Dutton v. State

DIONTE KEITH DUTTON v. STATE OF MARYLAND

No. 2184-2019

Court of Special Appeals of Maryland

September 21, 2021

Circuit Court for Wicomico County Case No. C-22-CR-18-000341

Fader C.J., Kehoe, Friedman, JJ.

OPINION ^[*]

Friedman, J.

Jaquanta Walton was shot and killed outside of the VFW Post in Salisbury, Maryland. According to the State's theory, Lee Braboy killed Walton at the behest of his friend, appellant Dionte Dutton. A jury convicted Dutton of second-degree murder, conspiracy to commit first-degree assault, and possession of a regulated firearm by a prohibited person. On appeal, Dutton raises three issues (which we have reordered) (1) a sufficiency of the evidence claim; (2) a claim that the prosecutor made improper statements; and (3) an evidentiary question concerning the admissibility of a picture of a handgun. We hold that the evidence of Dutton's complicity in the killing was legally sufficient. We also hold, however, that the prosecutor's comments were improper in several regards. Given the severity and importance of the improper comments, juxtaposed against the thinness of the State's case, we exercise our discretion to engage in plain error review, and reverse Dutton's conviction. As a result of these holdings, we need not reach the question regarding the admissibility of the picture of the handgun.^[1]

BACKGROUND

In June of 2017, Dionte Dutton and Jaquanta Walton both attended a party at the Veterans of Foreign Wars (VFW) Post in Salisbury, Maryland.^[2] While Walton danced, Dutton mostly stood to the side of the dance floor. The two men may have had a disagreement while at the party. At some point while at the VFW, Dutton texted his friend, Lee Braboy, "Bro, come out here wit yea doe." When the party ended, Dutton and Walton left the VFW separately. Dutton got into the passenger seat of Braboy's maroon Lincoln Town Car. Walton walked across the street to join a group of people shooting dice. At some point, Dutton and Braboy switched seats. Dutton drove the Lincoln around the block and closer to the dice game. Braboy eventually got out of the Lincoln. At around 1:30 a.m., Braboy ran through the dice game, shot Walton in the chest at point-blank range, and ran away. Some of Walton's companions drove him to a nearby hospital, but abandoned him at the doorstep of the hospital, where he died.

In the ensuing investigation, the police obtained the footage from surveillance cameras inside and around the outside of the VFW, from which they could see the party, the dice game, the Lincoln driving around the VFW, and the killing. The police identified Dutton as a person of interest and questioned him in the days after the shooting. Dutton told the police that he drove Braboy's Lincoln, "from time to time," but denied any knowledge about or connection to Walton's death. As part of their investigation, the police extracted data from Braboy's cellphone. The police found the text that Dutton sent to Braboy ("Bro, come out here wit yea doe"), and a picture of a handgun that Braboy had sent to Dutton nearly two months before the shooting. The police also found the record (but not the contents) of two text messages, six phone calls, and one attempted phone call between Dutton and Braboy, all between 12:30 a.m. and 2:06 a.m. on the morning of the shooting.

The police also obtained a wiretap order for Dutton's cellphone. Between April 6th and April 19th of 2018, the police intercepted and were able to review the contents of approximately 4, 000 phone calls, eleven of which the State later argued to the jury, showed that Dutton was "worried" and "spooked" by the investigation.

On April 19th, Dutton was arrested. He again denied any connection to or knowledge about Walton's death, but acknowledged that he and Braboy were in the Lincoln together before Braboy shot Walton. The State charged Dutton with murder in the first degree, murder in the second degree, conspiracy to commit assault in the first degree, assault in the first degree, assault in the second degree, reckless endangerment, use of a firearm in the commission of a felony or crime of violence, possession of a regulated firearm by a prohibited person, and wearing, carrying or transporting a handgun in a vehicle.

At Dutton's trial, the jury was shown the relevant surveillance footage, the text message that Dutton sent to Braboy from the VFW hall during the party ("Bro, come out here wit yea doe"), the picture of the handgun that Braboy sent to Dutton two months before the shooting, which was admitted into evidence over Dutton's objection, and eleven phone calls the police intercepted after securing the wiretap order for Dutton's cellphone. The jury also heard from the State's gang expert, George Norris. As part of the defense, Dutton's counsel argued to the jury that an individual named Tyquan King, rather than Dutton, was involved in Walton's death. Dutton's counsel also offered into evidence additional surveillance footage that showed the headlights of King's car flash on and off two seconds before Braboy shot and killed Walton. Dutton's counsel argued that this was the signal for Braboy to shoot Walton.

The jury convicted Dutton of second-degree murder, conspiracy to commit first degree assault, and possession of a regulated firearm by a prohibited person. The trial court sentenced Dutton to 83 years' incarceration. Dutton noted a timely appeal.

DISCUSSION

As noted above, Dutton argues (1) that the evidence was insufficient as a matter of law to sustain his convictions (2) that the prosecutor made improper statements in closing argument that prejudiced his right to a fair trial; and (3) that the picture of the handgun that Braboy texted to him months before the shooting should not have been admitted into evidence. Because of our resolutions of issues 1 and 2, we need not, and do not, reach issue 3.

I. Sufficiency of the Evidence

Dutton contends that the evidence was insufficient to convict him of second-degree murder, conspiracy to commit first-degree assault, and possession of a regulated firearm by a prohibited person. Specifically, Dutton argues that the State failed to put on evidence that he acted as Braboy's accomplice, that is, that he "advocated or encouraged" Braboy to commit the crime. See Silva v. State, 422 Md. 17, 28 (2011); see also Martin v. State, 218 Md.App. 1, 33 (2014) (explaining that an accessory before the fact is one who, "aided, counseled, commanded[, ] or encouraged the commission [of a felony] without having been present … at the moment of perpetration"). Dutton also argues that the State failed to put on evidence that he formed the specific intent to kill or inflict grievous bodily harm (such that death would likely be the result) that the State needed to support the second-degree murder charge, see Kouadio v. State, 235 Md.App. 621, 627-28 (2018); failed to put on evidence of an agreement necessary to prove conspiracy, see Townes v. State, 314 Md. 71, 75 (1988); and failed to put on evidence that Dutton had constructive possession of the handgun that Braboy held and used, see Price v. State, 111 Md.App. 487, 498-99 (1996).

When reviewing the sufficiency of the evidence, we view the evidence and any reasonable inferences to be drawn from that evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Fuentes v. State, 454 Md. 296, 307-08 (2017). Where there are "competing rational inferences available" from the evidence adduced at trial, the appellate court will not second guess the jury's determination. Roes v. State, 236 Md.App. 569, 583 (2018) (quoting State v. Manion, 442 Md. 419, 431 (2015)). In evaluating the sufficiency of the evidence, we do not consider whether the State has proved its case beyond a reasonable doubt. Lindsey v. State, 235 Md.App. 299, 311 (2018). We only consider whether the State satisfied its burden of production and was entitled to have the charges submitted to the jury. Chisum v. State, 227 Md.App. 118, 125 (2016).

We begin by reviewing, in some detail, the evidence that the State produced. There were five pieces of evidence that could have satisfied the State's burden: (1) the surveillance footage from in and around the VFW; (2) the text message from Dutton to Braboy that said, "Bro, come out here wit yea doe, "; (3) the expert testimony of George Norris; (4) the phone record showing that Braboy sent Dutton a picture of a handgun two months before Walton was killed; and (5) the eleven phone calls, which the State argued showed that Dutton was "worried" and "spooked" by its investigation.

A. The Surveillance Footage

The surveillance footage shows that Dutton entered the VFW at approximately 11:32 p.m., was scanned with a handheld metal detector by a security guard, and proceeded to the area around the dance floor. Walton and his friend, subsequently identified as Devon Cormack, entered the VFW at approximately 11:49 p.m.

At 11:53 p.m., the camera captured Walton on the dance floor, and Dutton near some tables and chairs set up to the left of the dance floor. Dutton then exited the main event hall through a side door, to perhaps a courtyard or another room, while Walton remained on the dance floor. At 11:55 p.m., Walton exited through the same door. Roughly ten seconds later, Dutton walked back through the door into the main event hall.

The next piece of surveillance footage begins at 12:22 a.m. In it, Walton danced while Dutton stood on the edge of the dance floor looking on. Walton appeared to make hand signs and gestures while he was dancing, although the gestures did not appear to be directed at one specific person, or in a single direction.^[3] At one point,...