Hicks v. State

NIKEL HICKS v. STATE OF MARYLAND

No. 0281

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

July 9, 2018

Circuit Court for Cecil County

Case No. 07-K-15-001606

UNREPORTED

Wright, Kehoe, Krauser, Peter B. (Senior Judge, Specially Assigned) JJ.

Opinion by Wright, 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 October 24, 2016, Nikel Hicks, appellant, was tried by a jury in Cecil County, Maryland. Hicks was convicted of first-degree murder and wearing, carrying, and transporting a handgun. On April 10, 2017, the Circuit Court for Cecil County sentenced Hicks to: life imprisonment, suspending all but eighty (80) years for first-degree murder, plus ten years imprisonment, consecutive, for the handgun count. Hicks timely appealed and presents the following questions for our review:

1. Did the trial court err in admitting hearsay evidence?

2. Did the trial court err in admitting other crimes evidence?

3. Did the trial court err in instructing the jury as to causation?

4. Was the evidence insufficient to sustain the convictions?

5. Does the cumulative effect of the errors warrant reversal of Hicks's convictions?

For the reasons to follow, we shall affirm the judgments of the circuit court.

BACKGROUND

The Wiretap

On October 11, 2015, the Cecil County Drug Task Force started a wiretap investigation involving Hicks. This wiretap captured calls made and received from Hicks's phone as well as "off-hook conversations.¹" The State used these phone calls and recordings as evidence against Hicks.

The Alleged Murder

In the early morning hours of October 12, 2015, Officer Jeremy Fuller responded to a report of shots fired at Gooseneck Court, in Elkton, Maryland. Upon his arrival, Off. Fuller discovered the body of Gregory Sammons-Burris, lying in a fetal position between two townhomes. After rolling Burris onto his back, Off. Fuller noticed gunshot wounds. It was later determined that Mr. Burris died from "multiple gunshot wounds."

Detective Lindsey Ziegenfuss arrived on the scene at 2:45 a.m. to investigate and seek out potential witnesses to the shooting. At that time, Det. Ziegenfuss observed Hicks standing across the street from the crime scene where a crowd of people had gathered. There were no witnesses to the shooting. Det. Ziegenfuss marked and collected three shell casings that were found within ten feet of Burris's body. She also recovered two live rounds of .380 caliber Federal ammunition directly next to Burris's body. However, no firearm was found in the vicinity of the crime. After processing the scene, officers responded to several locations within driving distance of the crime scene to check for sales of ammunition to match the ammunition recovered at the scene.

At the North East Walmart store in North East, Maryland, officers discovered that there had been a cash transaction dated October 11, 2015, at approximately 11:30 p.m.² Upon checking the stores cameras, officers observed a white male, Daniel Gerres, making a purchase. Officers tracked Gerres through video surveillance throughout thestore, which revealed that he had arrived in a gold Chevrolet Impala with a black male passenger, later identified as Hicks. Gerres purchased ammunition later identified as Federal brand .380 automatic. A search of multiple databases revealed Gerres's home address.

Officers responded to his address and located Gerres.³ Gerres informed officers that he had purchased the ammunition for an individual named "Nike," which was Hicks's street name. Gerres told the officers that he picked Hicks up in the area of Goose Neck Court, purchased the ammunition for Hicks, and then dropped Hicks back at Goose Neck Court. According to charging documents, this would have been within approximately two hours of the shooting of Burris.

Later that day, at approximately 7:22 p.m., Detective Sean Murphy conducted a search of the home of Finesse Mason, Hicks's girlfriend. Sgt. Russell directed Det. Murphy to the ceiling joists in the laundry room, where Det. Murphy located a white plastic bag containing a silver .380 Automatic caliber handgun. Upon inspecting the handgun, Det. Murphy found that it contained several bullets in the magazine and in the chamber. These bullets were the same brand and caliber of the Federal Brand .380 automatic ammunition that had been located at the crime scene. Officers also located a handwritten note from "Jamal," who was currently incarcerated, that alluded to "Shorty"Lo, Burris, needing to give money to "Jamal." The letter stated that "Jamal" wished for "Nike," to tell "Shorty Lo" to provide the money to "Chew."

While the police executed the search and seizure warrant, Hicks was observed in the neighborhood. During that time, officers received confidential information that Hicks had fled the area, although the sources did not know his destination. During the course of the investigation, a confidential source informed officers that he had heard Hicks say that he was present at the time of the murder. An additional source informed officers that he had personal knowledge that Hicks was involved in the murder of Burris.

Trial

Hicks's trial commenced on October 24, 2016, and lasted four days. The jury first heard testimony from Det. Ziegenfuss, a detective with the Elkton Police Department, Criminal Investigations Division. She testified that she spoke with two women, Azia Ray and Crystal Ray, whom were not considered witnesses. Det. Ziegenfuss also testified that she observed Hicks near the crime scene.

Perhaps the most important testimony came from Sgt. Russell, Supervisor of the Cecil County Drug Taskforce. Sgt. Russell testified as to the contents of recorded phone calls and text messages from a wiretap that had been placed on Hicks's phone the day before the murder of Burris. At trial, the jury heard a number of phone calls that occurred between Hicks and various third parties, whose identities were known and unknown to the police, and Sgt. Russell testified as to the substance of those calls:⁴

• Session D-4604 (October 11, 2015 at 8:12PM): An unknown male asks Hicks if he has any "johns for a [.]380." Hicks then informed the unidentified male that he "can probably get some" and "we [are] all gonna need [them]."

• Session D-472 (October 11, 2015 at 9:15PM): Sgt. Russell testified that this call was a negotiation between Hicks and an unknown male for the sale of a handgun. Hicks states he "need[s] them johns with it[,]" meaning he wanted the bullets to go with the handgun. The unknown male responds he will "take the three," which Sgt. Russell testified means $300.

• Session D-474 (October 11, 2015 at 9:28PM): Hicks calls an individual identified as Chavez James and states, "we need to go get that joint ASAP. . . [t]hat joint you showed me today." Sgt. Russell testified this is referring to a handgun. Hicks reiterated the urgency of obtaining the weapon and that price is not important. Hicks asks what else James has available. James responds he has a "[c]ouple shotties," meaning shotguns. At the conclusion of the call, Hicks indicated he is on Gooseneck Court and James requested that Hicks come see him.

• Session D-475 (October 11, 2015 at 9:34PM): Hicks called an individual identified as Dajon Hall. During the course of the phone call, an individual identified as Daniel Gerres spoke with Hicks. Hicks told Gerres that he "need[s] to go to Walmart and buy. . . some of [those] things again." Det. Ziegenfuss' investigation revealed that the Walmart in North East, Maryland sold Federal [.]380 ammunition. Det. Ziegenfuss obtained the security camera footage provided by the Walmart Asset Protection Associate. The video showed Hicks with Daniel Gerres enter the store, retrieve ammunition from its locked casing, and leave the store. Det. Ziegenfuss obtained a receipt, which showed the purchase of Federal [.]380 ammunition on October 11, 2015 at 11:36PM.

• Session D-476 (October 11, 2015 at 9:37PM): Hicks received a text message stating "[w]e strapped now[.]" Sgt. Russell testified "strapped" commonly means that an individual is armed.

• Session D-512 (October 12, 2015 at 4:13AM): An unknown female told Hicks that "people . . . tryin[g] to say [Hicks] had somethin[g] to do with it." Sgt. Russell testified this was based on Hicks's car being in the area.

• Session D-513 (October 12, 2015 at 7:22AM): Hicks called Dajon Hall and informed him that Sammons-Burris was dead. Hicks stated that people around the crime scene said "they put one in his head [and] a couple in his back." Hicks also told Hall that Sammons-Burris was in a fetal position at the scene. Hicks told Hall, "[w]hoever did it was not playing . . . they wanted to send [him] to the graveyard . . . [and] had no intentions [of] sending him to the hospital."

• Session D-607 (October 12, 2015 at 7:26PM): Hall called Hicks. Hall asked Hicks to get "the joint" out of the laundry room of Vanessa Mason's home. Sgt. Russell testified that a "joint" means a handgun.

Hicks's counsel made continuing objections to Sgt. Russell's testimony regarding the wiretapping. Additional facts will be provided as they become relevant to our analysis.

DISCUSSION

I.

Hicks's first claim of error is that the trial court admitted inadmissible hearsay evidence, specifically the wiretap evidence. The State responds that Hicks's claim is waived and unpreserved because the defense counsel's objection only applied to relevance, unfairness, prejudice, and prior bad acts evidence and was, therefore, limited in scope. We agree with the State's argument that Hicks did not properly preserve this issue.

Maryland Rule 8-131(a) governs our scope of review in considering issues on appeal. "Ordinarily, the appellate court will not decide any . . . issue unless it plainly appears by the record to have been raised in or decided...