Yates v. State

BARBERA, J. A stray bullet, fired at a fleeing drug buyer who attempted to trick a dealer by paying with fake bills, killed an innocent bystander. Petitioner, Warren Jerome Yates, was convicted ¹¹⁶ by a jury sitting in the Circuit Court for Baltimore County of second-degree felony murder, distribution of marijuana, and related offenses in connection with the death of that bystander and the failed drug transaction that preceded it. The Court of Special Appeals, in a reported opinion, affirmed the judgments of conviction. Yates v. State, 202 Md. App. 700 , 33 A.3d 1071 (2011).

We granted a writ of certiorari to address Petitioner’s claims that the Court of Special Appeals erred in (1) holding that the trial judge’s error in admitting hearsay evidence that Petitioner admitted committing the shooting was harmless; (2) adopting the res gestae theory of second-degree felony murder in affirming that conviction; and (3) declining to exercise plain error review of a jury instruction. For reasons we shall explain, we reject each of Petitioner’s claims of error and affirm. I. On the night of January 7, 2009, Shirley Worcester was standing outside her home in Middle River, Maryland, when she was fatally wounded by a stray gunshot. Moments earlier, Worcester had stepped outside of her home to take two trash bags to the curb.

Worcester’s sister-in law, Linda Fuller, was sitting in a car parked in the driveway talking with Worcester when she heard what sounded like a car backfiring. “I’ve been hit,” Worcester said. Fuller and her husband got out of the vehicle and saw a man, wearing a dark hooded sweatshirt with the hood pulled up over his head, fall in Worcester’s yard around the same time as the gunshots went off. The man ran off between houses, and Worcester’s relatives called 911. Worcester later died from the gunshot wounds.

Police responding to the 911 call stopped a suspicious-looking man, later identified as Petitioner’s co-defendant, Donald Kohler, not far from the scene of the shooting. Police investigation revealed that Kohler, the hooded man who fell in Worcester’s yard and then ran off, was the gunman’s intended ¹¹⁷ target and Worcester was the innocent victim of an errant shot. The shooting was preceded minutes earlier by a drug transaction between Kohler and Petitioner. It developed at trial that Kohler had contacted Christopher Jagd and Justin Wimbush seeking to buy four pounds of marijuana.

The men in turn contacted Petitioner, who agreed to sell Kohler the drugs. Kohler, Petitioner, and their associates met at another individual’s home to conduct the transaction. Petitioner was accompanied by William Griffin. Petitioner presented the marijuana to Kohler and received from him a bag that appeared to contain the purchase money.

Immediately after the exchange, Kohler ran from the house, and Petitioner, after glancing in the bag and learning it contained fake currency, chased after Kohler carrying a handgun. Investigators deduced that, during the chase, Petitioner fired at Kohler, missed him, and the stray bullet struck Worcester, wounding her fatally. Petitioner and Kohler were jointly tried before a jury for their roles in the drug transaction and subsequent shooting. According to several witnesses, Kohler had come to the drug transaction wearing a hooded sweatshirt and all black clothes, similar to the description given to police of the clothing worn by the man who fell in the yard and ran off between buildings after Worcester was shot.

In the vicinity of the shooting, police found two shell casings and a trash bag containing four plastic bags filled with marijuana. Two of the men present for the drug transaction were called as State’s witnesses and connected Petitioner to the shooting. Christopher Jagd initially testified that he did not see Petitioner fire the gun, but later acknowledged that he remembered seeing Petitioner pointing the gun, moving it to the side, and firing. Jagd further testified that Petitioner had told him either that he, Petitioner, “got him,” referring to Kohler, or that he did not know if he had “got him.” William Griffin similarly testified that Petitioner told Griffin he fired the gun but did not know “if he hit anybody or nothing.” In addition, ¹¹⁸ Detective Sekou Hinton testified, over defense objection, that Jagd told him that Petitioner had confessed to the shooting.

Specifically, Jagd told the detective that Petitioner had said to Jagd, “I popped that nigga.” Jagd, however, denied at trial that Petitioner had made that statement to him. The jury returned a verdict on October 9, 2009. The jury acquitted Petitioner of first-degree murder and found him guilty of second-degree felony murder, use of a handgun during the commission of a felony, use of a handgun during the commission of a violent crime, drug trafficking with a firearm, distribution of marijuana, conspiracy to distribute marijuana, and first-degree assault. For sentencing purposes, the trial court merged distribution of marijuana with second-degree felony murder and merged together the two handgun convictions.

For the remaining crimes, the court sentenced Petitioner to a total of ninety-five years’ imprisonment. Petitioner noted an appeal to the Court of Special Appeals. That court, rejecting Petitioner’s multiple claims of reversible error, affirmed the judgments of conviction. Yates, 202 Md. App. at 704 , 33 A.3d 1071 .

Petitioner filed with this Court a writ of certiorari to answer the following questions: 1. Did the Court of Special Appeals err in concluding that the improper admission of hearsay describing Mr. Yates’s alleged confession was harmless error? 2. Did the Court of Special Appeals err in adopting the res gestae theory of second-degree felony murder in sustaining Mr. Yates’s conviction? 3. Did the Court of Special Appeals abuse its discretion in declining to exercise plain error review of a jury instruction solely on the grounds that the instruction was consistent with a Maryland Criminal Pattern Jury Instruction?

We granted the petition, Yates v. State, 425 Md. 396 , 41 A.3d 571 (2012). We answer “no” to each of the questions presented. ¹¹⁹ II. On cross-examination of Detective Hinton by Kohler’s defense counsel, Detective Hinton was asked what Jagd had told him Petitioner had said after the shooting. [Kohler’s Counsel]: And my question to you is this: When you spoke with Mr. Jagd, you discussed with him what it was that he said that [Petitioner] had said to him immediately after the shooting as they were running into the house. I want to call your attention to that discussion that you had with him.

Can you tell us what it is that Mr. Jagd told you that [Petitioner] said to him? [Hinton]: He said, I popped that nigga. The trial court allowed the statement into evidence, over Petitioner’s objection. Petitioner moved for a mistrial, and the trial court denied the motion. The State conceded before the Court of Special Appeals (and repeats that concession here) that Detective Hinton’s testimony, repeating what Jagd told him that Petitioner said to Jagd, was inadmissible hearsay. 1 The State argued, though, that Petitioner was not entitled to reversal of his convictions on that ground because the error was “harmless error.” The Court of Special Appeals agreed that the trial court erred, yet held, by application of the test for “harmless error” set forth in Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976), 2 that the error did not entitle Petitioner to reversal of ¹²⁰ his convictions.

Yates, 202 Md.App. at 708-09, 711 , 33 A.3d 1071 . Petitioner challenges that holding, arguing that the Court of Special Appeals misapplied the Dorsey test by not considering the impact the hearsay evidence had on the jury and by instead improperly examining whether the State relied on the hearsay statement in its closing argument. Additionally, Petitioner contends that the hearsay statement was not cumulative of other evidence offered at trial. The State disagrees, asserting that the Court of Special Appeals correctly held that Petitioner is not entitled to reversal on the basis of the trial court’s evidentiary error.

We agree with the State. “This Court has long approved the proposition that we will not find reversible error on appeal 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 prior testimony of other witnesses.” Grandison v. State, 341 Md. 175, 218-19 , 670 A.2d 398 (1995) (citing Jones v. State, 310 Md. 569, 589 , 530 A.2d 743 (1987), vacated on other grounds, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 , on remand, 314 Md. 111 , 549 A.2d 17 (1988)). In Jones, we considered whether a detective’s testimony about how an attempted murder victim identified Jones as her assailant in an early interview and in a later photo array was inadmissible hearsay and unduly prejudicial. 310 Md. at 588 , 530 A.2d 743 . Given that the victim testified without objection at trial that she identified Jones as the assailant to police, we held: ‘Where competent evidence of a matter is received, no prejudice is sustained where other objected to evidence of the same matter is also received.” Id. ¹²¹ at 588-89, 530 A.2d 743 . See also DeLeon v. State, 407 Md. 16, 30-31 , 962 A.2d 383 (2008) (holding that a defendant waived an objection to what he claimed was irrelevant and highly prejudicial testimony about his purported gang affiliation because “evidence on the same point [was] admitted without objection” elsewhere at trial); Berry v. State, 155 Md.App. 144, 170 , 843 A.2d 93 (holding that the admission of testimony from a detective stating that other defendants were charged alongside Berry, but being tried separately, was not reversible error because “the essential contents of that objectionable testimony’ had been admitted earlier, without objection, through other witnesses), cert. denied, 381 Md. 674 , 851 A.2d 594 (2004).

We agree with our colleagues on the Court of Special Appeals that Detective Hinton’s statement is cumulative of other evidence to which Petitioner did not offer an objection, and we affirm the intermediate appellate court on that ground. 3 Two other witnesses, Jagd and Griffin, testified that Petitioner admitted to them that he fired his gun. Jagd initially testified that he saw the gun when Petitioner ran out the door, but he “didn’t see the shots.” After being reminded of his statement given to police, Jagd agreed that he saw Petitioner “point like he was going to shoot and then move the gun to the side before he fired.” Jagd further testified that Petitioner admitted to him that he fired the gun, but Jagd could not recall exactly what was said during the conversation. The following exchange occurred during cross-examination of Jagd by the co-defendant Kohler: [Kohler’s Counsel]: Do you remember what [Petitioner] said to you? [Jagd]: 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. ¹²² [Kohler’s Counsel]: Are those his exact words? [Jagd]: No, sir. [Kohler’s Counsel]: Do you remember saying to Detective Hinton that [Petitioner] said to you, quote, I popped that nigger? [Jagd]: No, he didn’t say that. [Kohler’s Counsel]: He didn’t say that.

You didn’t say that to Detective Hinton? [Jagd]: I might have. Petitioner did not object to this exchange. Griffin similarly testified, without objection from Petitioner, that Petitioner admitted to firing a gun. Griffin testified, “I asked him what happened with the gunshots.

He said he fired the gun.” Griffin later added, “[Petitioner] just said he don’t know what happened or if he hit anybody or nothing.” Petitioner argues that these additional statements about Petitioner’s firing a gun are not cumulative because they are not of the same quality as the statement relayed by Detective Hinton. Petitioner cites State v. Simms, 420 Md. 705, 739-40 , 25 A.3d 144 (2011), for the proposition that erroneous evidence is not cumulative if it is of a “different quality” than other admitted evidence. As Petitioner sees it, his supposed admission to Jagd that he “popped that nigga” was “far more powerful” than the other statements admitted at trial because the statement was callous and made it seem as if Petitioner had “coolly bragged” about the crime. Petitioner argues that it is not merely the content but also the manner in which that content is delivered that matters to whether the evidence is cumulative.

Petitioner noted in oral argument before this Court that the statement came from the testimony of Detective Hinton, a police officer “who is more likely to be credited by the jury” than the individuals involved in the drug deal with Petitioner. Petitioner maintains that the detective’s hearsay statement bolsters the testimony of both Griffin and Jagd, giving added credence to their version of events. See ¹²³ Newman v. State, 65 Md.App. 85, 98 , 499 A.2d 492 (1985) (holding that improper admission of a prior consistent statement was not harmless error when it bolstered a witness’s testimony), cert. denied, 305 Md. 419 , 504 A.2d 1152 (1986). A boastful, unambiguous statement that Petitioner “popped” someone, Petitioner contends, would have more of an impact on the jury than Petitioner’s statements that he was unsure if he hit anyone.

We disagree. The substance of Detective Hinton’s statement is that Petitioner told Jagd that he fired a gun and shot someone. Jagd separately testified that Petitioner said “I don’t know if I got him” or “I think I got him,” even while he denied (to some extent) making the provocative statement to Detective Hinton. In addition, Jagd testified that he saw Petitioner run out of the house with a gun and saw Petitioner discharge it.

Griffin testified similarly that Petitioner fired the gun and said to Griffin that he, Petitioner, was not sure if he hit anyone. These statements, although using different words, reach the same conclusion: that Petitioner fired a gun shortly after chasing Kohler out of the house. Petitioner places too great an emphasis on the fact that the challenged hearsay statement came through Detective Hinton. It is conceivable that the jury found Detective Hinton more credible than Jagd and concluded that Detective Hinton correctly recalled what Jagd had said.

But in order to convict Petitioner, the jury would have had to believe not only that Detective Hinton was correct in remembering Jagd’s statement to him, but that Jagd himself was credible in relating to the detective what Petitioner told him. For the jury to believe that the statement was credible it would need to believe both Detective Hinton and Jagd. Ultimately, though, the jury would had to have focused on the credibility of Jagd and Griffin in connection with their statements implicating Petitioner. There were three such statements: two from Jagd (one relayed through Detective Hinton) and one from Griffin.

Jagd testified that Petitioner ran out of the house with a gun and fired in the direction of Kohler. Both Jagd and Griffin testified that Petitioner admitted that he fired his ¹²⁴ gun and thought he hit something or was unsure if he hit something. In the words of Grandison , this testimony establishes the “essential contents” of the hearsay from Jagd that Detective Hinton repeated to the jury. 341 Md. at 219 , 670 A.2d 398 . We agree with the Court of Special Appeals that the admission of the hearsay evidence did not ultimately affect the jury’s verdict given the cumulative nature of the similar statements offered at trial.

We therefore hold that the erroneous admission of the hearsay statement from Detective Hinton does not entitle Petitioner to a new trial.

III

Petitioner argues that the evidence was insufficient to convict him of second-degree felony murder because the State failed to prove all of the elements of the offense, specifically that the killing occurred during the perpetration of the felony. Petitioner argues that the predicate felony — distribution of marijuana — had concluded before the murder was committed and therefore cannot serve as the basis for a felony murder conviction. In that regard, Petitioner takes issue with the Court of Special Appeals’s statement that “a killing that follows a felony constitutes felony murder if the homicide and the felony were parts of one continuous transaction, and they were closely related in time, place, and causal relation.” According to Petitioner, this statement is contrary to Maryland Code (2002, 2012 Repl.Vol.), § 2-201 of the Criminal Law Article, which defines first-degree felony murder as being “committed in the perpetration of or an attempt to perpetrate” certain enumerated felonies. Petitioner views the Court of Special Appeals’s analysis as an adoption of the res gestae theory and a consequent impermissible “significant expansion” of Maryland’s felony murder doctrine. 4 We do not agree. ¹²⁵ We first dispose of Petitioner’s concern with the Court of Special Appeals’s reference to the phrase res gestae in the course of surveying the law in other states on the subject of felony murder, 202 Md.App. at 714-18 , 33 A.3d 1071 , and the Court’s statement of “agree[ment] with this