Dorsey v. State

ANTOINE DORSEY v. STATE OF MARYLAND

ZEBARY PEARSON v. STATE OF MARYLAND

EDWARD ELLIS v. STATE OF MARYLAND

No. 0173

No. 0398

No. 0400

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

October 7, 2015

UNREPORTED

Graeff, Berger, Davis, Arrie W. (Retired, 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 December 5, 2013, following a trial in the Circuit Court for Baltimore City, a jury convicted co-defendants Antoine Dorsey, Zebray Pearson, and Edward Ellis, appellants, of second degree murder and related handgun offenses.¹ In this consolidated appeal, appellants present six questions for our review,² which we have combined and rephrased, as follows:

1. Did the circuit court err in declining to sever for trial the cases against Ellis and Pearson from the case against Dorsey?

2. Did the circuit court err in admitting against Ellis and Pearson the hearsay statement by Andrew Neely concerning what Dorsey told him regarding the crime?

3. Did the circuit court improperly restrict the cross-examination of Tyrone King?

4. Did the circuit court err in declining to give jury instructions regarding defense of others and hot-blooded provocation?

5. Should Ellis' sentence, as set forth in the docket entries, be vacated because it is inconsistent with the sentence pronounced by the judge in open court?

6. Did the court err in failing to merge Dorsey's sentence for wearing, carrying, or transporting a handgun into his sentence for use of a handgun in the commission of a crime of violence?

For the reasons set forth below, we answer the first question in the affirmative and shall reverse the judgments against Pearson and Ellis. We shall affirm the judgment of the circuit court regarding Dorsey, with the exception that we shall vacate Dorsey's sentence for wearing, carrying, or transporting a firearm.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 2:29 a.m. on July 28, 2012, Baltimore City police responded to 1418 Poplar Grove Street, following a call for a shooting. They found the victim, Jermaine Blue (a.k.a. "Duke"), deceased. Appellants were charged with his murder.

Shirley Omisore, who lived with her mother, Martha Fair, and her nephew, Tyrone King, at 1418 Poplar Grove, testified that she and Ms. Fair were watching television on July 28. Mr. King was out in front of the house on the porch with his friends, including Dorsey (a.k.a. "Antoine"), Ellis (a.k.a. "Eddie"), Pearson (a.k.a. "Stink"), Mr. Blue, Keyana Thomas, Stacia Livingston, Brandon Manuel, and a few others. At some point, the group became loud, so Ms. Omisore went to the front door and told them to keep it down or they would have to leave. From what Ms. Omisore heard, Mr. Blue, Dorsey, Ellis, and Pearson were arguing about Mr. Blue's dog, "Gotti." After she told them to quiet down, Mr. Blue said "okay" and told the others to be respectful of her home. Ms. Omisore described Mr. Blue as respectful toward her, her home, and her family, but she stated that he was "very outspoken," "could be aggressive if he wanted to be," was "rude and obnoxious" and "confrontational," and those behaviors became more pronounced when he was drinking. Ms. Omisore thought that the group was drinking that night.

Ms. Omisore went back inside the house, and approximately ten minutes later, she heard three gunshots. Two girls, Stacia Livingston and Keyana Thomas, and a young male came running through the front door. Ms. Omisore went to the door and saw Mr. Blue lying at the bottom of the stairs. Approximately five minutes later, Mr. King came into the house and called the police.

Yvette Dixon, Mr. Blue's mother, testified that Mr. Blue could be aggressive when he was drinking "if somebody is picking with him or get[s] him started." She stated that Mr. Blue had been drinking and doing drugs on the night that he was killed.

Mr. King testified that, on the evening of July 28, Mr. Blue was at 1418 Poplar Grove with his dog. At approximately 2:30 a.m., Mr. King was at the residence of his friend Michael Smith (a.k.a. "China"), directly across the street from his residence, and he heard what sounded like gunshots. Through a partially open door at China's residence, Mr. King saw Pearson, Ellis, and Dorsey at the bottom of the stairs at 1418 Poplar Grove. Dorsey was standing over Mr. Blue holding a gun. Pearson and Ellis were "assaulting" Mr. Blue, and Dorsey "was just shooting him." Mr. King saw "flashes of light" and heard loud noises as Dorsey stood over Mr. Blue. Mr. King thought that he heard six gunshots before he went to the door, and an additional four gunshots after he got to the door. There were no individuals on the sidewalk outside of 1418 Poplar Grove other than Mr. Blue, Pearson, Ellis, and Dorsey.

After the shooting stopped and Dorsey, Ellis, and Pearson ran away, Mr. King went to Mr. Blue, who was gasping for air. Mr. King told Mr. Blue to "try holding on," and he called for an ambulance. Mr. King made two 911 calls after the shooting, both of whichwere played for the jury. In the first call, Mr. King stated that someone had just been shot, and when asked by the operator if he had seen the shooter, Mr. King responded: "No, man, he's just losing blood, man . . . . I ain't going over there." In the second call, Mr. King stated that he heard gunshots. When asked if he wanted to leave his name and number, Mr. King responded: "No." Both phone calls were made from inside his house at 1418 Poplar Grove. Mr. King remained with Mr. Blue until responders arrived. When Mr. King saw the police arrive, he went inside his house, but then he left. He stated that he did not stay on the scene to talk to the police because he was scared.

Mr. King did not talk to the police until September 12, 2012, when he voluntarily went to the police department and gave a tape-recorded statement.³ He selected appellants' photographs from several photo-arrays, and he identified Dorsey as the shooter and Pearson and Ellis as the individuals he saw hitting Mr. Blue.

On cross-examination, Mr. King testified that, on July 28, he went to 1418 Poplar Grove after work. At some point, Mr. King left to go to China's house to purchase marijuana.

Mr. King's testimony regarding Mr. Blue's whereabouts when he left the house varied. At one point, he testified that Mr. Blue already had gone, and Mr. King did not see him return. At other times, he testified that Mr. Blue was still at the house when he left.

Ms. Fair testified that, during the morning hours of July 28, 2012, she and Ms. Omisore were watching television at 1418 Poplar Grove. Mr. King, her grandson, was across the street. At some point, Mr. King and Mr. Blue were out on the front porch "making a whole lot of noise" talking with "some other boys," and Ms. Fair asked Ms. Omisore to ask them to be quiet. After Ms. Omisore did so, the people on the porch quieted down. Approximately ten minutes later, Ms. Fair heard what she thought were five gunshots. Two girls then ran into the house from the porch. Approximately 15 minutes later, Mr. King came back into the house and called police.

Ms. Fair testified that Mr. Blue was drinking beer on July 28, but to her knowledge, he was not drunk. She stated that, when Mr. Blue drank, he had "a different attitude," and if someone started a fight with him, he would fight back. In a prior tape-recorded statement to police, Ms. Fair stated that Mr. Blue would get "violent like" when he drank and "wanted to fight."

Mr. Manuel testified that, on July 28, he was sitting on the porch at 1418 Poplar Grove drinking and looking at his phone. At some point, he heard Mr. Blue arguing or "loud talk[ing]" and "heard a lot of commotion from him." He did not know with whom Mr. Blue was arguing. Mr. Manuel thought Mr. Blue was intoxicated, although he could not recall seeing him drink alcohol. Mr. Blue left, stating: "I'll be back," in what Mr. Manuel characterized as a violent tone. When Mr. Blue returned ten or fifteen minutes later, he had his "face covered and it seemed like he was reaching down" into a pocket. Mr. Manuel went inside the house because he thought there was "a possibility that he hada weapon," and when he saw Mr. Blue's "face covered and [saw him] reach down it just sent a signal that [he] wanted to go inside." A minute later, he heard shots.

Dr. Mary Ripple, Deputy Chief Medical Examiner for the State of Maryland, performed an autopsy on Mr. Blue on July 28, 2012. Mr. Blue suffered 22 gunshot wounds, and Dr. Ripple recovered 12 bullets from his body. He also had scrapes and tears to his skin. None of the individual wounds to Mr. Blue were "rapidly fatal" or "immediately incapacitating," but they all contributed to blood loss and ultimately led to Mr. Blue's death, which Dr. Ripple ruled a homicide. Two of the gunshot wounds had a downward trajectory, but most had an upward trajectory. Five of the gunshot wounds entered Mr. Blue from right to left, and others were left to right. Ten or eleven gunshot wounds entered Mr. Blue from front to back. Dr. Ripple could not tell what position Mr. Blue was in when he was shot, or the position of the people doing the shooting. A few bullets, however, entered from Mr. Blue's back. Dr. Ripple did not observe any evidence that Mr. Blue had been stomped or beaten.

A toxicology screen run on Mr. Blue indicated that he had a blood alcohol level of .11, with a .16 level in his urine. Mr. Blue's urine also tested positive for methylenedioxypyrovalerone, or "bath salt," an illegal stimulant drug similar to amphetamines or speed.

Karen Sullivan, a firearms examiner, examined the bullets recovered from Mr. Blue. She determined that the bullets came from three separate weapons: two bullets from a 9 millimeter handgun; six bullets from a .32 caliber Smith &...