Yates v. State

GRAEFF, J. A jury sitting in the Circuit Court for Baltimore County convicted Warren Jerome Yates, appellant, of second degree felony murder, use of a handgun in the commission of a crime ⁷⁰⁴ of violence, use of a handgun in the commission of a felony, drug trafficking with a firearm, distribution of marijuana, and other offenses arising from the shooting of Sherry Worcester. The sentencing court imposed consecutive sentences totaling 95 years. On appeal, appellant raises four questions for review, which we have rephrased and reordered as follows: 1. Did the circuit court err in admitting hearsay evidence as a prior inconsistent statement? 2.

Was the evidence sufficient to support appellant’s conviction of felony murder where the conduct resulting in the victim’s death did not occur during the commission of the underlying felony? 3. Did the circuit court plainly err in failing to instruct the jury that, in order to convict Mr. Yates of felony murder, the State had to prove that the conduct resulting in the victim’s death occurred during the commission of the underlying felony? 4. Was the evidence sufficient to support appellant’s use of a handgun convictions in the absence of evidence that the gun used was a handgun? For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND On January 7, 2009, Ms. Worcester was shot and killed outside of her home in Middle River, Maryland. She had gone outside to remove the trash and was talking with relatives when the group heard gunshots. Ms. Worcester said: “I’ve been hit.” She died of a single gunshot wound. On October 6, 2009, trial commenced against appellant and his co-defendant, Donald Kohler.

The State presented testimony from nineteen witnesses. Four of these witnesses, Stephanie Foltz, William Griffin, Chris Jagd, and Justin Wimbush, testified that they were present at a home in Middle River, Maryland on January 7, 2009, when Mr. Kohler pur ⁷⁰⁵ chased four pounds of marijuana. Although details of the transaction varied, the testimony was consistent that the drugs ultimately were given to Mr. Kohler in exchange for money, which was wrapped in a bag. Mr. Jagd testified that, after Mr. Kohler took the drugs and left the house, appellant “opened the bag and noticed that the money was fake.” Appellant ran out of the house after Mr. Kohler.

Three witnesses testified regarding the events that took place after the fake money was discovered. Mr. Wimbush testified that he saw appellant run after Mr. Kohler into an alley. He heard gunshots, and then he saw appellant running back toward the house from the top of the alley. Mr. Wimbush saw appellant get into a car with Mr. Griffin and leave.

Mr. Jagd also saw appellant chase Mr. Kohler. Mr. Jagd initially testified that he did not see appellant shoot a gun, but he saw a gun in appellant’s hand when appellant ran out the front door after Mr. Kohler. Counsel for Mr. Kohler then questioned Mr. Jagd about his statement to Detective Sekou Hinton that he saw appellant “aim the pistol, pause, aim like he was trying to hit him, pause, and then move the gun to the side and then fire.” Mr. Jagd then stated that he “just remembered” that he did see Mr. Yates fire six shots with a “revolver.” When questioned about his statement to the police that the gun was a “semi-automatic” handgun, he admitted that he did not “know the difference between an automatic and a revolver.” Mr. Jagd testified that he spoke with appellant after the shooting. As discussed in more detail infra, he could not recall exactly what appellant said, but he testified that he thought appellant said: “I don’t know if I got him” or “I think I got him.” Mr. Griffin testified that he saw appellant run out the front door, and he then heard two gunshots.

He met appellant at appellant’s car, and as they were leaving, he asked appellant: “[Wjhat happened with the gunshots.” Appellant replied that “he fired the gun.” ⁷⁰⁶ At the conclusion of the State’s case, counsel for both appellant and Mr. Kohler moved for judgment of acquittal on all counts. The court denied the motions. Appellant then rested without introducing any evidence. Mr. Kohler introduced some evidence on his behalf, but he did not testify. 1 The defendants renewed their motions for judgment of acquittal, which the court denied.

As indicated, the jury convicted appellant of second degree felony murder, use of a handgun in the commission of a crime of violence, use of a handgun in the commission of a felony, drug trafficking with a firearm, distribution of marijuana, and other offenses. 2 This timely appeal followed. DISCUSSION I. Hearsay Appellant’s first contention involves Detective Hinton’s testimony regarding his interview with Mr. Jagd after the murder. Detective Hinton testified, over objection, about a statement Mr. Jagd made to him after the murder. Mr. Jagd advised that, as appellant was leaving' the scene, appellant stated: “I popped that [N...].” Appellant argues that this testimony was inadmissible hearsay, which severely prejudiced him.

The State does not argue that the evidence was properly admitted. Rather, it asserts that, “[e]ven assuming that the ⁷⁰⁷ trial court erred, reversal is not warranted because the essential content of Jagd’s statement,” that appellant admitted that he shot the gun, “was elsewhere properly admitted without objection, thereby obviating any unfair prejudice.” The testimony at issue was elicited by counsel for Mr. Kohler, appellant’s co-defendant. During the State’s direct examination of Mr. Jagd, he testified that he could not remember what appellant said to him after the shooting. On cross-examination, Mr. Kohler’s attorney followed up on this questioning, asking again if Mr. Jagd remembered what appellant said to him when appellant was running back to the house after the shooting.

Mr. Jagd replied: “Nah. I said something to him. I said, did you shoot him? I don’t remember exactly what he said.

I think he said, I don’t know if I got him, or something around that, or I think I got him. I’m not sure.” Mr. Jagd testified that he could not remember appellant’s exact words. When counsel for Mr. Kohler questioned Mr. Jagd about his statement to Detective Hinton, Mr. Jagd denied that appellant made the above-referenced statement, reiterating that he asked appellant, “did you shoot him,” and appellant said: “I think so, or something around that.” Counsel for Mr. Kohler subsequently revisited the issue with Detective Hinton. Detective Hinton testified that Mr. Jagd told him, during an interview shortly after the shooting, that appellant, while running back to the house, said: “I popped that [N... ].” The court permitted the testimony as a “prior inconsistent statement.” A prior statement by a witness that is inconsistent with the witness’s testimony in court generally is admissible to impeach the credibility of the witness.

Stewart v. State, 342 Md. 230, 236 , 674 A.2d 944 (1996). Here, however, counsel for Mr. Kohler did not use the statement to show that Mr. Jagd was an incredible witness, but rather, he used the evidence as substantive evidence. Counsel for Mr. Kohler stated in closing argument that this statement showed that Mr. Kohler, who is white, was not the purported buyer in the drug deal. ⁷⁰⁸ When prior inconsistent statements are offered to prove the truth of the matter asserted, the statements are hearsay. Stewart, 342 Md. at 236 , 674 A.2d 944 .

Generally, hearsay is inadmissible. Md. Rule 5-802. Pursuant to Md. Rule 5-802.1(a), however, prior inconsistent statements are admissible as substantive evidence if certain requirements are met. The rule provides: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement.

Md. Rule 5-802.1(a). Here, as appellant notes, there was no evidence that Mr. Jagd’s statement to Det. Hinton was given under oath, reduced to writing and signed by the declarant, or recorded in a substantially verbatim fashion. Thus, the prior inconsistent statement was not admissible as substantive evidence.

The trial court, however, never limited its use to impeachment, either at the time the statement was admitted or during jury instructions, and counsel for Mr. Kohler used the statement as substantive evidence. As indicated, however, the State asserts that, even if the admission of the statement was error, it was not reversible error because there was no unfair prejudice. The Maryland appellate courts have set forth the standard for assessing harmless error as follows: [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such ⁷⁰⁹ error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded— may have contributed to the rendition of the guilty verdict.

Perez v. State, 420 Md. 57, 66 , 21 A.3d 1048 (2011) (quoting Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976)). This Court and the Court of Appeals have found the erroneous admission of evidence to be harmless if evidence to the same effect was introduced, without objection, at another time during the trial. See Robeson v. State, 285 Md. 498, 507 , 403 A.2d 1221 (1979) (“The law in this State is settled that where a witness later gives testimony, without objection, which is to the same effect as earlier testimony to which an objection was overruled, any error in the earlier ruling is harmless.”), cert. denied, 444 U.S. 1021 , 100 S.Ct. 680 , 62 L.Ed.2d 654 (1980); Peisner v. State, 236 Md. 137, 145 , 202 A.2d 585 (1964) (any error in the admission of testimony “was rendered harmless” by the admission of competent “evidence to the same effect”), cert. denied, 379 U.S. 1001 , 85 S.Ct. 721 , 13 L.Ed.2d 702 (1965); Berry v. State, 155 Md.App. 144, 170 , 843 A.2d 93 (“We shall not find reversible error when objectionable testimony is admitted if the essential contents of that objectionable testimony have already been established and presented to the jury without objection through the testimony of other witnesses.”), cer t. denied, 381 Md. 674 , 851 A.2d 594 (2004); Williams v. State, 131 Md.App. 1, 27 , 748 A.2d 1 (where evidence to the same effect as the objected to evidence was admitted, any error in the admission of the objectionable evidence was harmless), cert. denied, 359 Md. 335 , 753 A.2d 1032 (2000). In the present case, the critical content of the objectionable statement, that appellant fired the gun that killed the victim, was admitted without objection on three other occasions.

Mr. Jagd testified that, when appellant was walking back toward the house, he asked appellant “did you shoot him?” Mr. Jagd testified that appellant replied: “I don’t know if I got him, or something around that, or I think I got him.” He reiterated ⁷¹⁰ that, when he asked appellant if he shot the buyer, appellant stated: “I think so.” Similarly, Mr. Griffin testified that, after the shooting, he asked appellant “what happened with the gunshots,” and appellant replied that he “fired the gun.” All of these statements, which were admitted without objection, evidenced appellant’s admission that he fired the gun. Accordingly, the admission of Detective Hinton’s testimony, which also constituted an admission that appellant believed he shot the drug purchaser, was cumulative to the other evidence that appellant shot at the drug purchaser, and therefore, it was harmless error that does not require reversal of appellant’s conviction. Appellant argues that the error was not harmless because the statement was “inflammatory” and “provocative.” When asked to expound on that contention in oral argument, counsel stressed that the testimony: (1) involved a “boastful” confession, with appellant happy about killing the drug purchaser; and (2) it was testimony from a police officer. 3 Appellant asserts that Detective Hinton’s testimony, that appellant “brazenly confessed to committing the crimes,” was prejudicial because it was “far more compelling than the halfhearted accounts” given by the other witnesses. We disagree.

A central issue in this case was whether appellant shot Ms. Worcester. 4 Two witnesses testified that appellant admitted that he fired the gun. Detective Hinton’s testimony, although characterizing appellant’s admission of the shooting in a more provocative manner, was merely relaying ⁷¹¹ what another witness told him, and it was cumulative to the prior testimony on this issue. One factor that an appellate court considers in determining whether the admission of inadmissible evidence was harmless error is “ ‘the use the State made’ of the inadmissible [evidence].” Harrod v. State, 423 Md. 24, 40 , 31 A.3d 173 (2011) (quoting Anderson v. State, 420 Md. 554, 569 , 24 A.3d 692 (2011)). In both Harrod and Anderson , the State emphasized the inadmissible evidence in closing argument, which illustrated the importance of the evidence and precluded a finding of harmless error.

Harrod , at 41-42, 31 A.3d at 183-84 ; Anderson, 420 Md. at 569 , 24 A.3d 692 . Here, by contrast, the State did not mention the objected to testimony of Detective Hinton in its closing argument. Rather, as indicated, the only reference to the statement was by counsel for Mr. Kohler, who relied on the statement to suggest that Mr. Kohler, who is white, was not the purchaser of the drugs. Given that the State did not rely on the evidence in closing argument, and that it was cumulative to other evidence that appellant fired the gun he was holding after he ran after Mr. Kohler, we hold that the admission of Detective Hinton’s testimony was harmless error.

Appellant is entitled to no relief in this regard.

II

Felony Murder A. Sufficiency of the Evidence Appellant contends that the evidence was insufficient to support his conviction for second degree murder because the State failed to prove all of the elements of felony murder. Specifically, appellant argues that “the underlying felony of distribution was complete prior to the shooting,” and therefore, the State failed to prove that the murder occurred during the commission of the felony. The State argues that appellant’s argument takes too narrow a view of the felony murder doctrine. It argues that “the ⁷¹² evidence was legally sufficient to convict [appellant] of second degree felony murder because [appellant] killed [Ms.] Worcester during the ‘res gestae’ of the drug deal.” When reviewing the sufficiency of the evidence to sustain appellant’s convictions, we must determine, after viewing the evidence in the light most favorable to the State, if “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Burlas v. State, 185 Md.App. 559, 568 , 971 A.2d 937 (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)), cert. denied, 410 Md. 166 , 978 A.2d 245 (2009).

If the evidence “ ‘showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt[,]’ then we will affirm the conviction.” Bible v. State, 411 Md. 138, 156 , 982 A.2d 348 (2009) (quoting State v. Stanley, 351 Md. 733, 750 , 720 A.2d 323 (1998)). In Fisher v. State, 367 Md. 218, 262-63 , 786 A.2d 706 (2001), the Court of Appeals held that felony murder in the second degree is a cognizable offense under the common law of this State. The Court explained: “If the felonious conduct, under all of the circumstances, made death a foreseeable consequence, it is reasonable for the law to infer from the commission of the felony under those circumstances the malice that qualifies the homicide as murder.” Id. at 262 , 786 A.2d 706 . The underlying felony must involve danger to life, which is determined by looking to the nature of the crime or “the manner in which it was perpetrated in a given set of circumstances.” Id. at 263 , 786 A.2d 706 .

In Fisher , the Court upheld a second degree felony murder conviction based upon child abuse. Id. In the present case, the underlying felony was distribution of marijuana. Appellant does not argue that this crime is not a sufficient predicate felony to support a second degree felony murder charge.

His challenge focuses on the timing of the killing. ⁷¹³ The Court of Appeals has explained that, under Maryland common law, a felony-murder conviction is appropriate only if the State proves “that the defendant committed the underlying felony and that the death occurred ‘in the perpetration of [that] felony.’ ” Metheny v. State, 359 Md. 576, 623 , 755 A.2d 1088 (2000) (quoting Newton v. State, 280 Md. 260, 269 , 373 A.2d 262 (1977)). Accord Roary v. State, 385 Md. 217, 227 , 867 A.2d 1095 (2005) (“To obtain a conviction for felony-murder, the State is required to prove the underlying felony and that the death occurred during the perpetration of the felony.”); Deese v. State, 367 Md. 293, 305 , 786 A.2d 751 (2001) (to “qualify as a basis for second degree murder,” the “victim’s death, of course, must be ‘caused during the commission of, or attempt to commit,’ the underlying felony”) (quoting Lindsay v. State, 8 Md.App. 100, 104-05 n. 6, 258 A.2d 760 (1969)); State v. Stouffer, 352 Md. 97, 116 , 721 A.2d 207 (1998) (killing must be “ ‘in furtherance of the felonious undertaking’ ”) (quoting Campbell v. State, 293 Md. 438, 446 , 444 A.2d 1034 (1982)). 5 Appellant argues that the murder here did not occur during the commission of the felony. He contends that the crime of distribution requires the State to “prove that the Defendant sold, exchanged, transferred or gave away” marijuana, and that, “[g]iven the evidence presented at trial, the jury could not have concluded anything but that the events surrounding Ms. Worcester’s death occurred after the predicate felony of distribution had been completed.” Appellant asserts that “all three testifying eyewitnesses confirmed that the drugs were ‘transferred’ from Messrs. Griffin and Yates to Mr, Kohler before Mr. Kohler left the house and Mr. Yates followed with the others.” Thus, appellant argues, the State failed to prove ⁷¹⁴ that the death of Ms. Worcester occurred during the perpetration of the distribution.

Several courts have rejected the argument advanced by appellant, that a felony is “complete” when the definitional elements of an offense have been satisfied. In Bissot v. State, 53 Ind. 408, 413-19 (1876), the Supreme Court of Indiana engaged in a detailed discussion of the problem with this argument. In that case, the defendant broke into a drug store intending to rob it, and when he was confronted by the owner with a gun, the defendant shot and killed the owner. Id. at 410-11 .

The court rejected the argument that the homicide was not committed “in the perpetration’ of the burglary” because it did not occur “as soon as the burglarious entry was made.” Id. at 412 . The court noted: “If this construction were to be given to the statute, it would be quite impracticable to ever convict for a murder committed in the perpetration of any of the felonies” set forth by statute. Id. The court explained: If the charge was murder committed “in the perpetration” of a robbery, as soon as the accused had forcibly and feloniously, or by violence or putting in fear, taken from the person of another any article of value, the robbery would be consummated; yet, if immediately afterwards, in the struggle to release himself and escape, he had killed his victim, the degree of the homicide, unconnected with the robbery, would be no higher than manslaughter.

Id. A similar problem would arise, the court stated, if the charge was murder committed in the perpetration of arson. Id. at 413 . As the court explained, accepting appellant’s view would mean that, “as soon as the criminal had wilfully and maliciously set fire to a dwelling-house, the arson would be accomplished, and he could flee; yet it might be that some human being was in the building at the time, and hours afterwards was consumed in the flames.” Id. ⁷¹⁵ The Court held that, “where the homicide is committed within the res gest[a]e of the felony charged, it is committed in the perpetration of’ the felony.

Id. More recently, the Michigan Supreme Court cited Bissot for the proposition that “perpetration” includes not only the definitional elements of the predicate felony, but also includes those acts that are required to complete the felony—such as those that occur after the commission of the predicate felony while the felon is attempting to escape. To hold otherwise would make it “quite impracticable to ever convict for a murder committed in the perpetration of any of the [enumerated felonies].” People v. Gillis, 474 Mich. 105 , 712 N.W.2d 419, 426 (2006) (quoting Eddy v. State, 496 N.E.2d 24, 28 (Ind.1986), quoting in turn Bissot, 53 Ind. at 412 ), cert. denied, 550 U.S. 920 , 127 S.Ct. 2132 , 167 L.Ed.2d 868 (2007). The court explained that it adopted “the res gestae principle, which holds that a murder committed during the unbroken chain of events surrounding the predicate felony is committed ‘in the perpetration of that felony.” 6 Id. at 429.

In People v. Taylor, 112 Cal.App.3d 348 , 169 Cal.Rptr. 290 (1980), the Court of Appeal of California for the Fifth Appellate District considered this argument in the context of the felony of drug distribution. Mr. Taylor had been drinking with the victim and others, and he gave the victim heroin. Id. at 293. The victim died several hours later.

Id. at 294. Mr. Taylor was convicted of second degree felony murder, with furnishing heroin as the underlying felony. Id. at 293. ⁷¹⁶ Mr. Taylor argued, as appellant does here, that he could not “be convicted of second degree felony murder because the act of furnishing heroin was completed when he handed the heroin to [the victim] and thus the homicide was not committed in the perpetration of the felony.” Id. at 295. The court rejected that argument, holding that “[i]t is sufficient under the felony-murder rule that the felony and the homicide are part of one continuous transaction.” Id.

The court continued: “There is no requirement that the homicide occur while committing or while engaged in the felony, or that the killing be part of the felony. It is sufficient that the homicide be related to the felony and have resulted as a natural and probable consequence thereof.” Id. We agree that a killing committed after the definitional elements of the predicate felony have been completed can qualify as felony murder. That appellant had distributed the drugs to Mr. Kohler does not automatically preclude a finding of felony murder.

The question then is what test should be applied to determine when a killing that follows a felony constitutes felony murder. This Court has recognized the requirement of a causal connection between the homicide and the felony, stating: “ ‘The killing must have had an intimate relation and close connection with the felony, and not be separate, distinct, and independent from it.... The death must have occurred as a result or outcome of the attempt to commit the felony.’ ” Jackson v. State, 87 Md.App.