Marshall v. State

MARLON MARSHALL v. STATE OF MARYLAND

No. 884

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

July 29, 2019

Circuit Court for Prince George's County

Case No. CT170546X

UNREPORTED

Graeff, Leahy, Beachley, JJ.

Opinion by Beachley, 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 Prince George's County convicted Marlon Marshall, appellant, of first-degree murder, second-degree murder, first-degree assault, second-degree assault, carrying a dangerous weapon with intent to injure, conspiracy to commit murder, and conspiracy to commit first-degree assault. The court sentenced appellant to a term of life imprisonment on the conviction of first-degree murder, a consecutive but suspended term of life imprisonment for conspiracy to commit first-degree murder, and a concurrent term of three years' imprisonment for carrying a dangerous weapon with intent to injure. All other convictions were merged for sentencing purposes. In this appeal, appellant presents the following questions for our review:

1. Did the circuit court abuse its discretion in giving a "flight" instruction to the jury?

2. Did the circuit court abuse its discretion in refusing defense counsel's request to instruct the jury that [appellant] had "an absolute right not to call witnesses?"

3. Did the circuit court err when, in response to a jury note asking what would happen if the jurors did "not all come to the same conclusion," the court responded by telling the jurors that their "verdict must be unanimous" and that they "must all reach the same conclusion?"

4. Did the circuit court err in denying [appellant's] motion for a new trial, which was based on an affidavit submitted by [appellant's] mother, who averred that, following trial, one of the jurors told her that the jury members "continuously discussed the case" prior to deliberations and that they "were inclined to vote not guilty after the first day of trial" but then changed their minds and became "inclined to find [appellant] guilty" after [appellant's] former girlfriend testified for the State?

For reasons to follow, we answer all four questions in the negative and affirm the judgments of the circuit court.

BACKGROUND

On February 7, 2017, security cameras mounted on the exteriors of two commercial buildings captured two men attacking Jamal Barnes in a parking lot near Central Avenue and Addison Road in Capitol Heights, Maryland. In the video, one of the attackers, who was clad in a gray sweatshirt with the hood up, could be seen approaching Mr. Barnes and striking him in the head. A few seconds later, the second attacker, who was wearing a "bucket hat" and carrying something in his hand, approached Mr. Barnes and struck him several times in his chest area. The two attackers then walked away, while Mr. Barnes ran in the opposite direction.

Sometime later, Officer Charles Lane of the Seat Pleasant Police Department came on the scene and found Mr. Barnes lying in the grass near where the attack occurred. According to Officer Lane, Mr. Barnes' clothes were "bloody," and he had "puncture or cut wounds on his body." Mr. Barnes was then transferred to the hospital, where he was pronounced dead. Mr. Barnes died as a result of "sharp and blunt force injuries," which included a "stab wound of the left chest." The police identified appellant as the individual in the video wearing the bucket hat and striking Mr. Barnes in the chest area. A vehicle registered to appellant appeared in security footage near where the attack occurred.

On April 13, 2017, a grand jury indicted appellant for first and second-degree murder, first-degree assault, use of a handgun in the commission of a crime of violence, wearing and carrying a dangerous weapon with intent to injure, conspiracy to commit first-degree murder, and conspiracy to commit first-degree assault. On February 16, 2018, after a four-day trial, the jury found appellant guilty of all charges. As stated above, the circuitcourt sentenced appellant to life imprisonment on the conviction of first-degree murder, a consecutive but suspended term of life imprisonment for conspiracy to commit first-degree murder, and a concurrent term of three years' imprisonment for carrying a dangerous weapon with intent to injure. Additional facts will be provided as necessary to address issues raised on appeal.

DISCUSSION

I.

At trial, appellant's former girlfriend, Kimberly Benjamin, testified that in February 2017, she and appellant were sharing an apartment and that on February 16, 2017, nine days after the attack on Mr. Barnes, they stayed together at a hotel. Ms. Benjamin explained that she and appellant were at a hotel because appellant "told [her] the police was looking for him." Ms. Benjamin testified that appellant had told her the police were looking for him the previous night and that "that information came from the lady at the rental office." Ms. Benjamin further testified that appellant told her he "wanted to get a chance to talk to a lawyer . . . before he turned himself in." According to Ms. Benjamin, she and appellant left the hotel on the morning of February 17, 2017. Ms. Benjamin dropped appellant off at "the store" and went to the couple's apartment. Later, Ms. Benjamin drove back to the store to pick up appellant. During that trip, the police stopped Ms. Benjamin and took her to the police station. A search of Ms. Benjamin's vehicle revealed "an overnight bag," which contained male and female clothing and shoes, and a knife, which was later determined to be "consistent with" the stab wound to Mr. Barnes' chest.

At the close of all evidence, the State asked the court to give a "flight instruction based on the testimony of Ms. Benjamin." Defense counsel objected, at which point the following colloquy ensued:

[DEFENSE]: Ms. Benjamin didn't say that there was any flight or anybody fled. What she said was that [appellant] heard from the rental office lady that the police had come by looking for him, and he wanted to stay in a hotel that night so that he could contact a lawyer before he turned himself in.

There was no flight, and we would object to a flight instruction to give the jury the impression that there was some guilty knowledge or evidence of guilt as to a result of staying in a hotel.

And then the next morning, they went to Denny's and had breakfast, and they came back to the place where [appellant] and Ms. Benjamin lived. And they were arrested right there in --

THE COURT: Well, that's not really what the evidence is, but okay. I'm [going] to give the flight and concealment instruction because I think it is generated by the evidence.

There is evidence of flight or concealment by saying that once he had been told that the police were looking for him, he decided to go stay somewhere else to avoid being confronted by the police. That is evidence of flight or concealment. That would be evidence of - the jury could consider it as consciousness of guilt.

Following the court's decision, appellant did not object or present any further argument on that issue. Later, the court gave the following "flight" instruction to the jury:

A person's flight on [sic] the scene immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt.

Flight or concealment under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence. You must first decide whether there is evidence of flight or concealment. If you decide there is evidence of flight or concealment, you must then decide whether this flight or concealment shows a consciousness of guilt.

Appellant did not object at the conclusion of the court's instructions to the jury.

On appeal, appellant first contends that the circuit court abused its discretion in giving a "flight" instruction based on Ms. Benjamin's testimony that appellant stayed at a hotel after learning that the police were "looking for him" following the attack on Mr. Barnes. As a preliminary matter, appellant maintains that, although defense counsel failed to renew his objection to the flight instruction at the conclusion of the court's instructions, which, ordinarily, would render his claim unpreserved, this Court "should nevertheless address the merits of the issue because counsel substantially complied with" Maryland Rule 4-325(e). As to the merits, appellant maintains that an instruction on flight is proper only if, under the facts of the case, the circumstances of the flight suggested a consciousness of guilt that was closely related to the crime charged. Appellant asserts that such an inference could not be made in his case because, according to Ms. Benjamin, appellant "did not know why the police were looking for him" and because "the alleged flight took place more than a week after the murder[.]" Appellant also asserts that, "to the extent that one could reasonably infer that [his] decision to stay in a hotel suggested flight, that inference was negated by the fact that [he] returned from the hotel the next day." Appellant therefore argues that the court erred in giving the flight instruction because it "was not applicable under the facts of the case." We hold that the court did not err.

Maryland Rule 4-325(e) states, in relevant part, that "[n]o party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection." It is undisputed that appellant failed to object after the court instructed the jury. Accordingly, his claim that the court erred in giving the flight...