McPherson v. Balt. Police Dep't

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KENNETH MCPHERSON, et al., Plaintiffs, v. BALTIMORE POLICE DEPARTMENT, et al., Defendants.

CIVIL No. SAG-20-0795

United States District Court, D. Maryland

August 3, 2023

MEMORANDUM OPINION

Stephanie A. Gallagher, United States District Judge.

This case arises out of the arrest, prosecution, and conviction of Plaintiffs Kenneth McPherson and Eric Simmons (collectively “Plaintiffs”) for conspiracy to murder Anthony Wooden in 1984. Plaintiffs' convictions were vacated in 2019, after their attorneys and the Conviction Integrity Unit (“CIU”) of the Baltimore City State's Attorney's Office filed a Joint Petition for Writ of Actual Innocence. On March 26, 2020, Plaintiffs filed a Complaint against the Baltimore Police Department (“BPD”) and five individual defendants who served as BPD detectives during the investigation of Wooden's murder. This Court dismissed the claims against all but two of those individual detectives: Robert Patton and Frank Barlow (collectively the “Officer Defendants”). ECF 34. Presently, the Officer Defendants have filed a Motion for Summary Judgment,^[1] ECF 92, Plaintiffs opposed, ECF 105, the Officer Defendants replied, ECF 112, and Plaintiffs filed a surreply with leave of court, ECF 116. After reviewing the motion and related briefing, this Court held a hearing on the motion on May 8, 2023. At the hearing, this Court raised an evidentiary issue, to which the parties have provided supplemental, post-argument briefing. ECF 122 (Plaintiffs' Memorandum); ECF 123 (Officer Defendants' Response). Upon request by this Court, ECF 128, the parties then provided briefing on some additional evidentiary issues. ECF 129 (Plaintiffs' Supplemental Briefing); ECF 134 (Defendants' Supplemental Briefing); ECF 135 (Plaintiffs' Reply). After consideration of all of the above briefing, associated exhibits, and arguments for the reasons that follow, the Officer Defendants' Motion for Summary Judgment, ECF 92, will be GRANTED.

I. BACKGROUND

The Night of the Murder

On August 31, 1994 at approximately 12:30 a.m., Anthony Wooden was shot in the head and murdered during an exchange of gunfire near the intersection of North Washington Street and Federal Street in Baltimore City.^[2] ECF 93-2 at 3. A Baltimore Police Officer on patrol in the area heard the gunshots and responded, locating the victim lying face down on the sidewalk near the northern end of a vacant food warehouse building. Id. at 3, 5. The officer observed a red baseball hat with a bullet hole through it and a blue duffle bag near the victim's body. Id. The officer called for emergency transport and assistance from the homicide unit. Id. at 4. Shortly thereafter, Defendant Patton-the lead investigator on the case-and another homicide unit officer arrived and began to investigate. Id. at 28; ECF 93-4 at 452-53; ECF 105-20 at 6, 16:5-8.^[3] The detectives' notes reflect that they spoke at the scene with at least three eyewitnesses who saw bits and pieces of the night's events: Crystal White (located two blocks north of the murder), Sandra Jackson (around the corner from the murder), and James Martin (across the street from the murder). ECF 93-2 at 60, 69, 117; see also 93-3 at 2. BPD then transported four potential witnesses-White, Jackson, and two relatives of the victim-to the homicide office of the BPD's Criminal Investigations Division (“CID”) for formal interviews. ECF 93-4 at 453; ECF 93-2 at 29.

At the CID at approximately 1:20 a.m. that morning, Defendant Barlow interviewed Crystal White, who had been sitting outside of her residence at the time of the homicide, roughly two blocks north of where the shooting occurred. ECF 93-2 at 68. According to the detective's handwritten notes, White saw two men facing each other on the northeast corner of Federal and Washington Street just before the victim began to run north on Washington Street. Id. at 69. She reported that “the shooter had his arms out and was holding something pointed in the direction of the [victim].” Id. She reports hearing “four gunshots, a pause and then four or five more gunshots . . . while [victim] was on the ground the shooter fired 3-4 more shots.” Id. at 68. She witnessed the victim fall after the fifth gunshot. Id. She reported witnessing the shooter flee east on Federal Street, but she was unable to determine the shooter's identity. Id. at 69.

Defendant Barlow interviewed Sandra Jackson at approximately 1:50 a.m. ECF 93-2 at 60-61. According to the handwritten notes of her interview, Jackson was standing with two friends near the intersection of North Wolfe Street and Federal Street (around the corner southwest from where the murder would take place). Id. at 61. Around fifteen minutes before the shooting, she reported witnessing three men walk past her heading east on Federal Street and noted that a gun was passed from one man to another. Id. at 61, 63. She watched the three men join up with two men already at the intersection of Federal Street and Washington Street. Id. at 62. At some point, two of the five men departed, heading south on Washington, and one man headed east on Federal Street. Id. The remaining two men began to run north on Washington Street and one of them began firing a firearm. Id. After multiple gunshots, one of the men ran back past her on Federal Street, holding a “large black handgun.” Id. at 63. She provided detailed descriptions of the three men who walked past her, and also noted that she recognized one of the men as the individual who had robbed her niece a few weeks prior. Id. at 64-66.

Aside from these two witnesses, the detectives at the CID interviewed the victim's sister and the victim's girlfriend. Id. at 53. Neither had been present during the shooting. Id. at 9. This concluded the interviews on the night of the murder.

Interview with Diane Bailey and Her Daughter

The homicide file reflects that, approximately twenty-four hours later, in the early morning hours of September 1, 1994, Diane Bailey and her daughter, Keisha Thompson, contacted the homicide office to report that they witnessed Mr Wooden's murder. Id. at 10. Bailey lived at 1421 Washington Street, located on the third floor of her building diagonally opposite to Lin's^[4] Carryout. ECF 93-3 at 2; ECF 93-4 at 603. The typed police notes of her interview are as follows:

Witness stated that she was sitting in her daughter's third floor bedroom by the window when she and her daughter heard a subject known to her as “JR” [Plaintiff McPherson] yell out, “Marcus, go get the guns, go get the guns.”

Witness stated by the time the subject “JR” said go get the guns the second time the witness and her daughter were both in the window looking out.

Witness stated that when she looked out the window she saw “Country” [Nicholas Richards] “Whitey” [Daniel Ellison], “JR,” and another guy who she did not know his name, but has seen him before and knows that he is “JR's” brother and believes his nickname is “Black” [Plaintiff Simmons].

The witness stated that they were all standing in front of Lin's Carryout, which is located at the intersection of Oliver and Washington Street on the even side, northwest corner.

Witness stated that Marcus was walking across the street and away from the area where the subject “JR” and the others were standing. . . . The witness stated about two to three minutes later she and her daughter saw Marcus crossing back over to the even side of the street and walking back to the area where “JR,” “Country,” and “Whitey” and “JR's” brother were all standing.

Witness stated that Marcus was carrying a brown paper bag when she saw him crossing the street.

The witness stated at that point Marcus approached the other subjects with the bag. The witness indicated that Marcus held the bag while “JR” reached into the bag and removed a handgun. And then “Country” reached into the bag and pulled out a gun. And then “Whitey” reached in [and] pulled out a gun.

The witness indicated that “JR's” brother kept reaching into his rear waist area as if he already had a gun.

Witness stated that after everyone reached into the bag and retrieved [their] guns Marcus held onto the bag and “Country” walked to the Oliver Street side of Lin's Carryout and “JR” and his brother, “Whitey” and Marcus stood in front of Lin's Carryout on the Washington Street side.

Witness stated the next thing she and her daughter saw was three guys come around the corner onto Washington Street from Oliver Street. The witness stated that it did not appear that the three guys were together. She stated that one of the three guys who was wearing a red hat and carrying a bag on this shoulder was several feet in front of the other two subjects who appeared to be walking together.

The witness stated that the three guys turned up Washington and were walking in the direction of Federal Street.

The witness indicated it was at this time “Country” walked from the side of Lin's Carryout to the front where “JR,” “Whitey,” Marcus, and “JR's” brother were all standing. The witness stated that when “Country” walked to the front of Lin's Carry Out he yelled out and said “Hey” to the three guys that had just turned onto Washington Street. . . . [Next,] the two guys who were in the back of the one guy who was wearing the red hat started running and “Country, “Whitey,” “JR” and “JR's” brother and Marcus all started running after the two guys.

The witness stated it was during this same time “Country,” “Whitey”, and “JR” and “JR's” brother all pulled out [their] guns and started shooting as they chased the two guys down the street.

The witness stated that the guy in the red hat who was carrying the shoulder bag did not start to run until the shooting started. The witness stated that the three guys all ran up Washington Street towards

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