Johnson v. State

228 Md.App. 391

139 A.3d 1039

George JOHNSON

v.STATE of Maryland.

No. 660, Sept. Term, 2014.

Court of Special Appeals of Maryland.

June 28, 2016.

Julie M. Reamy (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Benjamin A. Harris (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: GRAEFF, LEAHY, and RAYMOND G. THIEME, JR. (Retired, Specially Assigned) JJ.

LEAHY, J.

George Johnson, (“Appellant”), and Derrick Toomer were charged and tried separately for the contract killing of bail bondsman Ralph Hall. Mr. Hall was found early in the morning on July 30, 2008, lying dead from gunshot wounds in the parking lot of KIPP Harmony Academy, a public charter elementary school located in Baltimore City.

Appellant was tried before a jury in the Circuit Court for Baltimore City after his codefendant Toomer had been convicted of murder. The State attempted to present Toomer as a witness against Appellant, but when called before the jury to testify, Toomer refused to answer questions and invoked his Fifth Amendment privilege against self-incrimination. Acting swiftly, the circuit court halted questioning and excused the jury before examining the merits of Toomer's assertion of privilege. The circuit court did not compel Toomer's testimony.

After the jury convicted Appellant of Mr. Hall's murder, Appellant filed a motion for a new trial arguing, inter alia, that the State called Toomer for the impermissible purpose of using Toomer's reliance on the Fifth Amendment privilege before the jury to imply Appellant's guilt. Toomer maintained that the State had been made aware that he would not testify. The court, however, rejected Appellant's contentions of error and denied his motion for a new trial. Appellant asks this Court to examine:

I. Whether Appellant was denied his right to a fair trial, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments, when the prosecution called his separately tried and convicted codefendant as a witness in its case in chief with full knowledge that the witness would invoke a valid Fifth Amendment privilege and refuse to testify?

II. Whether the trial court erred in denying appellant's motion for new trial when the prosecution,

a. Improperly called appellant's separately tried and convicted codefendant as a witness with full knowledge that the witness would invoke his Fifth Amendment privilege and refuse to testify; b. Committed a Brady violation by failing to disclose impeachment information relating to a critical prosecution witness;

c. Improperly displayed a firearm to the jury, which was not admitted into evidence or forensically linked to crime, in support of its closing argument asserting that the firearm was, in fact, the murder weapon used by appellant?

Applying the factors enumerated in Vandegrift v. State, 237 Md. 305, 309–10, 206 A.2d 250 (1965), we conclude Appellant was not prejudiced by codefendant Toomer's brief appearance before the jury because (1) the prosecutor did not call Toomer solely to gain the benefit of “the effect of the claim of privilege on the jury”; (2) the circuit court minimized any negative effects of Toomer's refusal to testify when it halted questioning expeditiously and excused the jury; and (3) during the course of the trial Appellant never requested any curative instruction nor did he move for a mistrial. Regarding the other issues Appellant presented in his motion for a new trial, we perceive no error or abuse of discretion on the part of the circuit court and conclude that Appellant was not denied his right to a fair trial.

BACKGROUND

On July 15, 2011, a grand jury indicted Appellant for Mr. Hall's murder on the charges of: murder in the first degree; use of a handgun in the commission of a crime of violence; wearing, carrying, and transporting a handgun upon his person; and possession of a handgun after being convicted of a disqualifying crime. The grand jury also indicted Appellant of conspiring with codefendant Derrick Toomer to commit Mr. Hall's murder. Appellant's case was severed from Derrick Toomer's on March 11, 2013, and Appellant's first trial commenced on March 22, 2013, in the Baltimore City Circuit Court. Appellant moved for a mistrial in that proceeding, and the court granted the motion on April 1, 2013.

Appellant's second trial began on March 18, 2014. The following events transpired as the story unfolded over the six-day trial.

A. The Testimony of Hall's Fiancé

The State presented as its first witness, Ms. Faaizah Seals, who was Mr. Hall's fiancé at the time of his death. She testified that she and Mr. Hall were co-owners of Muscles Bail Bonds. Ms. Seals related that Muscles Bail Bonds was seeking a new insurer following the 2008 departure of another employee who had acted as the company surety insurer under his license as an insurance producer in Maryland.¹ Mr. Hall was looking for another person who was licensed through which Muscles Bail Bonds could be insured.²

In the early evening hours of July 29, 2008, while Ms. Seals was cooking dinner, Mr. Hall was taking a nap. Mr. Hall's phone rang at approximately 7:00 p.m., so Ms. Seals woke him up to tell him about the call. He listened to the voicemail left by the caller and prepared to leave their home. According to Ms. Seals, “[Mr. Hall] said he was going to meet up with someone named G concerning insurance....”

That evening Mr. Hall drove away in a Ford Expedition XL2—a vehicle they both shared and used in their business. After Mr. Hall did not return, Ms. Seals tried to reach him unsuccessfully on his cell phone multiple times throughout the night and, after getting no answer, she also tried a couple of hospitals to no avail. In the morning when she awoke, she found a card under the front door from homicide detective Michael Moran asking her to give him a call.

B. Detective Moran

Detective Michael Moran of the Baltimore City Police Department, Homicide Unit, was called to testify regarding his role as the primary investigating officer in this case. He testified that at 6:01 a.m. on July 30, 2008, he responded to a call notifying him that there was a deceased person in the parking lot of KIPP Academy at 4701 Greenspring Avenue. When Det. Moran arrived at the scene he observed “the deceased, Mr. Ralph Hall, face down wearing blue jeans[ and] a red polo,” and he noted that a medical technician had already pronounced Mr. Hall dead. Det. Moran also testified that, when he arrived, “[Mr. Hall] had on a pair of white tennis shoes that said Muscles on them [, and] [h]e was stiff.”

Det. Moran oversaw the collection of crime scene evidence, including photographs, measurements, and other physical evidence. Under his supervision, Baltimore City Crime Lab technicians processed the scene; however, no weapon or bullet casings were recovered. Det. Moran testified that he was also present at the autopsy of Mr. Hall, and that the Assistant Medical Examiner who conducted the autopsy recovered two projectiles from Mr. Hall's body and submitted them for ballistic analysis. Baltimore City Firearms Examiner Christopher Faber later determined that the projectiles were lead bullets of the .38/.357 caliber class.

During his evaluation of the scene, Det. Moran noticed a security camera on a nearby building “up high and ... facing towards the parking lot where the victim was found.” He directed officers to recover the whole security system from KIPP Academy so that the footage from multiple cameras could be downloaded and viewed as part of the investigation.

Det. Moran confirmed that the next day, July 31, Mr. Hall's Ford Expedition was recovered on the 2800 block of Roslyn Avenue, and towed to the crime lab where it was processed as part of the crime scene. Crime lab technicians then collected DNA samples from the vehicle.

C. The Conspiracy

Detailing his investigation into the homicide, Det. Moran recounted that “[b]ecause Mr. Hall had a badge and the cuffs and he had Muscles written on his shoes, we knew there was Muscles [Bail Bonds] on Bel Air Road.” This led the detective to contact Ms. Seals who, according to Det. Moran, was hysterical when he interviewed her. She told him that Mr. Hall received a voicemail and that an individual known as “Credit Card Mike, set this insurance up for his business because Ralph Hall needed his own insurance to start his business with the bail bonds. And that he wanted to meet this guy at 7:30.”

In his second interview with Ms. Seals, Det. Moran was informed that Credit Card Mike—now identified as Michael Hayes—believed that Mr. Hall set him up to be robbed earlier in 2008. Det. Moran then interviewed Michael Hayes, who had recently been arrested on a handgun violation. Det. Moran testified that Hayes told him that Derrick Toomer was involved in the murder. Hayes also identified one of the vehicles connected to the murder; and provided police with an address, “806 Tipton,” and a hand drawn map to where they could find the vehicle. Upon investigating the address, Det. Moran located and photographed a vehicle matching the vehicle in the security footage recovered from KIPP Academy, and that vehicle was found to be registered under the name “Darrell Toomer.”

Det. Moran also testified that, on November 12, 2008, he interviewed James Nelson, who helped him narrow the suspects to Appellant and Derrick Toomer. Nelson identified both Appellant and Derrick Toomer in photographic arrays shown to him by Det. Moran.

On March 21 and 24, the State's principal witness, James Nelson, appeared before the jury in a prison uniform. Nelson testified that he had been incarcerated twice between the time Mr. Hall was killed and Appellant's trial and that he was currently serving a thirteen-year sentence. Nelson testified that Derrick Toomer and Appellant typically drove a burgundy red Crown Victoria. Nelson also testified that he had a conversation with both Derrick Toomer and Appellant in which Appellant admitted to killing Mr. Hall. The...