Duncan v. State

DERIUS DUNCAN v. STATE OF MARYLAND

No. 640

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

May 14, 2020

Circuit Court for Baltimore County

Case No. 03-K-12-004851

UNREPORTED

Meredith, Graeff, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Meredith, 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.

Prior to the events that are the focus of this case, Derius Duncan, appellant, had been convicted of another offense for which he received a suspended sentence subject to a period of probation. Consequently, as of March 2011, Duncan was subject to reimposition of nearly twenty years of incarceration for a violation of the conditions of his probation. On March 22, 2011, Duncan was arrested and charged with prohibited possession of a firearm that was found in the glove compartment of an unlicensed taxi cab in which Duncan was a passenger. The "hack" was being driven by Ronald Givens. Duncan was held without bail pending a hearing on charges that he had violated his probation. Givens was also initially arrested and charged with possession, but the State later dropped all charges against Givens and subpoenaed him to testify against Duncan at Duncan's probation hearing. After Givens was found dead in front of his house a few weeks before the scheduled probation hearing, Duncan was charged with several offenses related to Givens's death. The first trial ended in convictions which we reversed in Butler & Duncan v. State, 231 Md. App. 533 (2017).

Upon remand, Duncan was acquitted of first degree murder, but convicted of second degree murder, conspiracy to commit murder, intimidating a witness, and use of a firearm in the commission of a crime of violence. Duncan noted this appeal.

QUESTIONS PRESENTED

Duncan presents two questions for our review:

1. Whether the evidence is insufficient to support Mr. Duncan's conviction for second degree murder?

2. Whether the trial court erroneously instructed the jury that Mr. Duncan was charged with conspiracy to commit witness intimidation when, in fact, he was not charged with that offense?

For the reasons set forth herein, we shall affirm the judgments of the Circuit Court for Baltimore County.

FACTUAL AND PROCEDURAL BACKGROUND

On March 22, 2011, Ronald Givens and Derius Duncan were each placed under arrest and charged with possession of marijuana and possession of a handgun that was found in the glove compartment of Givens's car. Because Duncan was on probation at the time of his arrest, the circuit court held him without bail pending a violation of probation hearing, which was scheduled to take place on October 26, 2011. If Duncan was found guilty of violating the conditions of his probation, Duncan faced a potential period of incarceration of 19 years and 364 days. The State dropped the charges against Givens and served him with a subpoena to testify for the State at Duncan's violation of probation hearing on October 26, 2011.

The Death of Ronald Givens

On the morning of October 4, 2011, Givens's next-door neighbor—Annette Isaac—saw Givens lying on the front lawn of his home, and she called out to him. He was unresponsive. She searched for a pulse, and feeling none, asked her daughters to call 9-1-1.

Patrol officers from the Woodlawn Precinct of the Baltimore County Police Department were the first to arrive on the scene. They contacted the Baltimore County Police Department's Homicide Division. Detective Brian Wolf was dispatched to the scene and assigned to be the lead detective in the investigation of Givens's death.

Detective Wolf's Investigation

While at the scene, Detective Wolf observed a bullet wound behind Givens's left ear and a bullet wound below Givens's belly button. Detective Wolf and Baltimore County Crime Scene Technician Jenny Earnest attempted to locate physical evidence that Givens had been shot, but no handgun, bullets, shell casings, or any other ballistics-related materials were recovered from the scene. Detective Wolf, however, recovered several small baggies, which he believed contained controlled dangerous substances, near Givens's body.

From inside Givens's home, Detective Wolf recovered additional evidence of drug use, such as paraphernalia used for smoking controlled dangerous substances. Detective Wolf later testified at Duncan's trial that he did not seek to have the items forensically examined because he believed that the drugs played no part in Givens's death.

While he was at the scene of the crime, Detective Wolf also conducted an interview of Givens's mother, and she provided him the subpoena commanding Givens to appear as a witness in the Circuit Court for Baltimore City at Duncan's violation of probation hearing on October 26, 2011. A stipulation was later received into evidence at Duncan's trial that, at the time of Givens's death, "Duncan was on probation for a felony offense, and if convicted of a violation of probation, was subject to a potential period of incarceration of up to 19 years and 364 days."

Detective Wolf learned that Duncan was being held without bail at a detention center, awaiting the violation of probation hearing. A search of Duncan's cell produced documents containing several names, addresses, and telephone numbers. Detective Wolf also subpoenaed the records of Duncan's telephone calls while incarcerated, and the detective obtained a certified call log containing information about the person who made each call, the number that was called, and the date that the call was made.

Detective Wolf listened to over 30 hours of Duncan's jail calls. Detective Wolf testified at Duncan's trial that he was able to discern the voices of Clifford Butler, Jr., and Keyon Beads on the jail calls based upon lengthy interviews that the detective had conducted of those suspected accomplices during his investigation. Detective Wolf's investigation led him to believe that Duncan, Butler, and Beads were his prime suspects in the shooting death of Givens.

The State's Case-in-Chief on Remand

At Duncan's trial after remand, the State's case-in-chief relied on circumstantial evidence to support its theory that Duncan induced accomplices to kill Givens to prevent him from testifying at the probation hearing scheduled for October 26, 2011. In its opening statement, the State asserted that Duncan conspired with Beads and Butler, via jail calls and correspondence, to kill Givens. According to the prosecutor, in the recordings of Duncan's jail calls, the jury would hear "slang" used by the parties that was a "thinly-veiled code" about Duncan's plan to kill Givens.

The State called five witnesses at trial: Baltimore County Police Department Officer John Potter; Ronald Givens's neighbor Annette Patricia Isaac; Baltimore County Police Department Crime Scene Technician Jenny Earnest; Baltimore County Police Department Detective Brian Wolf; and Keyon Beads. No expert witness was called to testify about the cause of Givens's death, and the report of Givens's autopsy was not offered into evidence.

Ms. Isaac, who was the neighbor who found Givens's body on the morning of October 4, 2011, testified that, during the preceding evening, she heard a series of five alarming and very loud sounds that, she said, sounded like firecrackers.

Ms. Earnest attended Givens's autopsy. She testified that the medical examiner who performed the autopsy handed her four individual packages that each contained a bullet that had been removed from Givens's body during the autopsy. The four bullets were admitted into evidence without objection.

Detective Wolf testified that, as a homicide detective, he was familiar with the appearance of bullet injuries, and that he observed two bullet injuries to Givens's body on October 4, 2011: a bullet wound behind the left ear, and a bullet wound below the belly button. He also testified that he, too, attended Givens's autopsy and observed a total of four bullet wounds at that time, located in the areas of Givens's head, torso, and shoulder.

The State played for the jury recordings of 19 of Duncan's jail calls that Detective Wolf believed were pertinent to the death of Givens. A disc containing recordings of the 19 jail calls that were played for the jury was admitted into evidence.

The Defense's Motion for Judgment of Acquittal

At the close of the State's case-in-chief, counsel for Duncan moved for judgment of acquittal, arguing that the State had not established the cause of death:

[COUNSEL FOR DUNCAN]: Your Honor, on behalf of Mr. Duncan, I would make a Motion for Judgment of Acquittal, Your Honor, to each and every count. Starting with Count 1, Your Honor, murder in the first degree, we've heard absolutely no testimony. I understand the light the Court will view this in, but I'm gonna make this abundantly clear. We've heard no testimony from any medical examiner as to the cause of death. We haven't had it firmly established that Mr. Givens died as a result of murder versus any other number of ways he could have passed, Your Honor.

THE COURT: You mean, like, suicide?

[COUNSEL FOR DUNCAN]: Suicide. A drug overdose. We have no indication that he was actually shot while he was still alive. It's possible.

THE COURT: Okay.

[COUNSEL FOR DUNCAN]: Your Honor, and the same second degree assault would have required that - -

THE COURT: Second degree murder?

[COUNSEL FOR DUNCAN]: Yes. Excuse me. . . .

(Emphasis added.)

Duncan's counsel also moved for judgment of acquittal of the counts charging Duncan with intimidating a witness, use of a firearm in the commission of a crime of violence, and conspiracy to commit murder. The trial court denied the motion for judgment of acquittal on all counts.

Duncan did not call any witnesses, and elected not to testify. After resting Duncan's case, Duncan's counsel renewed his motion for judgment of acquittal at a...