Janifer v. State

1

ANTONIO OLIVER JANIFER v. STATE OF MARYLAND

No. 1814-2022

Court of Special Appeals of Maryland

March 20, 2024

UNREPORTED^[*]

Circuit Court for Baltimore City Case No. 120196025

Reed Albright, Raker, Irma S. (Senior Judge, Specially Assigned).

OPINION

Raker J Appellant Antonio Janifer, was convicted in the Circuit Court for Baltimore City of two counts of attempted first-degree murder, carjacking, attempted carjacking, attempted armed robbery, home invasion, reckless endangerment, resisting arrest, and various firearms and traffic offenses. Appellant presents the following questions for our review:

1. "Did the trial court err in unduly limiting Appellant's right to cross-examine the State's witnesses?

2. Did the trial court err in failing to merge Appellant's convictions?

3. Did the State present inadmissible and prejudicial ballistics evidence to the jurors?"

Finding no error, we shall affirm.

I.

Appellant was indicted by the Grand Jury for Baltimore City of two counts of attempted first-degree murder, two counts of attempted second-degree murder, four counts of first-degree assault, one count of carjacking, one count of attempted carjacking, one count of attempted armed robbery, two counts of home invasion, one count of reckless endangerment, one count of resisting arrest, four counts of use of a firearm in the commission of a crime of violence, two counts of discharge of a firearm, one count of prohibited possession of a regulated firearm by a person with a disqualifying felony, one count of transporting a firearm in a vehicle, one count of wearing, carrying, or transporting a firearm on the person, four counts of possession of a handgun near a place of public assembly, one count of possession of illegal ammunition, one count of reckless driving, one count of hit and run, and four counts of fleeing and eluding.

The jury found appellant not guilty of resisting arrest. The jury rendered no verdict on the lesser included offenses of attempted second-degree murder, first-degree assault, and one count of home invasion. The jury found appellant guilty of all other counts. For sentencing purposes, the court merged wearing, carrying, or transporting a firearm on the person with transporting a firearm in a vehicle, merged all of the counts of possession of a handgun near a place of public assembly into a single count, and merged all of the counts of fleeing and eluding into a single count. The court imposed to two consecutive life sentences for attempted first degree murder and terms of incarceration totalling 213 years on the remaining counts.^[1]

On May 26, 2020, appellant was driving in Baltimore City. Officer Joshua Jackson of the Baltimore City Police Department approached appellant's car when he observed that it was stopped at a green light and holding up the cars behind it. Appellant appeared to be unconscious and looked as though he had overdosed. Officer Jackson nudged appellant several times. When appellant woke up and saw the officer, he immediately put the car in motion. Officer Jackson returned to his police vehicle and began to chase appellant.

Appellant drove erratically and well above the posted speed limit until he hit the curb and another car. Appellant dove out of his crashed car and attempted to flee. Officer Jackson gave chase and restrained appellant. Officer Jackson held appellant in what the officer described as a "hug." When appellant stopped resisting, Officer Jackson removed one of his hands from the "hug" to reach for his radio. At that point, appellant pulled out a gun and shot Officer Jackson three times in the stomach. The attack on Officer Jackson was recorded on both bodycam footage and surveillance footage from a store across the street. After he recovered from his injuries, Officer Jackson identified appellant from a photo array as the man who had shot him.

After appellant shot Officer Jackson, he escaped, once again. He approached the car of Brian Winfield, who had pulled onto a cross street when he heard the police chase and stopped at a red light. From approximately one arm's-length away, appellant shot at Mr. Winfield's head through the driver's side window. The car stopped the bullet and Mr. Winfield escaped in the car. Mr. Winfield's dashboard camera recorded the incident. Mr. Winfield identified appellant for the police and, later, before the jury, based on the footage from his dashboard camera. Surveilance footage from the area shows appellant approaching Mr. Winfield's car, shoot at Mr. Winfield's car and then run down the street towards Mr. Benamur's car.

Mr. Benamur had stopped his car to order food on the same cross street as Mr. Winfield. He heard sirens and what sounded like gun shots. He saw a man running towards him, pointing a gun towards him. Mr. Benamur got out of his car because he was afraid. The man jumped into the car and drove off. Mr. Benamur's car was later found abandoned in Washington D.C. Mr. Benamur stopped a police officer, reported what had happened, and described his attacker. The description matched appellant. Mr. Benamur was unable to identify his attacker when the police showed him a photo array.

At trial, on direct examination, Mr. Benamur testified about what had happened to him while he was parked. He testified to the same description of his attacker that he had given the police. He did not testify about his attempt to identify his attacker from a photo array, nor did he make an in-court identification of his attacker. On cross-examination, appellant sought to question him about his inability to identify his attacker for the police. The trial court permitted cross-examination on the description Mr. Benamur gave, but, because the witness made no identification (either to the police or at trial), the court precluded testimony about the photo array.

Mr. Anthony Ricotilli lived a short distance from the area where the car chase and the shootings had happened. On the evening of May 26, 2020, there was a knock on his door. Mr. Ricotilli answered the door and saw a man pointing a gun at him. The man entered Mr. Ricotilli's house and demanded Mr. Ricotilli's car keys. Mr. Ricotilli told the man that he did not have car keys and the man left. Mr. Ricotilli called the police and gave them a description of the man who had entered his house. The next day, Mr. Ricotilli was shown a photo array by the police and was unable to make an identification. However, in court, Mr. Ricotilli identified appellant as the man who had entered his house and pointed a gun at him.

Appellant sought to cross-examine Mr. Ricotilli on the failed photo array. Initially, defense counsel asked the following questions without objection:

[Defense Counsel]: Do you remember that at some point they had taken you to the Homicide department for the Baltimore City Police Department?

Mr. Ricotilli: Yes. That is correct.

[Defense Counsel]: And was that the same evening?

Mr. Ricotilli: Yes.

[Defense Counsel]: Now, and at that opportunity -you had an opportunity at that point to meet with a police officer that showed you a series of photographs which they commonly refer to as a "photo array."

Mr. Ricotilli: Uh-huh.

[Defense Counsel]: And do you recall-do you recall that?

Mr. Ricotilli: Incident, yes.

[Defense Counsel]: Yeah.

Mr. Ricotilli: Yes.

[Defense Counsel]: And they in fact did show you six photographs, did they not, or a series of photographs?

Mr. Ricotilli: Yes. A series, yes.

[Defense Counsel]: All right. And do you recall that, in fact, you were unable to identify anyone in those pictures that was the same individual that had just come to your door [at your address]?^[2]

Mr. Ricotilli: Not a hundred percent correct, yeah.

[Defense Counsel]: Well, did you say not a hundred [percent] to them, or did you just say, "I don't recognize anyone"?

Mr. Ricotilli: I couldn't narrow down the-I had a-in the series I could discern that one was, but I wasn't a hundred percent sure, is what I said.

[Defense Counsel]: So you-and you told that to the officer-

Mr. Ricotilli: Yeah.

[Defense Counsel]: -that showed you the pictures?

Mr. Ricotilli: Uh-huh.

Defense counsel then circled back several minutes later and attempted to show Mr. Ricotilli the photos from the array and have him identify them as the photo array he was shown by the police. At the bench, the State objected to the use of the photo array. Appellant's counsel asserted that the questions about the photo array were relevant because the physical description Mr. Ricotilli gave the police matched all the photos in the photo array and Mr. Ricotilli was unable to identify appellant. Appellant's counsel acknowledged, however, that he had no intention of admitting the photos from the photo array. The court sustained the objection.

In addition to the testimony of eyewitnesses and police officers, the State called a forensic analyst who testified that appellant's DNA was present on the interior and exterior of Mr. Ricotilli's door and the steering wheel cover of the car stolen from Mr. Benamur.

The State also offered the testimony of Daniel Lamont, a firearms examiner for the Baltimore Police Department. Mr. Lamont was offered as an expert in the examination, identification function, and operability of firearms and ammunition. He testified that he analyzed five spent cartridges, a bullet recovered from the area where Officer Jackson was shot, and a single cartridge from the block where Mr. Winfield was fired upon. Mr. Lamont analyzed the cartridges using a microscopic analysis. This analysis relied upon a theory that there are unique microscopic marks left on the barrel or breech of a firearm durring manufacture. These marks can be transferred to a cartridge or bullet as the gun is fired. The firearms...