Bivans v. State

ARNELL BIVANS JR. v. STATE OF MARYLAND

No. 3299

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

July 27, 2020

Circuit Court for Wicomico County

Case No.: C-22-CR-18-000089

UNREPORTED

Graeff, Leahy, Battaglia, Lynne, A. (Senior Judge, Specially Assigned), JJ.

Opinion by Battaglia, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Arnell Bivans, Jr., the Appellant herein, was convicted by a jury in the Circuit Court for Wicomico County of three counts of first-degree assault; three counts of second-degree assault; three counts of reckless endangerment; one count of possession of a regulated firearm after a conviction of a disqualifying crime; one count of illegal possession of a regulated firearm by a felon; one count of the use of a firearm in the commission of a crime of violence; one count of wearing, carrying, or transporting a handgun in a vehicle; and one count of possession of ammunition. The jury acquitted Bivans of two other counts of possession of a controlled-dangerous substance and two additional counts of possession of a controlled-dangerous substance with the intent to distribute. The trial judge also granted Bivans's motion for judgment of acquittal of five counts of conspiracy to commit second degree assault and one count of the use of a firearm during a drug trafficking crime. The presiding judge sentenced Bivans to a total of 60 years' imprisonment for the three first-degree assaults, as well as the one count of possession of a regulated firearm after a conviction of a disqualifying crime, the one count of illegal possession of a regulated firearm by a felon, and the one count of the use of a firearm in the commission of a crime of violence; the remaining counts were merged.

Bivans presents questions related to the admission of a statement of an indicted co-conspirator from an "Application for Search and Seizure Warrant," as well as to whether sentencing him for two firearm convictions, based on the possession of one gun, wasappropriate and to whether in sentencing he was entitled to credit for time served.¹

The indictment, in which Bivans was charged with all of the offenses, related to an affray in Salisbury, Maryland that occurred on December 21, 2017, while he was accompanied by about six other individuals. He was alleged to have brandished a gun at Ambrose and Janel Bishop and fired the weapon.

One of the six individuals in the dust-up, Dae von Wheeless, by separate indictment, also had been charged with various drug-related charges and multiple counts of conspiracy to commit second-degree assault. The State entered nolle prosequis on the drug charges and two of the conspiracy to commit second-degree assault charges. Wheeless entered an Alford plea² to one count of conspiracy to commit second-degree assault, for which he was incarcerated. Wheeless did not testify at Bivans's trial.

Fifteen individuals did testify on behalf of the State. Many of them had witnessed the events which transpired with respect to the Bishops. One of the State's witnesses, Trooper James Brant of the Maryland State Police, an officer who also responded to the scene, testified that he obtained a DNA sample from Bivans, pursuant to a warrant, to compare with DNA recovered from the gun. During his cross-examination, defense counsel sought to undermine the credibility of Ambrose Bishop who, during earlier testimony, said that he "could" and "did" identify Bivans as the man who had pointed a handgun at him. Specifically, counsel for Bivans asked Trooper Brant about an interview with Ambrose Bishop in which Mr. Bishop could not identify the shooter³:

[DEFENSE COUNSEL]: As part of the process for obtaining Mr. Bivans' DNA, did you prepare an application for search and seizure warrant?

[TROOPER BRANT]: Yes, sir.

[DEFENSE COUNSEL]: Okay. And I'm going to show what has been marked for purposes of identification as Defendant's Exhibit Number 1.

[THE STATE]: Objection, Your Honor.

THE COURT: What is it?

[DEFENSE COUNSEL]: It's an application for search and seizure warrant.

THE COURT: What's your objection?

[THE STATE]: Your Honor, the relevance of it.

THE COURT: Overruled.

[THE STATE]: It was a Court Order.

[DEFENSE COUNSEL]: For purposes of identification only, I'm going to show what has been [sic] as Defendant's Exhibit 1. Is that the application for search and seizure warrant that you prepared and submitted?

[TROOPER BRANT]: Yes, sir.

[DEFENSE COUNSEL]: Yes. And can you explain to the jury just very, very briefly what an application for a search and seizure warrant is?

[THE STATE]: Objection, Your Honor.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Okay. Let me direct your attention to page 7 of that application, and can you take a moment to review it?

[TROOPER BRANT]: Okay.

[DEFENSE COUNSEL]: Okay. In page 7, does it describe an interview with law enforcement between Ambrose and law enforcement official?

[THE STATE]: Objection, Your Honor.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Isn't it true that Ambrose could not identify the shooter of the gun other than describe a very general picture of his clothing and his hair?

[THE STATE]: Objection.

THE COURT: Overruled.

[TROOPER BRANT]: And you said this was regarding an interview with Mr. Ambrose Bishop, sir?

[DEFENSE COUNSEL]: Yes, sir.

[THE STATE]: Your Honor, at this point, I'm going to object. The police officer -

[DEFENSE COUNSEL]: It was overruled.

[THE STATE]: Your Honor, if I may be heard?

THE COURT: I overruled - I already overruled it.

[THE STATE]: Your Honor, I believe this may be hearsay information.

THE COURT: Overruled.

[TROOPER BRANT]: According to my knowledge, sir, and even as I'm reading page 7 of the application, I don't see anything captured or outlined regarding an interview with Mr. Ambrose Bishop.

[DEFENSE COUNSEL]: Let's go to page 6 -

[THE STATE]: Your Honor, at this point, I'm going to -

[DEFENSE COUNSEL]: Excuse me.

[THE STATE]: -- object.

THE COURT: Overruled. Counsel, what do you want to ask?

[DEFENSE COUNSEL]: I want to ask whether it states in his application for search warrant that Ambrose could not - Ambrose Bishop could not identify the victim or identify the shooter.

[TROOPER BRANT]: Correct. As captured in the application, it says that the suspect was wearing dark clothing, however, he could not provide any further description.

[DEFENSE COUNSEL]: Correct. And that's Ambrose Bishop could not provide any further description than dark clothing?

[TROOPER BRANT]: Correct, sir.

The State, on redirect examination of Trooper Brant, asked whether the warrant application also recounted statements given by Wheeless. Defense counsel objected:

[THE STATE]: And is there also a statement taken by Dae Von Wheeless?

[DEFENSE COUNSEL]: Objection, Mr. Wheeless.

[THE STATE]: The door has been opened, Your Honor.

THE COURT: Overruled.

[DEFENSE COUNSEL]: Okay.

[TROOPER BRANT]: Yes, ma'am.

[THE STATE]: And what is that statement from Mr. Dae Von Wheeless say?

[TROOPER BRANT]: During the interview of Mr. Dae Von Wheeless, he advised that he observed Arnell Bivans, the shooter, to be in possession of a handgun during the incident that occurred at [the Bishop's home in] Salisbury, Maryland.

In addition, Dae Von Wheeless advised that he observed Arnell Bivans, Jr., throw a gun out of the front passenger's side window of a black 2016 Chevy Malibu that Arnell Bivans, Jr., occupied when leaving the area of [the Bishop's home].

Bivans contends that the trial judge erred by permitting Trooper Brant to testify about the statements Wheeless gave to police which were included in the warrant application. He contends that the statements were impermissible hearsay of a co-conspirator which were not rendered admissible because Bivans's counsel had sought to elicit statements of Ambrose Bishop to police officers to impeach Mr. Bishop. He further avers that his right to confrontation was violated by the introduction of the statements, because Wheeless did not testify at trial and was not subject to cross-examination.

The State, conversely, argues that the issue is not properly before us as Bivans failed to again object to the specific question, after the defense objection had been overruled, which permitted the officer to testify regarding Wheeless's statements. The State further avers that Bivans failed to request a continuing objection after first objecting to the question mentioning Wheeless and/or request a limiting instruction.

The State also contends, however, that the trial judge properly overruled the objection and admitted Wheeless's statements because Bivans "opened the door" after Bivans's counsel asked about Ambrose Bishop's earlier statements contained in the warrant application.

Initially, we observe that counsel for Bivans did preserve the issue regarding the Wheeless statements for our review. Bivans's counsel objected to the initial question the State asked Trooper Brant about Wheeless's statements. Before the trial judge ruled on the objection, the State responded, "[t]he door has been opened, Your Honor." The judge overruled the objection and Trooper Brant testified about the Wheeless statements. Were we to require another immediate objection after the judge ruled would have been futile and unprofessional. See State v. Robertson, 463 Md. 342, 367 (2019); Johnson v. State, 325 Md. 511, 514-15 (1992). We shall, therefore, consider whether admission of the Wheeless statements was error.⁴

The admission of evidence "is committed ordinarily to the sound discretion of the trial judge." Stoddard v. State, 389 Md. 681, 688 (2005) (internal citation omitted). Rule 5-802, however, states that, "[e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible." Simply put, a "judge has no discretion to admit hearsay unless it falls within a...