Black v. State

DEREK BLACK v. STATE OF MARYLAND

No. 958

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

November 23, 2020

Circuit Court for Baltimore City

Case No.: 117296009

UNREPORTED

Nazarian, Wells, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

Opinion by Wells, 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.

Appellant, Derek Black, was indicted in the Circuit Court for Baltimore City and charged with first-degree murder and use of a firearm in the commission of a crime of violence. After a jury convicted him on both charges, the court sentenced him to life imprisonment for first-degree murder, with all but 45 years suspended, and a concurrent sentence of 20 years for use of a firearm, to be followed by five years' supervised probation. Appellant timely appealed and asks us to address the following questions:

1. Did the trial court err in admitting into evidence hearsay contained in the video recording of [State's witness Elijah] Strickland's police interview?

2. Did the prosecution make an improper argument in its closing argument and was it ineffective assistance of counsel for the defense attorney not to have objected to this improper argument?

3. Was the evidence insufficient to support Appellant's convictions?

For the following reasons, we shall affirm.

BACKGROUND

This case concerns the shooting death of Greg Manuel on June 3, 2017, in the 1700 block of Rutland Avenue in Baltimore City. Manuel died of five gunshot wounds, one of which was immediately fatal, and the manner of death was ruled a homicide. As we will explain, eyewitnesses testified that appellant, Derek Black, shot Manuel at close range following an argument "over a couple dollars in a dice game."

The State's case relied on testimonial evidence from two eyewitnesses: Elijah Strickland, a friend to both Manuel and Black, and Eroctonya Easter, Manuel's mother. Both witnesses confirmed that several individuals, including Manuel and Black, were shooting dice on the night in question.

During the game, accusations of cheating passed between Black and Manuel. Strickland confirmed that he intervened and broke up the argument, at least momentarily, by taking the dice and throwing them away. However, an unidentified individual produced another set of dice and the game resumed over Strickland's objection.

As the game continued, so too did the argument between the young men, progressing from accusations to physical violence. Manuel struck the first blow, striking Black with a thin stick, later described as being akin to a switch. In response, and as explained later by Easter, Black went to his car, retrieved a gun, and "started shooting." Both Strickland and Easter testified at trial that they saw Black shoot Manuel. Black then fled the scene in a white minivan.

Both Strickland and Easter subsequently identified Black as the shooter in photo arrays prepared by the police. And, as part of the identification, both witnesses provided a brief written statement next to Black's photo. Strickland wrote: "He shot my home boy, Greg [Manuel], on Rutland Avenue." Easter wrote: "I saw Derek [Black] kill my son, Greg Manuel."

The police collected several .9 mm cartridge casings and a .9 mm bullet from the crime scene. The State's firearms expert, Christopher Faber, testified that the cartridge casings were all fired from the same unknown firearm.

We shall include additional details in the following discussion.

DISCUSSION

I.

Black first contends that the trial court erred by allowing the State to play Strickland's September 20, 2017 statement to the police on the ground that the statement was hearsay and inadmissible, even under the exception for prior consistent statements. The State responds that the statements at issue were admissible under several theories, including as: (a) a prior inconsistent statement; (b) a prior consistent statement because there was no motive to fabricate; (c) a statement of identification; and, (d) rehabilitative evidence. The State also asserts that any error was harmless beyond a reasonable doubt.

By way of background, Strickland's testimonial account of the shooting was somewhat equivocal. Notably, he not only testified that, "I seen it, but I didn't see," but also, in response to a question from the prosecutor asking, "who shot Greg Manuel," Strickland replied, "I guess, Derek."

Strickland also denied that he told a police detective that he saw an argument between Black and Manuel. When the State asked Strickland if he broke up an argument, the trial court sustained Black's counsel's objection.

In response, at a bench conference, the State then offered that Strickland's testimony was inconsistent with a prior statement he gave to police. The court responded that a proper foundation had not been laid for admission of the extrajudicial statement under the prior inconsistent exception for hearsay. After the State then briefly played a video portion of that recorded statement in court, without any sound, Strickland agreed that he was interviewed by police and told them that "Derek had shot Greg." Strickland also agreedthat he had been inconsistent about his location at the time of the shooting. Although he testified at trial that he was across the street, Strickland confirmed that he told the police that he was only five feet away when the shooting happened.

Another inconsistency was brought out on cross-examination. When defense counsel asked whether Strickland actually saw the shooting, he said that he was looking at his cell phone when he heard shots fired. He also denied that the victim's mother, Eroctonya Easter, brought him to the police station and told him to speak to the police.

The next day at trial, the State sought to admit Strickland's redacted September 20, 2017 statement. The State called Detective Steven McDonnell, who confirmed that he interviewed Strickland in an interview room at the police station, along with Detective Sergeant Vallair.¹

It was at this point that the State sought to admit Strickland's prior statement. After defense counsel objected, a bench conference ensued, and Black's counsel argued that the recording was hearsay because it was being offered as truth of the matter asserted. Defense counsel also argued that Strickland's testimony was not inconsistent with the statement, that any inconsistencies were addressed by the State during Strickland's trial testimony, and that the statement was consistent with his testimony. Counsel also asserted that her client would be prejudiced because she would not be able to cross-examine Strickland about any differences between the recorded statement and his trial testimony.²

The State responded that Black was not prejudiced because he had the opportunity to cross-examine Strickland about the recorded statement, which had been provided in pre-trial discovery. On the merits, the State argued that the statement amounted to a prior consistent statement that was admissible under that exception in order to counter any suggestion by Black that the victim's mother convinced Strickland to provide a statement to police. The court ruled:

Okay. Well, I find that there are aspects of this that would be admissible as a prior consistent statement. And there are also aspects of it that, to clarify - not to clarify, but to - it's a recordation of a statement made by a witness who was subject to cross-examination by the Defense, available for cross-examination by the Defense. And it's relevant, above and beyond all of that, inasmuch as it's - there was some, how should I say again, equivocation by that particular witness, Mr. Strickland, when he testified on the stand, inasmuch as he at various times would say, I think it was Mr. Black, or I believe it was Mr. Black, about coming out and identifying as such. And, therefore, his earlier identification of Mr. Black and the circumstances of that identification are relevant here and do neatly fit withincertain hearsay exceptions that are allowed by the rules. And so I will overrule the objection.³

Strickland's redacted video-recorded statement was then played for the jury. As noted, in that statement Strickland informed the police that the shooting followed an argument between Black and Manuel during the dice game. He also confirmed that Manuel hit Black with a stick, and then Black shot Manuel:

Then Derek somehow - I don't know if [he] had the gun on him or what. But somehow you just hear pop, pop, pop, pop. (Indiscernible) what the fuck. (Indiscernible) now everybody's scattered around trying to figure out where to go. So then he scurried off in his car. He jumped in his car and left.

Under the Maryland Rules, hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Md. Rule 5-801(c). A "statement" is "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." Md. Rule 5-801(a). A "declarant" is "a person who makes a statement." Md. Rule 5-801(b). Further, "[e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible." Md. Rule 5-802. Although review of the admission of evidence by a circuit court is usually considered under the abuse of discretion standard, "a circuit court has no discretion to admit hearsayin the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo." Gordon v. State, 431 Md. 527, 536 (2013) (quoting Bernadyn v. State, 390 Md. 1, 7-8 (2005)).

Based on our reading of the arguments at trial and the trial court's ruling, and as clarified by the arguments by both parties on appeal, three exceptions to the...