Gordon v. State

QUINTELL RAYSHAUN GORDON v. STATE OF MARYLAND

No. 1720

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

February 17, 2021

Circuit Court for Montgomery County

Case No. 135558C

UNREPORTED

Berger, Arthur, Gould, JJ.

Opinion by Arthur, 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.

A jury in the Circuit Court for Montgomery County convicted appellant Quintell Rayshaun Gordon of robbery with a dangerous weapon and first-degree assault. The court sentenced Gordon to a term of 20 years for the robbery conviction, with all but eight years suspended, followed by five years of supervised probation. For sentencing purposes, the assault conviction was merged with the conviction for armed robbery.

Gordon appeals his convictions, presenting the following questions, which we have reordered:

1. Did the trial court abuse its discretion in admitting irrelevant and prejudicial evidence?

2. Did the trial court commit plain error in taking no curative action when the prosecutor engaged in improper closing argument?

3. Did the trial court impermissibly restrict [defense counsel's] closing argument?

Gordon waived his objection to the admission of the evidence that he challenges on appeal, so we shall not address the issue. We shall decline Gordon's request to engage in plain-error review of his unpreserved challenge to the prosecutor's closing argument. To the extent that the court placed any restrictions on defense counsel's closing argument, we shall conclude that the court did not abuse its discretion. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Gordon was charged with robbing a taxi driver at gunpoint. The driver, Claudia Reyes, identified him at a lineup.

Gordon filed a pre-trial motion to suppress evidence of the out-of-court identification, as well as any in-court identification, on grounds that defense counsel was not present during the lineup. Gordon did not assert that there was anything suggestive about the lineup procedure, which had been recorded on video.

In accordance with Webster v. State, 299 Md. 581 (1984), the court granted the motion to suppress evidence of the out-of-court identification, but denied the motion to suppress any in-court identification of Gordon by Ms. Reyes. In reaching its decision, the court found that because there was no evidence that the lineup was impermissibly suggestive, there was no substantial likelihood of misidentification.

At trial, Ms. Reyes testified, through an interpreter, that she is employed as a driver by El Raitero, a rideshare or taxi company that is used almost exclusively by Spanish speakers. Unlike Uber, which uses a mobile app, El Raitero required customers to request a ride by placing a telephone call or sending a text message to the company. The company would then dispatch one of its employees to the pickup point. Payment is accepted in cash only.

At 2:47 p.m. on February 12, 2019, El Raitero received a text message, written in English, requesting a ride from a location in Rockville. Ms. Reyes was dispatched to that location, where she picked up a passenger, whom she identified at trial as Gordon.

Ms. Reyes observed Gordon as he walked to her car. Gordon had the hood of his sweater pulled up over his head, but Ms. Reyes could see his face.

Gordon sat in the back seat of Ms. Reyes's car, directly behind the driver's seat. According to Ms. Reyes, Gordon did not speak Spanish. He told her where he wanted togo, but she did not understand him. She gave Gordon her cell phone, and he entered the address into the navigation app. The address that Gordon entered, 12803 Hawkshead Terrace in Silver Spring, was about 30 minutes away.

Gordon kept the hood of his sweater pulled up over his head during the drive and did not speak. Ms. Reyes felt "nervous" and "afraid" because it was "very unusual" for a person who does not speak Spanish to request transportation from El Raitero.

Shortly before she reached the destination, Ms. Reyes looked at Gordon in her rearview mirror and said that the fare would be $38. She looked at him again as they arrived at the address because he did not appear to be taking out cash for the fare.

When Ms. Reyes pulled into the driveway at 12803 Hawkshead Terrace, she heard Gordon loading a gun. Gordon put the gun to her back and said, "[G]ive me your money." Ms. Reyes told him that she did not have any money. Gordon leaned into the front seat and started rummaging through a box. At that point, Gordon was about eight inches from Ms. Reyes. She was able to see his face despite his attempts to conceal it with his sweater. She observed a black gun in his hand.

Gordon took $100 in cash, along with Ms. Reyes's phone and company radio. He got out of the car and began to walk away slowly, as though "nothing ever happened."

Ms. Reyes flagged down a passing car and asked its occupants to call 911. Gordon turned around, witnessed this interaction, and ran into a wooded area.

Ms. Reyes described her assailant to the responding police officers as a skinny, Black man, 20 to 25 years old, and between 5'6" and 5'9" tall, wearing a gray hooded sweatshirt with the hood up, blue jeans, and black tennis shoes. Ms. Reyes's cell phoneand company radio were later located on the floor of the back seat of her car, apparently having been discarded there by Gordon.

The police investigated the cell phone number from which the request for the ride had originated. But because the message had been sent through a text-messaging app, the number could not be traced to an individual. No fingerprints were recovered from Ms. Reyes's telephone, other than her own.

Detective Brian Dyer, the lead investigator, learned that Dominic Simms, a person with whom the detective was familiar "from previous contacts," lived several houses away from 12803 Hawkshead Terrace. According to Detective Dyer, Simms was associated with a "group of people" who were "known to the police for various criminal activities." In the two months preceding the robbery, El Raitero had received requests for rides from both Simms's house and 12803 Hawkshead Terrace. Because those ride requests were also made using a text-messaging app, they could not be traced to a particular phone or person.

While investigating an unrelated matter, Detective Dyer executed a search warrant for Simms's social media account. The detective discovered two photographs in which both Simms and Gordon appeared. One of the photographs was dated February 7, 2019, five days before the robbery. Both photographs were admitted into evidence, over defense counsel's relevance objection.

On March 2, 2019, three weeks after the robbery, the police conducted a traffic stop of a car in which Gordon was a passenger. The police found a loaded handgun, different in color from the gun that Ms. Reyes saw on the day of the robbery, underneatha rug where Gordon had been sitting. Gordon was later arrested and charged with the robbery of Ms. Reyes.

During the booking process on the robbery charges, Gordon provided the number of the telephone that he had on his person. Detective Scott Sube, who testified on behalf of the State as an expert in the area of forensic analysis and cellular telephone tracking and technology, plotted call-detail records for that phone number. According to Detective Sube's analysis, calls to or from Gordon's phone "touched" a cell phone tower located within a mile of 12803 Hawkshead Terrace at 1:00 a.m., 5:45 p.m. and 7:39 p.m. on the day of the robbery. This evidence indicated that the phone had been used in that area at those times.

On direct examination, the prosecutor asked whether Ms. Reyes had ever seen a photograph of Gordon. Ms. Reyes stated that, approximately one month before trial, Ricardo Diaz, the owner of El Raitero, had shown her a photograph of Gordon that he had seen in an online news article. Ms. Reyes had told Mr. Diaz that she was certain that Gordon was the person who had robbed her. In response to the prosecutor's questions, Ms. Reyes stated that her memory of the assailant's appearance was not influenced by the photograph that she had been shown. Ms. Reyes maintained that she was "already sure of how his face looked[,]" and that she would "never forget the face."¹

The State introduced recorded telephone conversations in which Gordon is heard saying, "Come on, mom. I'm not scared. I did what I did. . . . [N]obody put no gun on my head and made me do[] any of that[.] . . . I got to man up. If I do got to go up the road, I'm going to do what I got to do, stay out of the way, do my time. . . . They already caught me."

The jury convicted Gordon of robbery with a dangerous weapon and first-degree assault. We shall introduce additional facts in the discussion, as they become relevant.

DISCUSSION

I. "Simms-related evidence"

On appeal, Gordon focuses on the evidence of his relationship with Simms. Gordon claims that the "limited" probative value of the "Simms-related evidence" was "overwhelmed by unfair prejudice." He asserts that the photographs showing him with Simms, as well as the accompanying testimony regarding Simms's "relationship with the police and the sketchy character of his associates," were "completely extraneous." The State responds that Gordon has not preserved this issue for appellate review. We agree.

To establish Gordon's presence at the scene of the robbery, the State proved, through the testimony of Detective Dyer, that Gordon was an acquaintance of Simms, who lived nearby. Gordon did not object to Detective Dyer's testimony regarding Simms's contacts with police and the criminal activities of his known associates.

The prosecutor showed two exhibits to Detective Dyer. The detective identified the exhibits as the photographs that were recovered during the execution of the searchwarrant for Simms's...