Mosby v. State

ANDRE MOSBY v. STATE OF MARYLAND

No. 1842

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

October 1, 2018

Circuit Court for Baltimore City

Case No. 116099013

UNREPORTED

Arthur, Friedman, Shaw Geter, JJ.

Opinion by Arthur, 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.

On the night of March 15, 2016, Andre Mosby drove his friend to a barbershop in Baltimore City; Mosby stood outside for a few minutes while his friend shot and killed Kenneth Collins; and then Mosby drove his friend away from the scene. The State accused Mosby of acting as an accomplice to the shooting. The State theorized that the motive for the shooting arose out of a transaction, months earlier, in which Collins had paid Mosby to hook up the electric power at Collins's home so that Collins could use electricity without paying for it.

After a jury trial in the Circuit Court for Baltimore City, Mosby was convicted of second-degree murder and two, related weapons offenses. The court sentenced him to an aggregate prison term of 50 years. In this appeal, Mosby contends that the State presented insufficient evidence to show that he was an accomplice to the shooting, that the court should have excluded evidence about his participation in the energy theft scheme, and that his trial attorney rendered deficient performance.

For the reasons explained in this opinion, the judgments will be affirmed. We conclude that the State presented sufficient evidence to sustain the convictions. We will not address the admissibility of evidence of Mosby's other crimes, because that issue was not adequately raised at trial. We decline to consider whether Mosby received ineffective assistance of counsel, because that matter should be decided after a full evidentiary hearing in a post-conviction proceeding.

FACTUAL AND PROCEDURAL BACKGROUND

The following summary describes the facts established at Mosby's trial. BecauseMosby is challenging the sufficiency of the evidence to sustain his convictions, we recite these facts in the light most favorable to the prosecution. See, e.g., Davis v. State, 207 Md. App. 298, 303 (2012) (citing Moye v. State, 369 Md. 2, 12 (2002)).

A. The Prior Relationship Between Mosby and Collins

In the months before his death, Kenneth Collins participated with Andre Mosby in a scheme to steal electric power for Collins's home.

In the summer of 2015, Collins started renting a house for himself and his long-term girlfriend, Ms. Tonyale Manley-James. The owner of the house cancelled the electricity service from Baltimore Gas and Electric (BG&E). Instead of setting up a new account, Collins enlisted help from Mosby, who was a customer at the barbershop where Collins worked and who had worked for a BG&E subcontractor. Mosby offered to connect the electric power at Collins's home so that Collins could use electricity without generating a bill from BG&E.¹

Mosby visited Collins's home on a day in August or September of 2015 when Collins was at work and Ms. Manley-James was at home. After Mosby worked for a few minutes outside, the electric power began functioning at the home. Collins arranged for his girlfriend to pay Mosby $350 in cash for his services.

Around this time, Collins introduced his close friend, Emmett Edwards, to Mosby so that Mosby could give Edwards the same type of illegal electricity connection.

The connection at Collins's home functioned until BG&E shut off the electricity around the end of 2015. Mosby restored the power, and Ms. Manley-James later noticed that the entire energy meter had been removed. Ms. Manley-James was not involved in any payment at that time, nor did she know whether Mosby expected an additional payment or whether Collins made a payment to Mosby.²

Although the timing of events is unclear from the record, it appears that at some point BG&E required Collins to pay $1800 to have the power restored. Collins informed Mosby that he had been required to pay BG&E to restore the power.

Meanwhile, in early 2016, a BG&E security specialist was investigating Collins for meter fraud. Based on information provided by Collins, the investigator began to look into Mosby. The investigator learned about Mosby's employment history with a BG&E subcontractor, but he made no direct contact with Mosby.

In February 2016, Ms. Manley-James noticed some changes in Collins's behavior. He would lock the front door to the barbershop in between customers. He started driving home using a route that was different from his normal route. After arriving home, he would shine bright lights at the house and look around while she waited in the car. Collins told her that he was doing those things because he was "afraid." During this timeperiod, her sister observed that Collins became "cautious" and that he lost "at least 20 pounds."

B. The Fatal Shooting of Collins

Collins was shot to death on the night of March 15, 2016, while he was at work inside Rod's Barbershop in Baltimore City. It is undisputed that the shooter was Ignatius Lawrence, a friend of Mosby.³

Sometime after 8:00 p.m. on the evening on which the shooting occurred, Collins had called his friend Edwards to ask for a ride home from work. Edwards parked his car outside the barbershop and chatted with an acquaintance named "Travis" while waiting for Collins to finish working for the night.

During the conversation, Travis suddenly announced that "somebody" was "shooting at" Collins. Edwards looked inside the barbershop and saw a man in a teal hat firing shots at Collins, who was "trying to duck or dodge" from the shooter. Edwards heard Travis say: "They're coming out." Edwards and Travis walked away briskly and stepped into the J.J. Carry Out restaurant, located three storefronts away from the barbershop, on the corner of East Monument Street and North Port Street.

Edwards looked out the window and saw the shooter walking alongside Mosby, whom he recognized from prior interactions. Edwards saw that the shooter was leaning his head down and "trying to tuck the gun down in his waistband." Edwards saw Mosbymove towards the shooter until they were side-by-side, close enough that their arms made contact.

After Mosby walked away with the shooter, Edwards went to the barbershop and called 911. Collins died from two gunshot wounds, one in the left temple and one in the upper back. Near the body, police found two nine-millimeter cartridge cases that had been discharged from the same handgun. The gun itself was never recovered.

Inside the barbershop, the police found Collins's cell phone, which had Mosby's cell phone number saved under the name "BGE Man Dre." The police also found a pair of eyeglasses near the front door of the barbershop. Skin cells on the eyeglasses matched the DNA profile for Ignatius Lawrence.

C. Mosby's Actions Before, During, and After the Shooting

Around the time that Lawrence killed Collins, Mosby stayed near Lawrence and interacted with him extensively.

A few hours before the shooting, Mosby and Lawrence ate dinner together at the Texas Roadhouse restaurant in White Marsh. Surveillance video shows that Mosby drove his Ford Expedition into the parking lot at 6:38 p.m. with Lawrence as a passenger. The two men walked into the restaurant, sat together near the bar, and ordered food and drinks. No one else joined them. Mosby drove away at 8:19 p.m., with Lawrence in the passenger seat.

Mosby and Lawrence travelled into Baltimore City to the area near Rod's Barbershop, which is located on East Monument Street between North Milton Avenueand North Port Street. A closed-circuit television (CCTV) camera is positioned at the intersection of Milton Avenue and Monument Street. The camera rotates a full 360 degrees approximately every minute, and the storefront to Rod's Barbershop is in view for about 20 seconds during each minute of the recording. The recording reveals in substantial detail the conduct of Mosby and Lawrence on Monument Street around the time of the shooting.

The recording shows that Mosby and Lawrence arrived at the intersection at 8:52 p.m., wearing the same clothes they had been wearing earlier in the evening. Mosby's Ford Expedition was not in view. They arrived at the same corner on foot from different directions: Mosby walked on Milton Avenue, while Lawrence walked on Monument Street. As Lawrence walked past the barbershop (where Edwards and Travis were standing), he stopped momentarily and looked inside before he continued walking.

For the next few minutes, Mosby and Lawrence stood together on the corner of Monument Street and Milton Avenue, just outside of Panda Chinese & American Food, a takeout restaurant located four storefronts away from the barbershop.⁴ Initially, Lawrence stood a few feet away from Mosby while Mosby was holding a cell phone to his ear. A minute later, they were standing closer together, leaning towards each other with their hands in their pockets.

At 8:55 p.m., Lawrence entered the barbershop alone, out of view of Edwards andTravis. At the same time, Mosby remained at the street corner, looking in the direction of the barbershop. Mosby relocated to the opposite side of Monument Street, directly across from the barbershop. He stayed there for a minute, talking on his phone, and at one point stopped to turn and look in the direction of the barbershop. Mosby then walked back to the corner outside of the Panda takeout restaurant and again turned to look in the direction of the barbershop.

At 8:59 p.m., just as Edwards was fleeing from the barbershop, Mosby moved to the other side of the block and was walking away from the barbershop. Mosby, still holding his phone, turned twice to look back towards the barbershop. At that point, Lawrence walked out of the barbershop while tilting his head downward and holding one hand at his side. Mosby took a...