Faust v. State

DONOVAN FAUST v. STATE OF MARYLAND

No. 3438

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

June 2, 2020

Circuit Court for Baltimore City

Case No. 118024003

UNREPORTED

Graeff, Nazarian, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Alpert, 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.

Appellant, Donovan Faust, was convicted by a jury, in the Circuit Court for Baltimore City, of murder in the first degree; use of a firearm in the commission of a crime of violence; possession of a regulated firearm after previously having been convicted of a crime of violence; and wearing, carrying, and transporting a handgun on his person. After the court sentenced him to life imprisonment for first-degree murder and additional terms on the other charges, Faust noted this appeal, raising three issues for our review:

I. Whether the circuit court erred in admitting a statement that had been made by Anton Harris, a State's witness;

II. Whether the circuit court erred in restricting the defense's cross-examination of Harris; and

III. Whether the circuit court erred in preventing the defense from impeaching Harris with two of his prior convictions.

Perceiving no error, we shall affirm.

BACKGROUND

At approximately 7:30 p.m., on January 10, 2018, Eric Staton was shot and killed, just outside the entrance of the Family Dollar store, in the 1400 block of East Cold Spring Lane, in Baltimore City. There was a single eyewitness to the crime: Anton Harris.

Earlier that evening, at approximately 7:00 p.m., Harris and Staton (who lived across the street from him) had walked several blocks from their residences to the Family Dollar store. The two men entered the store, and Harris shoplifted several items, putting them into a black-and-silver bag he was carrying. Harris left the store, while Staton remained inside, looking for small Valentine's Day gifts for his mother and daughter, aswell as several items for Harris (who had given Staton money with which to purchase them).¹

While Harris waited outside for Staton, he observed a man, hiding in some nearby trees. As the man emerged, Harris recognized him as Faust,² who lived a block away from him, and they briefly engaged in small talk.

At approximately 7:23 p.m., Staton emerged from the store, and Faust shot him five times. As soon as gunfire rang out, Harris fled and ultimately returned home. He did not, at that time, call "911" or otherwise notify the police what had happened.

Police officers responding to the scene observed Staton, slumped against the wall of the store, suffering from multiple gunshot wounds. The first responding officer, Baltimore City Police Officer Gary Klado, administered cardio-pulmonary resuscitation ("CPR"), and, soon thereafter, paramedics arrived to continue administering CPR. Staton was transported to Johns Hopkins Hospital and pronounced dead at 7:54 p.m.

After paramedics had taken over the duty of attending to the victim, Officer Klado turned his attention to investigating the crime. One of the first things he observed was that the Family Dollar store had a video surveillance system, with both interior and exterior cameras. Officer Klado reviewed surveillance footage and obtained a description of thesuspect, who was wearing "a puffy jacket" with "a hood" as well as "dark colored pants," and he notified the Homicide Division and the Crime Lab.³

Detective Frank Miller, of the Baltimore City Homicide Unit, responded to the crime scene. Detective Miller identified the victim from an Independence Card, in the name of Eric Staton, recovered from the victim's pocket. No weapon was recovered, and no shell casings were found at the crime scene, leading Detective Miller to conclude that the murder weapon was, most likely, a revolver. After ensuring that Crime Lab personnel had collected evidence, Detective Miller drove to the hospital "to verify the identification."

The following day, Detective Miller notified Staton's next of kin, and he was informed that, on the night of the murder, Staton had been accompanied by Harris. In addition, because Harris previously had been a confidential informant, he contacted his handler, Detective Kevin Fassl (who worked in the Homicide Unit), to inform him that "he knew about the murder."

That evening, Harris was transported to the Homicide Unit, where he was interrogated by detectives. Because he "was afraid," the detectives had to "convinc[e]" him "to give a [recorded] statement," and he ultimately did so. From that interrogation, Detective Miller learned that Faust was the shooter, and Harris further informed the detectives where Faust lived. Harris also identified Faust from a double-blind photographic array.

An arrest warrant was issued for Faust, and a search and seizure warrant was issued for his residence. On January 12, 2018, Faust was seen, walking in the neighborhood where he lived, and was taken into custody. Among the items seized from his residence were a winter coat, adorned with a "buckle on the top," and a pair of shoes, both of which matched the clothing worn by the shooter, as seen on the surveillance video. Inside the coat was a ski mask, matching the mask worn by the shooter.

On January 24, 2018, a five-count indictment was returned, in the Circuit Court for Baltimore City, charging Faust with murder in the first degree; assault in the first degree; use of a firearm in the commission of a crime of violence; possession of a firearm after previously having been convicted of a crime of violence; and wearing, carrying, and transporting a handgun on his person. The matter proceeded to a jury trial, and Faust was found guilty of all charges except first-degree assault, which was not submitted to the jury.

The court thereafter sentenced Faust to life imprisonment for first-degree murder; a consecutive term of twenty years' imprisonment, the first five without the possibility of parole, for use of a firearm in the commission of a crime of violence; and fifteen years' imprisonment for possession of a firearm after previously having been convicted of a crime of violence, to run concurrently with the other firearm offense.⁴ Faust then noted this timely appeal. Additional facts will be noted where pertinent to the discussion of the issues.

DISCUSSION

I.

After the defense had cross-examined Harris, the circuit court allowed the State to introduce into evidence, for rehabilitation, the recorded out-of-court statement that Harris had made to police officers. Faust claims that it was error to do so but that, even if it were assumed that he had opened the door "to some evidence of" Harris's demeanor and "his willingness to speak to the police," the court's decision to admit the recorded prior consistent statement was "a wildly disproportionate response to what was elicited" on cross-examination and was therefore an abuse of discretion.⁵

The State counters that this claim is not preserved; that Harris's prior consistent statement was admissible for a non-hearsay purpose; and that any purported error was harmless.

A.

Initially, we find no merit in the State's non-preservation argument. The defense objected, twice, to the State's attempt to introduce the recorded statement and, once it was clear that the court intended to overrule its objection, the parties engaged in a protracted discussion concerning redactions of irrelevant or unfairly prejudicial portions of thatstatement. Finally, just before the redacted statement was broadcast to the jury, the following exchange took place:

THE COURT: Other than your major objection, is there any objection to it?

[DEFENSE COUNSEL]: Other than those previously addressed.

THE COURT: Okay. Thanks.

(Emphasis added.)

The court then instructed the jury that the redacted transcripts, which were being distributed at that time, were simply "a tool to aid" them "while listening to the testimony" and were not, themselves, evidence. The 59-minute-long statement then was played before the jury.

Short of standing on top of the defense table and yelling, "Stop!", we cannot imagine what else the defense could have done that it did not do to make its objection known. Moreover, the circuit court obviously was aware of the objection, clearly overruled it, and decided the matter. This claim is preserved for our review, Md. Rule 8-131(a), and we turn to address it on the merits.

B.

We begin by setting forth the background. Harris was, understandably, a reluctant witness, having witnessed the murder of his friend, who was standing right next to him. Prior to Faust's trial, he fled Maryland, and, to secure his appearance, a body attachment was issued.

After he had been returned to Maryland, a bail review hearing was held. The State, believing that Harris was a flight risk, asked that he be held without bail until Faust's trial, some two weeks later. The court agreed, finding that, given that Harris recently had fled the jurisdiction and announced his unwillingness to appear as a witness at Faust's trial, he was indeed a flight risk, and it ordered him held without bail until trial.

During opening statement at Faust's trial, the defense launched into an attack against Harris's credibility:

But the reality is that this entire case comes down to the word of one single witness, one. And that is very dangerous, ladies and gentlemen, because the State is asking you to convict a man of murder not based on a single shred of forensic evidence. Not based on a thorough investigation but based on the word of one single witness.

And look maybe, maybe that wouldn't be such a huge problem if the State's star witness was an honest law abiding person who didn't have anything to gain out of being here, but as the evidence will show, that is not who Mr. Harris is.

Defense counsel expounded on that point, asking the jury "wh...