

The appeal before us here is a different kind of “flight” case. It is undisputed that, on April 11, 2017, someone shot Eric Tate, III, and immediately fled the scene. Petitioner D’Angelo Wright was subsequently charged with attempted first-degree murder and other offenses in connection with Tate’s shooting. At trial, Wright disputed both that he was the shooter and that he was the person who fled the scene.

Over Wright’s objection, the trial judge provided the jury with the pattern instruction on flight. The jury convicted Wright of attempted first-degree murder and related charges. The Court of Special Appeals affirmed Wright’s convictions, holding that the trial court did not err in giving the flight instruction. Wright then sought further review in this Court.

We conclude that a trial judge generally should not give the flight instruction where the sole contested issue at trial is the defendant’s identity as the fleeing offender. In such a case, the defendant is conceding that the State has proven all the elements necessary to show that the assailant – whoever it was – is guilty of the charged offenses. Whether the assailant demonstrated consciousness of guilt is irrelevant to the jury’s determination in such a case. All the jury must decide is whether the defendant was the fleeing assailant.

In this case, however, defense counsel did not make clear to the trial judge prior to the jury charge that the sole contested issue was Wright’s identity as the fleeing offender. Because the evidence adduced at trial generated the flight instruction, and because Wright did not make the necessary unequivocal statement to the trial court narrowing the case solely to Wright’s identity as the fleeing assailant, the trial court did not abuse its discretion in giving the flight instruction. I Background A. The Shooting On April 11, 2017, Eric Tate and several others were playing a game of dice in an alley in the 4400 block of Park Heights Avenue in Baltimore City, adjacent to the Dollar Shop V & Outlet (the “Dollar Shop”). Video footage from a camera affixed to the Dollar Shop (the “Dollar Shop Video”) showed that the following occurred at approximately 5:30 p.m.: 2 • Several men emerged from the alley.

One of the men was Tate. Another was a man wearing gray sneakers, a black shirt with an indiscernible symbol or logo on the left side of the chest and indiscernible writing on the back, and a red baseball-type cap with the bill of the cap facing backwards at an angle. • Tate argued with the man in the red cap, and then punched him. The cap fell off the man’s head as the man received Tate’s punch. • Soon afterwards, the man who had been wearing the red cap left the scene in a car without the red cap. Tate then walked down the sidewalk away from the Dollar Shop camera but still visible to the camera. • Approximately one minute after the man who had argued with Tate left in the car, two men approached Tate on foot, one of whom chased Tate into Park Heights Avenue and shot him at close range.

The shooter wore gray sneakers and a black shirt with an indiscernible symbol or logo on the left side of the chest and indiscernible writing on the back. • The shooter immediately ran away after shooting Tate. After police responded to a call that shots had been fired, they found Tate lying in the middle of Park Heights Avenue, critically injured as a result of bullet wounds to the head and leg. Tate survived the shooting. In the alley adjacent to the Dollar Shop, police recovered two dice.

The dice did not contain any latent fingerprints, and police did not recover any other physical evidence at the scene (such as a gun) that could help identify the shooter. Police collected and viewed the Dollar Shop Video. Although the altercation between Tate and the man in the red cap, 3 Tate’s shooting, and the shooter’s flight were all shown in the Dollar Shop Video, the faces of the men in the video were indiscernible. In addition to the Dollar Shop Video footage, police obtained video footage taken approximately 45 minutes before Tate’s shooting by cameras located inside and outside Miami Chicken (the “Miami Chicken Video”), at 2700 West Cold Spring Lane, which is around the corner from the Dollar Shop.

The Miami Chicken Video showed a man in the store wearing gray sneakers, a black shirt with a horseshoe-shaped logo on the left side of the chest along with writing on the back that said, “True Religion Brand Jeans® World Tour Fashion for the Senses,” and a red baseball-type cap with the bill facing backwards at an angle similar to the angle of the cap worn by the man who argued with Tate. Police believed that the man shown in the Miami Chicken Video and Tate’s shooter were the same person. On April 12, 2017, Detective Eric Greenfield saw still photos taken from the Miami Chicken Video that were included in a flyer circulated throughout the Baltimore Police Department asking for assistance in identifying the man pictured in the black shirt and red cap. Detective Greenfield believed that the man shown in the images taken from the Miami Chicken Video was Wright.

He had become familiar with Wright prior to April 12, 2017, through at least two in-person interactions with Wright and through monitoring him on social media, specifically Facebook and Twitter. Detective Greenfield knew Wright as “Lo” or “Cruddy Lo.” Wright’s Twitter handle was “@4300LL,” which Detective Greenfield believed referenced the 4300 block of Park Heights Avenue. Wright’s Facebook account was in the name of “ABMLo.” Detective Greenfield knew “ABM” to be short for 4 “All About Money,” a group that was associated with the area that included the block where Tate’s shooting occurred. On May 24, 2017, a grand jury in Baltimore City returned an indictment charging Wright with attempted first-degree murder, use of a firearm in a crime of violence, and related offenses in connection with Tate’s shooting.

After he was discharged from the hospital, Tate was interviewed by Baltimore Police Detective Andre Parker. When Detective Parker showed Tate various still photos taken from the Dollar Shop Video, Tate identified himself in the photos and also identified the man in the black shirt and red cap as “Lo.” Tate told Detective Parker that they were playing a game of dice and that he and Lo had gotten into an argument. B. Trial Wright’s trial began on December 17, 2018. In his opening statement, defense counsel alluded to the Dollar Shop Video that the jurors would see in the State’s case, telling the jurors that “the video just shows a small portion of what’s going on” and that “there’s a lot more to this case.” Noting that “there were several independent witnesses at the scene” who are visible on the video, defense counsel continued: “The police, with all their resources, have none of them here to tell you who the shooter was and the circumstances around the shooting.” In the State’s case-in-chief, Tate testified that he got into a fight with “Lo” prior to being shot.

Tate said he could not recall what started the fight or whether “Lo” accused him of cheating during the dice game. When asked about his interview with Detective Parker, Tate initially testified that he did not remember speaking with the detective. Later, 5 Tate said he remembered talking with Detective Parker, but could not recall the substance of the conversation. The trial court found that Tate was feigning memory loss of some of the details concerning the shooting, and allowed the State to play a videotaped recording of Detective Parker’s interview of Tate, in which Tate identified the man in the Dollar Shop Video with the black shirt and red cap as “Lo.” After watching the videotape of his interview with Detective Parker, Tate testified that he recalled telling Detective Parker that Lo said he was going to get his gun.

Tate also identified Wright in the courtroom as Lo. On cross-examination, defense counsel asked Tate more questions about the fight that occurred prior to the shooting: Q: Do you remember being involved in a physical altercation before you were shot? A: Can you repeat that? Q: Do you remember being involved in a physical altercation, like a fight, before you were shot?

A: Yeah. Q: Do you remember that or is that just because you were shown it on the video at some point? A: No, I know that. Q: Okay, and who were you involved in a fight with?

A: I was in a fight with Lo. Q: Okay. And what happened in that fight? A: I don’t remember.

Q: Okay. Do you remember punching anyone? A: I don’t know. Q: You used to be a boxer, is that correct?

A: Yeah. Q: Have you been involved in physical altercations before? The trial court sustained the State’s objection to defense counsel’s question whether Tate had been involved in prior physical altercations. 6 Tate further testified on cross-examination that the shooter approached him from behind and that he did not see who shot him. However, when defense counsel asked Tate if he remembered who shot him, Tate answered, “It was Lo.” The State introduced and played the Dollar Shop Video and the Miami Chicken Video for the jury.

Detective Greenfield identified Wright as the man wearing the black shirt and red cap in the Miami Chicken Video, and he also made an in-court identification of Wright. Detective Greenfield testified that he knew Wright as “Lo,” or “Cruddy Lo,” and explained that he had become familiar with Wright through at least two in-person interactions and through his regular monitoring of the @4300LL Twitter account and the ABMLo Facebook account. After the State concluded its presentation of evidence, the trial court discussed its proposed jury instructions with the parties. Pertinent to this appeal, the trial court proposed to give an instruction on “flight or concealment of a defendant.” The text of the trial court’s proposed instruction quoted verbatim the Maryland pattern jury instruction: 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 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.[1] Defense counsel objected to the court giving the flight instruction, arguing that the instruction improperly implied “that [Wright] was the one that ran and that’s the whole 1 Because the evidence at trial showed flight, rather than concealment, the trial court omitted alternative references to concealment in the pattern instruction. 7 crux of the case was that Mr. Wright did the shooting.” The trial court overruled the objection: The Court believes that there was sufficient evidence generated by the State and should the jury believe the testimony of the detective who identified the Defendant as the person whom he viewed in the Facebook post and was able to identify as the person in the video and should the jury believe the testimony of Mr. Tate, who also identified the Defendant as the person that shot him, that there is enough evidence with respect to both of those witnesses’ testimony for the jury to believe the Defendant is the person in the video who was running from the scene[.] After the trial court completed its instruction of the jury, which included the pattern instruction on flight as set forth above, defense counsel renewed his objection on that point. The trial court again overruled the objection.

In her closing argument, the prosecutor addressed not only the identity of the shooter, but also the other elements of the charged offenses. Among other things, the prosecutor argued that Wright acted willfully and with sufficient premeditation and deliberation for the jury to convict him of attempted first-degree murder. The prosecutor did not make any argument concerning Wright’s alleged flight or the consciousness of guilt that the jurors might infer from such flight. In his closing argument, defense counsel referred to the identification of Wright as the person shown in the red cap in the Dollar Shop Video as the “crux of the case.” He argued that the State failed to prove beyond a reasonable doubt that Wright was the person who was shown in the Dollar Shop Video shooting Tate.

According to defense counsel, “the only assault on the video you see is Mr. Tate actually, without any provocation, there was an argument, he punches the person with the red hat in the face and now the 8 Prosecution … wants to bootstrap that and say, well, that must have been the person that came back.” Although the trial court did not provide the jury with a copy of the jury instructions prior to the start of its deliberations, after the jury sent a note containing legal questions, the trial court sent back a copy of the jury instructions in their entirety. One of the jury’s questions asked about “rage” in connection with the attempted murder counts. While the trial transcript is somewhat unclear regarding that note, defense counsel stated at a later proceeding that “[t]he jurors asked a question right before they came back with their verdict; is rage a defense to the charges.” The jury convicted Wright of attempted murder in the first degree, use of a handgun in the commission of a crime of violence, and wearing, carrying, or transporting a handgun. The trial court sentenced Wright to 40 years of imprisonment, all but 25 years suspended on the attempted murder charge, and 15 years of imprisonment on the use of a handgun charge to run consecutive to the sentence for attempted murder.

The trial court ruled that the conviction for wearing, carrying, or transporting a handgun merged for purposes of sentencing with the conviction for use of a handgun. C. Appeal On appeal, Wright argued that the trial court erred in instructing the jury on flight. In a reported opinion, the Court of Special Appeals affirmed Wright’s convictions. Wright v. State, 247 Md. App. 216 (2020).

The intermediate appellate court relied on Thompson v. State, 393 Md. 291 (2006), in which this Court examined the propriety of flight instructions and approved the Maryland pattern jury instruction on flight that the trial court gave in this 9 case. Wright, 247 Md. App. at 230 . The Court of Special Appeals explained that, “[a]lthough the particular issue of identity as the sole issue in the case was not before the Thompson court, the Court’s reasoning is applicable. Thompson does not stand for the proposition that a flight instruction, when identity is the sole issue, is categorically impermissible; if the Court thought that to be the case, it could have said so, and it did not.” Id.

Concluding that “[i]t is not the law in Maryland that a flight instruction is categorically impermissible when identity is the sole issue at trial,” id. at 233 , the court declined to adopt the per se rule for which Wright argued. Id. Instead, the court examined the instruction the trial court gave on flight in the context of the jury instructions in their entirety, and held that the trial court did not abuse its discretion: The instruction, which referred to flight of “a defendant” and not “the defendant,” did not imply to the jury that the court believed that appellant was the assailant…. [I]t is reasonable to infer that the jury was aware of one of the most fundamental distinctions in the English language—between “a” person or thing and “the” person or thing. We agree with the State that if the jury had concluded that appellant was not the person in the surveillance video, it would not have then concluded that he must be guilty because someone fled the scene.

In addition, immediately following the instruction, the court reminded the jury that the State had the ultimate burden of proving that appellant was the assailant. The court instructed the jury that the burden was on the State to prove that “the offense was committed and the Defendant was the person who committed it.” The court also told the jury that it was not required to draw an inference of guilt; the court said that “[a] person’s flight immediately after the commission of a crime ... is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt.” The court further instructed the jury not to draw any conclusions “about my views of the case.” Viewing the instructions as a whole and the evidence in the case, we hold that the trial court did not err in instructing the jury on flight. Id. 10 On September 16, 2020, Wright filed a petition for certiorari seeking review of the following question: “Did the trial court err in giving a flight instruction where the sole contested issue in the case was the identity of the person who committed the crime and fled the scene?” On November 10, 2020, we granted Wright’s petition. Wright v. State, 471 Md. 265 (2020).2 II Standard of Review We review a trial court’s decision to give a particular jury instruction for abuse of discretion.

Taylor v. State, No. 2, Sept. Term 2020, slip op. at 25 (Md. April 23, 2021); Hall v. State, 437 Md. 534, 539 (2014). A trial court abuses its discretion if it commits an error of law in giving an instruction. Harris v. State, 458 Md. 370, 406 (2018). III Discussion A. The Maryland Pattern Instruction on Flight or Concealment The Maryland pattern jury instruction on flight or concealment provides: FLIGHT OR CONCEALMENT OF DEFENDANT A person’s flight [concealment] 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 evidence of guilt.

Flight [concealment] 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 [concealment]. If 2 In the Court of Special Appeals, Wright also raised issues concerning Detective Greenfield’s identification of Wright and the prosecutor’s closing argument. The Court of Special Appeals rejected those claims of error, and Wright did not seek further review of them in his petition for certiorari. 11 you decide there is evidence of flight [concealment], you then must decide whether this flight [concealment] shows a consciousness of guilt.

MPJI-Cr 3:24. In Thompson v. State, this Court held that the above instruction is a correct statement of Maryland law. 393 Md. at 303 . We rejected the contention that, in giving this flight instruction to a jury, a judge impermissibly emphasizes one piece of circumstantial evidence over the remainder of the prosecution’s case. Id. at 306 .

Rather, the instruction “attempts to insure that the jury does not imbue evidence of flight with more weight than it deserves.” Id. We also noted that “[f]light evidence and a jury instruction on flight … are particularly appropriate in circumstances where a defendant places his or her mental status at the time that the crime was committed in issue.” Id. at 308 . We further explained that the flight instruction should not be given unless the jury may reasonably draw a chain of four inferences from the evidence adduced at trial: that the behavior of the defendant suggests flight; that the flight suggests a consciousness of guilt; that the consciousness of guilt is related to the crime charged or a closely related crime; and that the consciousness of guilt of the crime charged suggests actual guilt of the crime charged or a closely related crime. Id. at 312 .

In Thompson, there apparently was no dispute that Thompson was the person who fled the scene. However, the State failed to produce evidence from which the jury could reasonably draw the third of the required inferences: that Thompson’s consciousness of 12 guilt was consciousness of guilt of the crimes for which he was on trial. Id. at 312-15 .3 Because we could not conclude that the erroneous jury instruction was harmless beyond a reasonable doubt, we remanded for a new trial. Id. at 315 .

B. A Limitation on the Use of the Flight Instruction In this case, unlike Thompson, Wright disputed that he was the person who fled the scene of the crime. Wright argues that, where the sole issue in dispute in a criminal trial is the identity of the fleeing assailant, it is error to give the flight instruction. In general, we agree with Wright on this point. Under Maryland Rule 4-325(c), the trial court “may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.

The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” This Court has interpreted Rule 4-325(c) “as 3 In Thompson, shortly after a shooting, police responded to the scene and recognized Thompson as matching the description of the perpetrator provided by the victim and