Davenport v. State

ERROLL D. DAVENPORT v. STATE OF MARYLAND

No. 407

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

August 7, 2019

Circuit Court for Baltimore County

Case No. 03-K-17-002147

UNREPORTED

Graeff, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, 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.

On September 11, 2017, a jury sitting in the Circuit Court for Baltimore County convicted appellant, Erroll D. Davenport, of two counts of attempted first-degree murder, use of a firearm during the commission of a crime of violence, possession of a handgun-carrying concealed or openly, and illegal possession of a firearm. On appeal, appellant raises the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the trial court err in restricting cross-examination of a key State's witness' racial bias, as well as declining to admit extrinsic evidence of his racial bias?

2. Was there sufficient evidence of appellant's agency to support his convictions?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Crime and Investigation

On April 9, 2017, Officer Carlos Moorer, a member of the Baltimore County Police Department, responded to a call regarding a shooting at the Gateway Tavern (the "Gateway") located on Annapolis Road. When he arrived at approximately 2:30 a.m., he saw a man, later identified as Joseph Dudley, lying against a vehicle in the parking lot and bleeding from his chest area. He also observed a second man, Jeremy Miller, who was suffering from a gunshot wound to the hand.

The two men advised that they had been shot by an unknown male suspect. An officer on the scene called a medic, and the victims were transported to the hospital, where they received treatment for their injuries.

After speaking with the Gateway owner, Officer Moorer was able to obtain surveillance footage of the premises. Officer Christopher Sterling, who also was present at the crime scene, reviewed the video footage. He observed an African American male wearing dark clothing approach two white men who appeared to be changing a flat tire. At approximately 2:26 a.m., the man began shooting and then fled the scene, heading southbound on Annapolis Road. The suspect then entered a vehicle and continued driving southbound.

Officer Sterling traced the path that he saw the suspect take to search for potential discarded evidence. At approximately 3:00 a.m., he headed back to the Gateway and observed an African American man and a white woman standing behind a chain link fence across the street from the Gateway. The man was wearing jeans, white tennis shoes with black or blue coloring around the toes, and a black coat.

Officer Sterling approached, and the man, later identified as appellant, said that he had come to the Gateway to get liquor. Officer Sterling thought this was suspicious because it was common knowledge that all bars were closed by 3:00 a.m. In response to Officer Sterling's question, appellant said that he lived at 4015 McDowell Lane. Appellant advised that he had walked from that address to the Gateway, and he owned two vehicles, a silver Nissan 350Z and a gold Honda Odyssey van.

After speaking with appellant, Officer Sterling reviewed the Gateway footage again. He determined that the clothing worn by the suspect in the video was similar to that worn by appellant.¹ Appellant was arrested, and Officer Moorer transported him to Baltimore City Police Headquarters.

At approximately 4:00 a.m., Officer Sterling drove to the address appellant provided, 4015 McDowell Lane, which was a one or two minute drive from the Gateway. He saw the silver Nissan parked outside the residence, but he did not see a Honda van.

Officer Sterling inspected the Nissan. The driver's side window was completely down, and the passenger's window was partially open. The hood of the vehicle was warm to the touch, and no morning dew had accumulated on the vehicle.² After running a search of the license plate number, Officer Sterling was able to confirm that the vehicle belonged to appellant.

Before Officer Moorer transported appellant to the Baltimore County Police Headquarters, Officers Lasane and White placed a paper bag over each of appellant's hands to preserve possible gunpowder residue. When Meredith Duley, a Forensic Service Technician with the Baltimore County Police Department, arrived at the Gateway, she removed the bags from appellant's hands and performed a Gunshot Residue ("GSR") test,utilizing a Gunshot Residue Collection Kit. This involved swabbing each of appellant's hands and placing the swabs, which included a control sample, into three separate containers. She then placed the containers in an envelope and sealed it with evidence tape. The envelope was sent to RJ Lee Group, a private forensic laboratory, for testing.

At police headquarters, Detectives Ronald Long and Danielle Barber interviewed appellant. At the time, appellant was wearing a black and grey coat with a dark colored cap on his head, as well as black and white Jordan shoes.

After reading appellant his Miranda rights and obtaining a signed waiver of those rights,³ Detective Long began questioning appellant about the incident. Appellant stated that, on April 8, he began drinking at approximately 7:00 p.m., and he went to the Gateway to "get some beers and some liquor."⁴ He then left the Gateway to get a carwash on West Patapsco and pick up Brenda, his on-again-off-again girlfriend, in Canton. He drove Brenda to the Gateway, where the two drank and ate buffalo wings.

As they were leaving the Gateway, Brenda and appellant saw a man who said that he was changing his tire. When the man asked appellant for a cigarette, appellant responded that he did not have one. Although appellant did not remember what he said to the man, he remembered that the conversation was not contentious.

Appellant and Brenda left the Gateway in appellant's Nissan 350Z, a grey sports car, and went to his apartment on McDowell Lane. Appellant and Brenda left the apartment approximately 30 minutes later and walked toward the Gateway to "see if [they] [could] get something else from down there."

During the interview with Detective Long, appellant stated that he did not recall speaking to the men he had confronted earlier in the parking lot of the Gateway, and he did not have a gun that night. He stated that he did not keep any firearms in his house or in his car.⁵

Following the interview, police executed search warrants of appellant's car and apartment. In the apartment, they recovered a blue baseball cap and black sunglasses on appellant's bed. Additionally, they retrieved a box of .32 caliber ammunition from a security box in the back of another room, where appellant's cousin was staying.

II.Trial

Trial began on January 3, 2018. Officer Moorer testified first. During his testimony, the State introduced footage from his bodycam, which captured, among other things, appellant's arrest. Officer Moorer made an in-court identification of appellant as the person who was arrested.

Mr. Miller testified that, on the night of the shooting, he and his friend, Mr. Dudley, had been drinking at the Highland Inn bar. While there, Mr. Miller consumed approximately 14 beers and Mr. Dudley had a "couple drinks." After leaving the bar, they were driving in Mr. Dudley's car, and the car developed a flat tire. Although the Gateway was closed, they decided it was safer to stop in the Gateway parking lot rather than stop on the side of the road.

Mr. Dudley retrieved the tire jack and tools from the car, and Mr. Miller began to jack up the vehicle. At that point, a man and his female companion walked up to Mr. Dudley and Mr. Miller. Mr. Miller had seen the woman before, but he did not know her name. He had never seen the man.

The man began saying "some really bad things" to Mr. Miller and Mr. Dudley, and at some point, Mr. Dudley pointed his middle finger at the man.⁶ The three got into a heated argument, which was subsequently broken up by James, a friend of Mr. Miller's, who had been standing outside the Gateway. No physical fight broke out during the exchange.

The man entered his car and drove away with the woman who had accompanied him out of the bar. Mr. Miller went back to work on the tire. Mr. Miller testified that, several minutes later, the same man returned to the Gateway parking lot and told him andMr. Dudley that he was going to blow their "rooftops off or something," which Mr. Miller later learned meant he was going to shoot them in the head. When Mr. Miller and Mr. Dudley saw that the man had drawn a gun from his right pocket, they lunged forward to disarm him. The man shot Mr. Dudley in the chest. Mr. Miller "dropped down" near the passenger side of the car, placed his hands in front of his face, and was shot in the hand. He then played dead. As Mr. Dudley was running around the vehicle to avoid the suspect, Mr. Miller heard another gunshot. After the shooting, staff from the Gateway came out and called the police.

During Mr. Miller's testimony, the State played a portion of the surveillance footage that captured the shooting in the parking lot.⁷ The video showed that Mr. Miller and Mr. Dudley arrived at the parking lot at approximately 2:08 a.m., and approximately one minute later, a man wearing a blue baseball cap, jeans, a grey and black coat, and black and white shoes, exited the Gateway.⁸ The victims and the suspect appeared to get in an argument. At approximately 2:12 a.m., while the three men were arguing, James approached the three individuals. Shortly thereafter, the suspect and the woman drove away in a silver vehicle.

The video showed that approximately 12 minutes later, at 2:24 a.m., a...