Morris v. State, 0739

CHARLES MORRIS v. STATE OF MARYLAND

No. 0739

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

March 9, 2017

UNREPORTED

Berger, Arthur, Reed, JJ.

Opinion by Reed, 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 Baltimore City convicted Charles Morris, appellant, of second-degree murder and related offenses. The court sentenced appellant to an aggregate term of imprisonment of 50 years. Appellant noted an appeal and presents three issues for our review:

1. Did the trial court err in admitting mugshots of Appellant?

2. Did the circuit court abuse its discretion in permitting a witness for the State to testify that she went to the police after receiving threats?

3. Did the sentencing court impermissibly consider Appellant's history of arrests that did not result in convictions and his decision to go to trial?

For the reasons that follow, we answer all three questions in the negative and, accordingly, affirm the judgments of the trial court.

BACKGROUND

Around 11:00 p.m. on the night of February 18, 2013, Latosha McKnight was at home watching television. She was soon joined by her friend Dave Armstrong. Armstrong and McKnight spoke about purchasing marijuana from appellant, whom they also knew as "Man." McKnight attempted to call appellant "two or three times" but did not get a response.

Then, through her apartment window, McKnight saw appellant approaching the building, and she told Armstrong. Armstrong went into the hallway of McKnight's apartment building to speak with appellant. McKnight heard appellant and Armstrong arguing; appellant accused Armstrong of "disrespecting" him. Because this argument wasoccurring right outside McKnight's door, she opened it, told Armstrong and appellant to quiet down, and went back inside.

Suddenly, McKnight heard a "pop," followed shortly by appellant and Armstrong entering her apartment. Appellant asked Armstrong if he hit him. Then, the two went back into the hallway. McKnight called 911 and said that someone had been shot.¹ McKnight went into the hallway to check on Armstrong. When McKnight opened her door, she saw Armstrong lying on the ground, bleeding, and appellant was coming back in the building from outside.

At the same time that McKnight opened her door, her upstairs-neighbor, Deneen Craig, was coming downstairs asking "what the f [sic] was going on." Craig stated that she was asleep and woke up when she heard a commotion in the hallway. Craig tried to help Armstrong, and she noticed that Armstrong was holding a $10 bill in his hand. At some point - Craig stated that it was about a minute after she came downstairs - appellant came into the hallway and also tried to assist Armstrong. McKnight testified that appellant was apologizing to Armstrong and saying, "Don't die on me. Don't die on me. He pulled a knife. He pulled a knife." Appellant was also telling Armstrong to "hold on."

Police and emergency responders arrived shortly thereafter - indeed, at about the same time as appellant, according to Craig - and transported Armstrong to the hospital where he was later pronounced dead. An autopsy revealed that Armstrong died of a single bullet that entered his body on the left side of his chest, near the armpit, punctured his leftlung, and exited through his back near the spine. Dr. Carol Allen, the medical examiner, stated that Armstrong would have had significant blood loss, and there was no stippling.²

Detective Gregory Boris responded to the scene of the shooting and led the investigation.³ In securing the hallway of the apartment building, Rodney Montgomery, a crime laboratory technician, recovered a metal fragment, as well as a partially opened knife. McKnight indicated that Armstrong habitually carried a knife and identified the recovered one as Armstrong's. Additionally, despite the nature of Armstrong's wound, police did not recover a firearm.

That night, Detective Boris interviewed McKnight, Craig, and appellant at McKnight's apartment. McKnight testified that she was not truthful with police at this time because she was scared; appellant was sitting on her couch while she spoke with Detective Boris. A couple of days later, however, McKnight went to the police because "[p]eople from the complex" were threatening her. McKnight told Detective Boris that appellant shot Armstrong over an argument. Detective Boris had McKnight identify appellant in a photographic array, and McKnight indicated that appellant was the shooter. Police also had Craig identify appellant in a photo array, and she wrote that she came downstairs in response to a gunshot; appellant arrived about a minute after she did.

The jury acquitted appellant of first-degree murder, but convicted him of second-degree murder, use of a handgun in the commission of a crime of violence, wearing/carrying a handgun, and possession of a firearm by a prohibited person. The court merged appellant's conviction for wearing/carrying a handgun into the other firearms offenses and sentenced appellant to an aggregate prison sentence of 50 years. Appellant noted this appeal.

We will present more facts as necessary below.

DISCUSSION

I. EVIDENTIARY ISSUES

A. Parties' Contentions

Appellant contends that the trial court committed two errors concerning the admission of evidence. First, appellant argues that the admission of the photographic arrays in which McKnight and Craig identified appellant was either irrelevant or relevant, but unduly prejudicial. Appellant contends that his picture in the arrays is clearly a mugshot and may have led the jury to conclude that he had a criminal record, thereby depriving him of a fair trial.

Second, appellant argues that the court erred in permitting McKnight to testify that she went to police a few days after the incident because she received threats. Appellant contends that McKnight's testimony amounted to inadmissible hearsay. Alternatively, appellant concedes that McKnight's testimony may not have been offered to prove the truth of the matter asserted, but it may have compelled the jury to assume that he made the threats to McKnight, and the testimony was, therefore, overly prejudicial.

The State responds that the trial court committed no error as to the admission of these pieces of evidence. The State contends that the photographs used in the arrays were not obviously mugshots, and, moreover, appellant's identity as the shooter was at issue in this case. Accordingly, the State argues that the arrays were probative and relevant.

Furthermore, the State contends that McKnight's testimony was not hearsay because it was not offered to prove the truth of the matter asserted. Rather, McKnight testified about the threats in order to explain why she went to the police and also to rehabilitate her credibility in the face of a prior inconsistent statement.

B. Standard of Review

This Court has noted that we utilize a two-step process to review a court's decision to admit evidence: "'First, we consider whether the evidence is legally relevant, a conclusion of law which we review de novo.'" Smith v. State, 218 Md. App. 689, 704 (2014) (quoting Brethren Mut. Ins. Co. v. Suchoza, 212 Md. App. 43, 52 (2013)). If we determine that the evidence is relevant, then we determine whether the court, nevertheless, abused its discretion in admitting it. Id. (citing Suchoza, 212 Md. App. at 52-53).

"'The admission or exclusion of evidence is a function of the trial court which, on appeal, is traditionally viewed with great latitude.'" Halloran v. Montgomery Cnty. Dep't of Public Works, 185 Md. App. 171, 195 (2009) (quoting Commercial Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 641 (1997)). "'A trial court abuses its discretion only when no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.'" Baker v. State, 223Md. App. 750, 759 (2015) (quoting Donati v. State, 215 Md. App. 686, 708-09 (2014), cert. denied, 438 Md. 143 (2014)).

C. Analysis

i. The Photographic Arrays

As a preliminary matter, the State contends that appellant's contention as to the photographic arrays is not preserved for our review. The Maryland Rules require an objection when a question is asked or objectionable evidence is offered. See Rule 2-517(a); Rule 5-103(a)(1); Holmes v. State, 119 Md. App. 518, 523 (1998). If a party fails to make a contemporaneous objection, then, ordinarily, the issue is waived for appellate review. See Rule 8-131(a).

In this case, appellant objected to the photographic arrays in a pretrial motion, which the trial court denied. As such, to preserve the issue for appeal, appellant was required to object again when the arrays were offered as evidence at trial. See Pulte Home Corp. v. Parex, Inc., 174 Md. App. 681, 763 (2007) (citing Lewin Realty III, Inc. v. Brooks, 138 Md. App. 244, 261 (2001), aff'd 378 Md. 70 (2003)), aff'd 403 Md. 367 (2008).

The following occurred during McKnight's direct examination:

[STATE'S ATTORNEY]: Let me show you what's been marked for identification as State's Exhibit 6 and I'll ask you to take a look at that (inaudible). Do you recognize that?

[MCKNIGHT]: Yes.

Q: What is that?

A: Yes. Um, a photo array. It has six people on it.

Q: Did you recognize any - who showed you that?

A: Detective Boris.

Q: Okay; and do you recall how he showed it to you?

A: Yes.

Q: How did he show it to you?

A: Face down.

Q: Okay, so the pictures were face down?

A: Yes.

Q: Okay; and there's a caption.

[] Which, if I may read, Your Honor? These -

THE COURT: Um, no; you may not read.

[STATE'S ATTORNEY]: Uh, it begins with -

THE COURT: But, if she wants to read -

[STATE'S ATTORNEY]: Sure.

[] It begins with: The six photographs. Can you read that for me, please?

[MCKNIGHT]: The six photographs or [sic] this

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