Jordan v. State

MICHAEL ANTHONY JORDAN v. STATE OF MARYLAND

No. 0208

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

August 18, 2016

UNREPORTED

Woodward, Reed, Raker, Irma S. (Retired, Specially Assigned), JJ.

Opinion by Raker, 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 Anthony Jordan was convicted in the Circuit Court for Prince George's County of first-degree felony murder, second-degree murder, robbery with a dangerous weapon, first-degree assault, use of a handgun in the commission of a crime of violence, theft of a motor vehicle valued between $1,000 and $10,000, unauthorized use of a vehicle, and carrying a handgun.

Appellant presents the following questions for our review:

"1. Did the circuit court err in denying multiple motions for mistrial?

2. Did the trial court err in limiting defense counsel's cross-examination?

3. Did the trial court err in [not] giving Maryland Criminal Pattern Jury Instruction 3:13, concerning witness promised benefit?

4. Was the evidence insufficient to sustain the conviction for theft?"

We shall hold that the trial court did not err, and thus, we shall affirm.

I.

Appellant was indicted by the Grand Jury for Prince George's County for murder, robbery with a dangerous weapon, use of a handgun in commission of a crime of violence, conspiracy to commit robbery with a deadly weapon, first degree assault, conspiracy to commit first degree assault, theft of property with a value over $1,000 but less than $10,000, unauthorized use of a motor vehicle, wearing a handgun, transporting a handgun on or about his person, and knowingly participating in illegal possession of a regulated firearm.¹ He was sentenced to life imprisonment, with all but 80 years suspended, for the murder; a term of imprisonment of twenty years, with all but ten suspended, consecutive, for the handgun use; a term of imprisonment of ten years, with all but five suspended, consecutive, for theft; plus five years probation.

The charges arose from an event which occurred on October 24, 2011, when Alonzo Guyton was shot and killed during a street robbery. The Grand Jury indicted appellant along with two accomplices, Lorenzo Carlton and William Knight. Although all three were scheduled to be tried jointly, during voir dire, Carlton entered a guilty plea to second degree murder. The State proceeded to try appellant jointly with co-defendant Knight.

Although trial began in April 2013, the first venire was dismissed because there were not enough prospective jurors. On December 3, 2013, the trial commenced again and voir dire began and continued over seven days. Because of the large number of jurors requested by the trial judge, 300 prospective jurors, the court divided the venire into two different groups designated the "orange" and "white" panels. The court conducted voir dire of each panel for three days (the orange panel on December 3, 4, and 9; the white panel on December 5, 6, and 11, 2013), then combined those remaining for final voir dire and selection on the seventh day.

After voir dire of the orange panel concluded on December 9, Carlton entered a guilty plea to second-degree murder, pursuant to a plea agreement. When the final day of voir dire of the white panel began on December 11, Carlton and his counsel were no longer in the courtroom. Counsel for Knight moved to dismiss both venire panels. He argued that the prospective jurors had "come to know the co-defendants as co-defendants," and "would look at this situation and now come to the conclusion that one of the co-defendants has now accepted a plea." According to Knight's counsel, "the jury will now have an inference, an unallowable inference that the remaining co-defendants of these conspiracies are also guilty." When the trial court asked for appellant's response, his counsel renewed prior requests to sever appellant's trial from Knight's, citing instances raised previously of inappropriate courtroom behavior by Knight and Carlton and the prejudicial impact of the co-defendants' visible tattoos. In the ensuing colloquy, counsel asked that appellant be tried separately by a jury selected from one of the two panels, but did not request a mistrial:

"[APPELLANT'S COUNSEL]: [B]efore I join in [Knight's motion to dismiss the jury panels], which I may do, I would like to if nothing else make a couple of statements that lead me to at least a different request for relief preliminarily.

Throughout the entire process, I have asked on numerous occasions to have the defendants separated. And quite frankly, ironically the reason that I asked to have [appellant] severed from Mr. Knight and Mr. Carlton was in large part because of [the] presence of Mr. Carlton.

The particularly, I think, at this point we are well chronicled in the record, the looks, the tattoos, the banter between defendants and the like and—

THE COURT: But who has had or has the tattoos?

[APPELLANT'S COUNSEL]: [Appellant] has two that Mr. Knight has one on his right hand.

THE COURT: Okay.

[APPELLANT'S COUNSEL]: But the tattoo of a marijuana leaf and the tattoo of the money bag with the word M.O.B., mob, the letter O with a cross hair through it belongs to my client.

Nonetheless, what I was focusing on at least as it relates to my argument was the presence of Mr. Carlton has always been an issue, a very serious issue, because I think at the end of the day, based on the feedback of the jurors, the potential jurors over several days over several months of attempted jury selection, that [appellant] is prejudiced.

The State most recently made a plea offer, and I would say a testimony inducing plea offer, because up until this third [sic] attempt at jury selection, the offer was always something as related to murder, life suspend all. And that would be first degree murder.

As the Court is well aware now, the State changed their position and made an offer of second degree murder where Mr. Carlton who accepted that offer will not need the Governor's signature to be released.

I think the timing of the offer unfortunately to [appellant]'s detriment has caused this situation where Carlton bet on a plea. He took it. He who had been sitting with us for three days of a jury selection on one panel, three days on another panel.

He is now absent, and as soon as a jury panel walks in here and sees that Mr. Carlton is absent, as [counsel for Knight] pointed out, they will reach one of a few conclusions. Some of them are not even worthy of consideration, that he escaped from jail. Nobody is really going to reach that conclusion.

That he died, I don't think anybody is going to reach that conclusion either. I think that one conclusion that will likely be reached and is most foreseeable, as [counsel for Knight] pointed out, is that Mr. Carlton, who is charged as a co-conspirator under a theory of felony murder where we anticipate the jury instructions of life, aiding and abetting, accomplice liability, and the like.

[The Prosecutor's] proposed argument that the three of them were acting as a team, that they were acting as concerted principals associated with felony murder and the like and suddenly Mr. Carlton isn't there.

And if one does reach that logical conclusion, the very foreseeable and likely conclusion that Carlton pled, then those jurors are going to logically conclude that Carlton pled because he was there.

The three of them in together throughout the voir dire process, the three of them are charged together. [The Prosecutor] is making a big production about the three of them being a team doing this, that, and the other.

The damage is already done. And I appreciate the fact that the State has made such an inducing plea offer, but what has happened as a result of their generosity is that [appellant] has been actually further prejudiced. And I don't think we get a jury pool that is going to be fair and impartial.

And we hearken back to any number of the panels in our history, and you see that jurors will hold the three collectively [sic] defendants responsible for the actions of one or two.

Stick figures, drawings, banter, demeanor, whether or not somebody looks like they're serious, whether somebody smiles, all to the difference of the three collectively.

Now we have a situation whereby his absence, not his presence anymore, his absence, Mr. Carlton has further complicated things in his absence.

I have real concerns and now at this point it's more a totality of the circumstances argument. I, in writing, I have laid out my reasons for requesting severance. Orally I have done the same. And a lot of it's been fluid and then based on input from the jurors.

But now I have a situation where we know what is in a lot of the jurors' minds. We know that our clients are under the selective microscope of our proposed panel. And now, we do have this pink elephant, as [counsel for Knight] puts it, which is going to be . . . the third defendant that will be the one sitting at counsel table.

I would almost rather have a pink elephant at counsel table that would detract from Mr. Carlton's absence, but we don't. And the reality is there is no cure at this point.

I say that with this caveat, because I tried to think about judicial economy. . . .

But it's the Court's or the—ultimately the economy associated with not bringing out too many witnesses or taking them out of their daily lives. And there is nothing convenient about this trial. We have learned that quickly, well, actually over a painstakingly long period of time.

And we're all suffering as a result, but when we look at . . . two young men presumed innocent of a crime, no more heinous a crime, I don't think that judicial economy is necessarily the issue anymore.

If it is the issue, if it is what drives everyone i[n] decision making, I would suggest that you have two panels and you have two defendants. At

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