Clark v. State

DAMIEN GARY CLARK v. STATE OF MARYLAND

No. 486

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 29, 2020

Circuit Court for Howard County

Case No. C-13-CR-18-000001

UNREPORTED

Graeff, Nazarian, Woodward, Patrick L. (Senior Judge, Specially Assigned), JJ.

Opinion by Nazarian, 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.

A Christmas Day altercation in a convenience store resulted in the death of one customer and serious injuries to another. After a trial in the Circuit Court for Howard County, a jury convicted Damien Clark of attempted second-degree murder, two counts of second-degree assault, and voluntary manslaughter. On appeal, Mr. Clark contends that the circuit court made numerous errors during his trial. We affirm the convictions.

I. BACKGROUND

On April 18, 2018, Mr. Clark was indicted by a Howard County grand jury and charged with second-degree murder of James Fallin, the attempted second-degree murder of Warner Jackson, and first- and second-degree assault of both Mr. Fallin and Mr. Jackson. A jury trial was held between February 11 and 19, 2019 and the jury convicted Mr. Clark of attempted second-degree murder, two counts of second-degree assault, and voluntary manslaughter.¹ He was acquitted on all remaining counts.

On the evening of December 25, 2017, Mr. Clark encountered Mr. Fallin and Mr. Jackson at the Trellis Center Quick Stop Food Mart.² During the physical altercation that we'll describe below, Mr. Clark pulled out a knife and swung it at Mr. Fallin and Mr. Jackson. Both sustained injuries, but Mr. Fallin's injuries were fatal. The medical examiner, Dr. Melissa Brassell, performed Mr. Fallin's autopsy and testified that his cause of death was homicide. Surveillance footage from the Quick Stop captured the wholesequence of events. Mr. Clark does not dispute that he injured Mr. Jackson and killed Mr. Fallin—the dispute at trial centered instead around whether he acted in self-defense.

Mr. Jackson testified that he and Mr. Fallin had "left the house to go look for marijuana to smoke." According to Mr. Jackson, he and Mr. Fallin approached Mr. Clark outside the Quick Stop and asked Mr. Clark if he "kn[e]w where the grass at?" Mr. Clark responded, "I don't fuck with that shit." After the verbal interaction, Mr. Jackson and Mr. Fallin stood at the window of the Quick Stop and were looking at "[a] female" with "brown skin" and "pink hair" and looked at her "[b]ecause she looked good." Mr. Fallin asked Mr. Clark, "is this your woman?" to which Mr. Clark responded, "yeah, that's my wife. Fuck you asking about my wife for?" Mr. Jackson testified that he turned to Mr. Fallin and said, "bro, come on. Let's go. They trippin'," and at that point, Mr. Clark approached them and said "what n****? What n****? What you say n****?" and then "grabbed [Mr. Jackson] around [his] neck and threw [him] up on the counter." After he was thrown on the counter, Mr. Jackson "hit [Mr. Clark" with "[his] hands." He and Mr. Fallin ran out of the store "[b]ecause [Mr. Clark] was chasing" them.

Jocelyn Bogen, a customer at the Quick Stop, also testified for the State. She was visiting her family in Columbia and went to the Quick Stop to purchase cigarettes for her godmother. She testified that just as she entered the store, "an altercation was popping off":

[THE STATE]: Could you explain to the ladies and gentlemen of the court or ladies and gentlemen of the jury the first time that you noticed anything unusual when you walked in the door you saw or heard?

[MS. BOGEN]: As I was walking in as my daughter basically passed the register I was just behind her is when they startedtussling up against the cash register area.

[THE STATE]: And did you hear any words exchanged between any of those parties—

[MS. BOGEN]: Yeah, he said—

[THE STATE]: —either prior or during the struggle.

[MS. BOGEN]: Yeah, he said, N-word what?

Ms. Bogen identified Mr. Clark as the individual who said those words. She then explained how she perceived the altercation:

[THE STATE]: Ma'am, when you saw that tussle begin, what did you do at that point?

[MS. BOGEN]: I pushed my daughter out of the way and I told them to move.

[THE STATE]: And did you move?

[MS. BOGEN]: Yeah, we moved to the back of the store.

***

[THE STATE]: And what was the purpose of that?

[MS. BOGEN]: To look for an exit because I didn't know what was going on.

[THE STATE]: Now, [were] you able to see from where you are at the back of the store what happened with the altercation from that point forward?

[MS. BOGEN]: I didn't see exactly at that point forward. When I returned to the end of the store, I could turn around and I was able to see they are tussling over by the deli area.

***

[THE STATE]: Okay. Did you see any objects in anyone's hands?

[MS. BOGEN]: No, I did not.

[THE STATE]: [W]ith respect to the tussle itself how long did that go on? And I don't mean specifically, but seconds, minutes, hours, years.

[MS. BOGEN]: Maybe a minute and a half [m]ax.

Ms. Bogen testified that the two victims "ran out the store" while Mr. Clark remained, and she heard Mr. Clark "make a statement to his girlfriend when she was trying to calm him down" that "[h]e stabbed him good." During cross-examination, Ms. Bogen testified that Mr. Clark "appeared to be fighting back" and she thought "he was defending himself."

Mr. Clark's co-worker, William Venson, testified that the day after Christmas, while they were both at work, Mr. Clark described to him the physical altercation that occurred the day before:

[MR. VENSON]: So I wasn't really looking at him, but I was listening to him. And I asked him how was your Christmas and he says, these youngins out here, they got no respect. And I said, yeah, you right. But I didn't know where this was going. And then he said to me, he was like, I had to teach some youngins a lesson. And I said what? What are you talking about? And he says, these youngins out here, man, they got no respect. And excuse my language, but he said, motherfuckers got to learn sometimes.

And I said, what you talking about? I said, you got in a fight or something? And then I looked at him. And when I looked up at him I realized he had two black eyes and a scratch on his nose. And he said yeah, I had to yak them up. I was like, yak them? I said, what do you mean you had to yak somebody up? And he told me—he started to tell me that he was going into a store and some youngins tried to sell him some weed. And he looked at them and said, do I look like the type of motherfucker that smoke weed?

And I said, yeah, but how did you end up stabbing them? And he said that one of them said something to his wife and then he started to choke him and that the other one hit him in the face with a pipe. I said, you got in a fight on Christmas? Who the hell does that? And he said, youngins ain't have no respect and I just started yakking them up.

And then [] he pointed to his wrist and he said I had my little knife right here. The one that Steve gave us. I was, like, the knife that [] Bill gave us for Christmas. And I said, you stabbedsomebody up on the Christmas Day? Are you freaking serious? And he said, yeah. One of them in critical and the other one is locked up.

And I said, so did you talk to the cops? Did you stay there? And he said yeah, I talked to the cops. I said, so what they do? I mean, you did it so obviously they let you go. He said, yeah, they said it was self-defense and let me go.

And I was like, dude, you stabbed somebody on Christmas? I was kind of taken aback for me because—I mean I then seen a lot of violence in my life, but you know, on Christmas day.

Mr. Clark testified on his own behalf. He told the jury that Mr. Fallin and Mr. Jackson "were noisy" and "real rowdy":

[MR. CLARK]: And that's what drew my attention. I was walking straight out the store. And as rowdy and the way that they were acting, I couldn't help that it drew my attention because I had stopped right where the cars—like somewhere in between the cars and watched them. And I watched the one guy. He came out with both hands in his pocket. The other guy had a baseball cap over his head like he could disguise his face with a hoodie over it with it drawn down. Like the same type you would see somebody robbing a bank on TV.

[DEFENSE COUNSEL]: So what, if anything, did you do?

[MR. CLARK]: I saw the other guy come out. I ain't make too much of it because they're not there for me. It's not that. As long as I'm minding my business, you know, they'll leave me alone and I leave them alone. You know, they all the way on the other lot, but [they're] coming that way. The one guy had the black coat on, just kept his hands in his pocket. The whole time both his hands just was in his pocket. And I watched the two guys start walking down a lot.

So as I started walking, they started screaming, weed, weed, weed, weed. Just start screaming it. So when I get by my car I noticed how they split up. I mean two guys walked, come together. You came to the store together. Why y'all splitting up?

He said that he continued to ignore them, but they kept asking him about weed. So he "gotkind of aggressive" and said "Bitch, do the fuck it look like I s[m]oke weed?" He got in his car and "watched [them]" because he "didn't feel too right about them." He felt "[v]ery uncomfortable" and began "worr[ying] about getting [his] wife out the store" because he saw Mr. Jackson and Mr. Fallin "harassing a lady getting out a black car." He got out of his car and began to go in the store, and testified that at that point, he heard Mr. Jackson tell Mr. Fallin "we need to go in there and fuck that n**** up."

Mr. Clark then described from his perspective how the altercation began:

[MR. CLARK]: I watch as the guy in the black jacket started leading the one in fatigues back there. And then once they

...