Blair v. State

747 A.2d 702

130 Md. App. 571

Timothy Edward BLAIR v. STATE of Maryland.

No. 5645, Sept. Term, 1998.

Court of Special Appeals of Maryland.

March 6, 2000.

Rebecca Buhner (Student Attorney under Rule 16) (Stephen E. Harris, Public Defender and Martha Weisheit, Assistant Public Defender, on the brief), Baltimore, for Appellant.

Stephen L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Sandra A. O'Connor, State's Attorney for Baltimore County, Towson, on the brief.), for appellee.

Argued before MURPHY, C.J., and HOLLANDER and ADKINS, JJ HOLLANDER, Judge.

This case arises out of the murder of Edward Fissell, who was shot and killed outside his home in Baltimore County on January 27, 1997. Timothy Blair, appellant, John Fleig, and James Fitzpatrick were all charged with the murder. Pursuant to a plea agreement, Fleig pleaded guilty on October 15, 1997, to the charge of accessory after the murder, and he agreed to testify against Blair and Fitzpatrick. Beginning on September 28, 1998, appellant was tried before a jury in the Circuit Court for Baltimore County.¹ Blair was acquitted of first degree murder, but he was convicted of second degree murder, use of a handgun in the commission of a felony, and use of a handgun in the commission of a crime of violence. He was subsequently sentenced to thirty years of incarceration for the murder conviction and to a consecutive eight year term for the felony handgun offense. The other handgun offense merged for sentencing purposes.

On appeal, all of the issues raised by appellant relate to Fleig and Fleig's attorney. Blair presents three questions for our consideration, which we have rephrased and reordered:

I. Did the court err by permitting Fleig's lawyer to testify that Fleig's statements to him during client interviews were consistent with Fleig's subsequent statements to the police and with his testimony at Fitzpatrick's trial?

II. Did the court err by permitting the State to rehabilitate Fleig's testimony by introducing the entire transcript of his interview with the State?

III. When Fleig's attorney testified, did the court err in refusing to permit defense counsel to review, for purposes of cross-examination, the notes that Fleig's lawyer had taken during interviews of his client?

For the reasons discussed below, we shall vacate the convictions and remand for further proceedings.

FACTUAL BACKGROUND

At the time of the killing, Fissell was living in a trailer located on land that abuts the Back River in Edgemere. A small home is also situated on the property (collectively, the "Shore Property"). The Shore Property served as a summer retreat for members of an extended family that included Fissell, Blair, and Fitzpatrick. Blair's father and Fitpatrick's father are half brothers; both were Fissell's stepbrothers. Blair and Fitzpatrick referred to Fissell as "Uncle Eddie." Fissell lived at the Shore Property year-round, maintaining it and supporting himself through various odd jobs.

Animosity existed between Fissell and several of the younger adult members of the family, including appellant, who was about 28 years old at the time of trial. Indeed, Blair and Fissell argued on a number of occasions. Moreover, evidence was presented at trial that some of the young adult family members had harassed Fissell and vandalized the Shore Property. Consequently, the family's older members instituted a rule that Blair, Fitzpatrick, and the other younger adult family members could not visit the Shore Property without the older adults. Despite this prohibition, Blair and Fitzpatrick went to the Shore Property on the morning of the murder.

Mahlon Thomas lived next door to Fissell. He testified that he was awakened at approximately 1:45 a.m. on January 27, 1997, by his dog's barking. Although it was too dark for him to see what was happening, Thomas stated that he heard a commotion outside. He then heard Fissell shout the name "Timmey," followed by two gunshots. Thomas's son, Forrest, discovered Fissell's body later that morning. According to Dr. David Fowler, a deputy chief medical examiner, Fissell had been shot once in the head and once in the neck. The gunshot wound to the neck revealed stippling, indicating that the gun had been fired at close range. Fissell had also suffered various blunt force contusions and abrasions shortly before his death.

Fleig's testimony is central to the issues raised by appellant. According to Fleig, at approximately 4:30 p.m. on January 26, 1997, he picked Blair up at a house in Dundalk that Blair shared with his cousin, Rose Perry. The two men then drove to Essex to attend a Super Bowl party in the basement den of Fitzpatrick's home. Toward the end of the party, Blair began to argue with Edwin Schwinn, another guest. The argument quickly escalated into a shouting match. Fitzpatrick subsequently "put them out in the yard," where Blair and Schwinn continued to quarrel. Soon thereafter, Blair struck Schwinn in the face, knocking him to the ground, and delivered several more blows.

After the fight, Fleig, Blair, and Fitzpatrick returned to the basement. Blair then left the den for a short time to call Fissell. The following colloquy is relevant:

[FLEIG:] ... Blair came downstairs highly agitated and slammed something down on the table that had the buffet food on it and just started ranting and raving about his uncle.

[PROSECUTOR:] Well, what did he say?

[FLEIG:] That he had gone too far this time and he was fed up with him and he was an MF'r and they began to go on and on about some of the things that they would repeatedly say about their uncle, that he was gay and that he was worthless and he was a drunk and he was crazy and didn't deserve to live anymore.

* * *

[PROSECUTOR:] What did he say that caused him to be so agitated?

[FLEIG: Appellant] said something about that Uncle Eddie had said he couldn't go to the shore anymore and that [appellant] caused too much trouble and that his uncle had spoken to [appellant's] father and [appellant's] father said that if there was any more problems to just call the police because he washed his hands of the whole thing, he was just tired of the fighting between [appellant] and the uncle.... [²]

A discussion ensued between Blair and Fitzpatrick that eventually degenerated into a series of insults about Fissell. Blair was determined to go down to the Shore Property and "get even." According to Fleig, Fitzpatrick and Blair devised a plan whereby Fitzpatrick would bang on the door to Fissell's trailer to lure him outside. Blair would then "hit [Fissell] from behind over the head with a shovel or whatever they could find," driving Fissell to the ground, and Fitzpatrick would take the shovel and decapitate him.

Fleig agreed to drive Blair and Fitzpatrick to the Shore Property. He testified that he did not think either Blair or Fitzpatrick "were all that serious," and he hoped to "diffuse the situation." Blair rode in the front passenger seat with Fitzpatrick immediately behind him.

During the fifteen-minute ride to the Shore Property, Blair and Fitzpatrick discussed their plan. In response to a question from the State as to what comments Fleig added to the discussion, Fleig said:

[T]he conversation was just going on and on, going on, rehashing—it was just rude and it was tacky, it was disgusting, I was sick of hearing about it and I said, look, you know, what if he doesn't die right away. You can't be doing that to that old man. I said you all just getting too disgusting [sic]. You could at least have enough respect for him to shoot him....

Blair then asked Fleig whether he had his gun with him, and began to lean toward the driver's seat. Fleig owned a .380 Davis Semi-Automatic handgun that he ordinarily kept under the driver's seat. Fleig reached down and grabbed the gun and held it out to Blair, who took it and tossed it around. Blair then gave it to Fitzpatrick, who attempted to fire it out of the rear window. When the attempt failed, Fitzpatrick tossed the gun into the front seat and Blair picked it up. Fleig testified that he took the gun from Blair, engaged the clip, returned it to Blair, and Blair then handed the gun to Fitzpatrick, who fired it. The plan to kill Fissell then came to include Fleig's gun.

"About a city block" from the Shore Property, Fleig turned off the car's headlights and backed into a small enclave. According to Fleig, after the three men sat in silence "for a minute," Blair said "let's do it." Blair and Fitzpatrick left the car; Fitzpatrick was holding the gun. Fleig lost sight of the men in the darkness. Several minutes later, Fleig heard gunshots. Blair and Fitzpatrick subsequently returned to the car; Fitzpatrick still had the gun. Fleig testified that Blair "was just really hyper and full of—lot of energy. He said, did you see me, did you see me, I can't believe we did it, we did it...." Fleig then began to drive back to Fitzpatrick's home.

During the return trip, "Blair was just repeating himself, ... then he turned to his cousin, he says did you see me, did you see me, I kicked him, I knocked him down, I hit him." Fleig stated that Fitzpatrick remained quiet. After some coaxing from Blair, Fitzpatrick gave the gun back to Fleig. Fleig claimed that he hid the gun in several places and ultimately threw it off a highway overpass. At some point during the ride, Blair threw his sneakers out of the car for fear that they had "blood or mud or something on them."

Once back at Fitzpatrick's home, Fitzpatrick instructed Blair and Fleig to wash their hands in white wine vinegar in order to remove any gunpowder residue. They also agreed, if questioned, to maintain that they had been together all night and had never left Fitzpatrick's house. At 2:40 a.m., Fleig dropped Blair off at his house in Dundalk and returned home.

Information surrounding the murder quickly surfaced, and the police brought Fleig in for questioning on the...