Morris v. State

KENNY MORRIS v. STATE OF MARYLAND

PATRICIA JOHNSON v. STATE OF MARYLAND

No. 1373

No. 1078

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

June 22, 2016

UNREPORTED

Graeff, Kehoe, Arthur, JJ.

Opinion by Graeff, 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.

Kenny Morris and Patricia Johnson, appellants, were tried jointly in the Circuit Court for Charles County on charges relating to the assault and attempted murder of Tyrone Jeter. On February 6, 2015, at the conclusion of a five-day trial, a jury found Mr. Morris guilty of attempted second degree murder, first degree assault, second degree assault, and openly wearing or carrying a dangerous weapon with intent to injure. The court sentenced Mr. Morris to 30 years, all but nine years suspended, for the conviction of attempted second degree murder, one year, concurrent, for the conviction of carrying a deadly weapon with intent to injure, and 4 years of probation following his release.¹

The jury found Ms. Johnson guilty of second degree assault. The circuit court sentenced her to 10 years, all but 60 days suspended, and 5 years of probation upon release.

On appeal, Mr. Morris presents six questions for this Court's review, which we have modified slightly, as follows:

1. Did the circuit court err in not instructing the jury on imperfect self-defense, imperfect defense of others, and imperfect defense of habitation?

2. Was the evidence insufficient to convict Mr. Morris of wearing or carrying a deadly weapon openly with intent to injure?

3. Did the circuit court err in emphasizing to the jury that Mr. Morris elected not to testify?

4. Did the jury render legally inconsistent verdicts by convicting Mr. Morris of attempted second degree murder but acquitting him of attempted voluntary manslaughter?

5. Did the circuit court err in permitting two witnesses to reference Ms. Johnson's pre-arrest silence?

6. Should this Court recognize plain error due to the admission of extrinsic evidence of prior inconsistent statements and prior consistent statements?

Ms. Johnson presents two questions for this Court's review. The first question is the same as Mr. Morris' fifth question, which she phrases as follows:

Did the trial court err by admitting evidence that Ms. Johnson chose to remain silent when questioned by Detective Williams?

Ms. Johnson's second question presented is as follows:

Was the evidence sufficient to sustain Ms. Johnson's conviction of second degree assault?

For the reasons set forth below, we shall reverse the judgments of the circuit court with respect to Mr. Morris, and affirm the judgment of the circuit court with respect to Ms. Johnson.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Jeter's Testimony

The prosecution and the defense presented two very different scenarios of the events that occurred on January 31, 2014, in a townhouse community in Waldorf, Maryland. Mr. Jeter testified that he lived with his girlfriend, Janice Johnson ("Janice"), three doors down from Janice's sister, Ms. Johnson.² Mr. Jeter characterized his relationship with Ms. Johnson as "very close," stating that he would spend time with her three or four times per week. Mr. Morris, Ms. Johnson's longtime boyfriend, frequently would visitMs. Johnson and stay at her house. Although Mr. Jeter and Mr. Morris typically did not spend time together, he characterized their relationship as cordial.

The townhouse community in which Mr. Jeter and Ms. Johnson lived provided assigned parking to each house in the development, which could be identified by the owner's address painted on the parking space. There also were "open" parking spaces that were not assigned to any particular person and "where anybody can park." Notwithstanding the official parking system, Mr. Jeter was aware of certain parking spaces that typically were used by Ms. Johnson and her daughter, Brianna Williams, which he avoided as a courtesy.

On January 31, 2014, at approximately 5:45 p.m., Mr. Jeter returned home after work and parked in an "open" parking space. At approximately 6:00 p.m., Ms. Johnson and Mr. Morris rang Mr. Jeter's doorbell. Mr. Jeter answered his front door and asked what was wrong. Ms. Johnson asked him why he was "parked in Kenny's parking spot." Mr. Jeter testified that he was "shocked." He replied: "[W]hat, are you kidding? [T]hat's an open parking spot. . . . [I]s this your idea or his idea?" Ms. Johnson replied that it was her idea. Mr. Jeter then stated: "Patty, it's an open parking spot. [E]verybody parks there. It's just an open spot." He explained that he normally parks in two or three other parking spaces before using that spot, but those were "always taken." He claimed that he "probably parked there hundreds and hundreds of times."³

At that point, Mr. Morris became "irate." He repeatedly swore at Mr. Jeter and stated that he would "kick your f'in [sic] ass." Mr. Jeter told Mr. Morris to leave, but Mr. Morris continued to curse at him. Eventually, they left. Mr. Jeter testified that, although Mr. Morris became very loud, he remained calm during the exchange at his front door and simply told Mr. Morris "that it was ridiculous for grown people to be arguing over a parking spot that doesn't belong to anybody."

After Ms. Johnson and Mr. Morris left, Mr. Jeter called Janice because he "knew that if anybody could control [Ms. Johnson,] she could." He then put on his shoes and went outside to verify that he was properly parked and to make sure no one had vandalized his car. Mr. Jeter was disturbed by his exchange with Ms. Johnson, stating that they were "just so close" and he "just didn't understand" why she would act that way. He decided to knock on her door "[j]ust to make sure she was okay" because he "knew it wasn't her idea to come there, although she said it was." When Ms. Johnson answered her door, he asked her "what's going on? Are you okay?" She responded that she was. They talked for approximately 30 seconds before Mr. Morris came to the door yelling and swearing at him. Mr. Jeter then stated: "Kenny, . . . we're grown. I mean, you know better than this. We know better than this. It doesn't make sense." At that point, Mr. Morris calmed down. He retrieved a white bucket from inside the house, brought it outside onto Ms. Johnson's front porch, and sat down on the bucket. The three began to talk in a cordial manner.

Mr. Jeter stated that everyone was "acting like kids over a parking spot." Mr. Morris stated that he "figured [Mr. Jeter] was being disrespectful" by parking in that spot, to whichMr. Jeter replied that it was not his intention to be disrespectful. After about two minutes of discussing the parking situation, Ms. Johnson opened her front door and motioned for Mr. Jeter to come inside. "She walked in first and she opened the door so [he] walked in behind her." Mr. Morris also came inside, and at that point, all three were standing in the foyer just inside Ms. Johnson's house.

The conversation about the parking situation continued in the foyer, with Mr. Jeter stating that their argument was foolish, and he loved Ms. Johnson and her family. Ms. Johnson then became "very loud" and yelled: "[W]ell, Kenny is my family, too." Mr. Jeter then stated: "I know he is. I'm not saying that. [B]ut you are arguing over a parking space that doesn't even belong to him. He doesn't live here." Ms. Johnson replied: "[W]ell, he does f-in' [sic] live here." Mr. Jeter repeated that Mr. Morris did not live there but only visited Ms. Johnson. At that point, Ms. Johnson walked up to Mr. Jeter, got right in his face, and pushed him in the chest three times with both of her hands.⁴ When Ms. Johnson came at Mr. Jeter a fourth time, he pushed her, and she fell backwards onto the floor. He testified that he did not feel like he needed to defend himself against Ms. Johnson, but rather, "it was just like a . . . reflex, an instinct . . . to get somebody off of you. That's all it was." Mr. Jeter testified that Mr. Morris was right next to him when he pushed Ms. Johnson.

Ms. Johnson then stood up and yelled: "I can't believe you put your fucking hands on me." Mr. Jeter turned around and was attempting to walk out of Ms. Johnson's house when Mr. Morris punched him in the side of his face with his right hand. He did not recall seeing a knife at the time. Mr. Jeter raised his arms to protect himself and tried to leave, but Mr. Morris again attacked him from behind, jumping onto Mr. Jeter's back. At the same time, Ms. Johnson continued to "get [him] from the front," and he remembered "trying to push her off" and "get her hands off" of him. Then, "out of the corner of [his] eye," Mr. Jeter saw that Mr. Morris had a knife. Mr. Jeter did not know where the knife came from, and he did not see it until after Mr. Morris had punched him and latched onto his back, but before they "tumbled to the floor."⁵ Mr. Jeter tried to turn around and grab Mr. Morris' hand to avoid being stabbed by the knife, but he was unable to do so because Mr. Morris was holding him and he was still struggling with Ms. Johnson.

Mr. Jeter and Mr. Morris then "rolled around on the ground for a while." At some point during the struggle, Mr. Jeter backed up into Ms. Johnson's front room. Mr. Jeter "kept backing up," pushing Mr. Morris into some furniture in an attempt to get Mr. Morris off his back.

While Mr. Jeter was on the ground, Ms. Johnson "kicked at [him] like twice. But other than that she wasn't involved at all." On cross-examination, Mr. Jeter stated: "Shekicked me twice, but it didn't hurt me." Defense counsel asked whether it was a violent kick, and Mr. Jeter responded: "Well, not to me it wasn't, but she did kick me."⁶ He clarified that Ms. Johnson kicked him in the "shoulder area" when he was lying on the ground on his stomach with Mr. Morris on top of him.

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