Nelson v. State

LINDZELL NELSON v. STATE OF MARYLAND

No. 258

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

September 13, 2019

Circuit Court for Baltimore City

Case No. 24-C-17-003335

UNREPORTED

Berger, Arthur, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Kenney, 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.

At issue in this case is the admission at trial of statements made by Lindzell Nelson, appellant, to police officers during their investigation of a shooting in Baltimore City, as well as testimony of the State's inability to locate for trial a presumed victim of the shooting. Mr. Nelson appeals his conviction for two counts of reckless endangerment and one count of unlawfully carrying a handgun. He asks four questions, which we have slightly rephrased:

I. Was his pre-arrest refusal to answer police questions relevant to a consciousness of guilt, and, if so, was its probative value substantially outweighed by its unfair prejudice?

II. Was his refusal to submit a DNA specimen relevant to a consciousness of guilt and, if so, was its probative value substantially outweighed by its unfair prejudice?

III. Was it error to admit evidence that a victim was a missing witness when there was no evidence of why he was missing at trial?

IV. Did the cumulative effect of evidentiary errors deprive Mr. Nelson of a fair trial?

For the following reasons, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after midnight, on February 8, 2017, City Watch Cameras recorded four men exchanging gunfire near the corner of Pennsylvania Avenue and Laurens Street in Baltimore.¹ Officers Adrian Featherstone and Gregory Smith, who were on patrol in that area, heard shots and arrived at that location one minute later. They found Mr. Nelsonand Malik Whitehead on the ground suffering from gunshot wounds. Mr. Whitehead, who was under the front end of a vehicle with a gunshot wound in his back, was losing consciousness when the EMTs arrived. Both Mr. Whitehead and Mr. Nelson were transported to a hospital. Officer Thomas Carter and Detective Steven Fraser arrived at the scene a short time later.

A blood trail, starting in the 600 block of Laurens Street and continuing to Argyle Avenue, was discovered. It started as "little splats of blood" and became "heavier" farther towards Argyle Avenue, which indicated that the injured person was moving more slowly. The blood trail continued to the 600 block of Smithson Street, where Karon Davis was found suffering from a gunshot wound to the face. Mr. Davis was taken to a hospital.

During the investigation, Officer Featherstone, following the blood trail, found a semi-automatic Ruger handgun in a backyard on Argyle Avenue. He could not recall at trial if it was loaded. Officer Carter, aided by the video footage, found a .357 Magnum and a .38 special in a trash can near the 1800 block of Pennsylvania Avenue. The crime scene technician photo-documented the area and recovered the guns, clothing found on Pennsylvania Avenue, a cell phone, and blood samples. None of the bullets that struck the three men were recovered.

Detective Fraser recovered video footage from surveillance cameras at various nearby stores, which appeared to depict Mr. Davis and Andre Robinson (who was a co-defendant with Mr. Nelson) within a few feet away from each other earlier that evening.Later footage showed Mr. Nelson discharging a handgun at Mr. Davis and Mr. Whitehead. As a result, Mr. Nelson was identified as a suspect in the shooting. The video footage, along with an anonymous source, caused Detective Fraser to consider Mr. Robinson a second suspect.

When Detective Fraser first went to the hospital he was unable to speak with any of the three men who were shot because of their medical conditions. He returned about twelve hours after the shooting and attempted to speak with Mr. Nelson. Detective Fraser testified that, before he could ask any questions, Mr. Nelson blurted: "I don't know what you're talking about. I don't have anything to say to you. You are wasting your time talking to me." Detective Fraser then left and attempted to speak with Mr. Whitehead.

About a day after the shooting, Detective Fraser recorded a statement made by Mr. Davis.² In that statement, Mr. Davis, using nicknames, said that he was walking to the store with Mr. Robinson and Keonne Black when two guys, whom he did not recognize, came up, drew guns, and told them "to get up against the wall." Mr. Davis ran, and the men started shooting. Shot in the face, he ran towards Fremont Street to seek help at the home of an acquaintance. At first, Mr. Davis denied having a weapon, but he later admitted arming himself for protection because Keonne Black had predicted that men with whom he had argued earlier that night would come back.

After Mr. Nelson was taken into custody, Detective Fraser obtained a warrant to collect a DNA sample from him to verify whether he had handled one of the weapons found in the trash can. Detective Fraser testified that the warrant permitted him to get the sample by either an "oral swab" or "blood draw." He first attempted to obtain the DNA sample by oral swab, but, when Mr. Nelson refused, he obtained a writ to transport Mr. Nelson to a hospital for a blood draw. There, after Mr. Nelson again refused to give an oral swab, a nurse obtained the DNA sample by a blood draw.

Mr. Nelson was eventually charged with identical counts related to Mr. Whitehead, Mr. Davis, and Mr. Black of attempted murder in the first degree; conspiracy to commit first degree murder; attempted murder in the second degree; conspiracy to commit second degree murder; assault in the first degree; conspiracy to commit first degree assault; assault in the second degree; use of a firearm in the commission of a crime of violence; recklessly engaging in conduct that created a substantial risk of death or serious physical injury to another; and one count of wearing, carrying, transporting a handgun.

Detective Fraser testified that he had attempted to locate and contact Mr. Whitehead after he was released from the hospital, but, at first, he was unable to locate him. Detective Fraser eventually found and served him with a subpoena on February 8, 2018. But, afterwards, he again lost track of Mr. Whitehead. He continued to try to locate Mr. Whitehead up until the day of the trial. Mr. Whitehead did not appear at trial.

At the end of the State's case, the trial court granted a motion for acquittal on all charges related to Mr. Black. The jury convicted Mr. Nelson on two reckless endangerment charges and the charge of carrying a handgun concealed or openly on his person. He was acquitted on the other charges. The jury did not reach a verdict on the charges against Mr. Robinson, and the court declared a mistrial.³

The circuit court sentenced Mr. Nelson to five years for each count of reckless endangerment and ten years on the handgun count, to be served consecutively, for a total of 20 years' imprisonment. Mr. Nelson filed this timely appeal.

STANDARD OF REVIEW

When reviewing whether evidence was relevant, the standard of review "depends on whether the 'ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure conclusion of law.'" Parker v. State, 408 Md. 428, 437 (2009) (quoting J.L. Matthews, Inc. v. Md.-Nat'l Capital Park & Planning Comm'n, 368 Md. 71, 92 (2002)). In other words, "while the clearly erroneous standard of review is applicable to the trial judge's factual finding that an item of evidence does or does not have probative value, the de novo standard of review is applicable to the trial judge's conclusion of law that the evidence at issue is or is not of consequence to the determination of the action." Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, 418 Md. 594, 620 (2011) (cleaned up); see also Md. Rule 5-401. Although a trial judge "generally[has] 'wide discretion'" when "weighing the relevancy of evidence[,]" the judge has no "discretion to admit irrelevant evidence." Santiago v. State, 458 Md. 140, 160-61 (2018) (quoting State v. Simms, 420 Md. 705, 724 (2011)).

A trial court's decision to exclude relevant evidence because its "probative value is substantially outweighed by the danger of unfair prejudice," under Maryland Rule 5-403, is reviewed for an "abuse of discretion." Ruffin Hotel Corp. of Maryland, Inc., 418 Md. at 620. That discretion is "broad but it is not boundless." Cooley v. State, 385 Md. 165, 175 (2005) (quoting Nelson v. State, 315 Md. 62, 70 (1989)). "Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law." Id. (quoting Jenkins v. State, 375 Md. 284, 295-96 (2003))

DISCUSSION

I.Pre-arrest SilenceContentions

Detective Fraser testified that Mr. Nelson made three statements at the hospital in regard to speaking with the detective. Mr. Nelson contends that these statements expressed his desire to remain silent, and that "pre-arrest" silence is too ambiguous toshow consciousness of guilt or have any probative value. In his view, the testimony should not have been permitted because it may have prejudiced the jury.⁴

The State contends that Mr. Nelson did not file a pre-trial motion to suppress these statements for being illegally obtained under Maryland Rule 4-252(a)(4),⁵ and that a general objection was insufficient in this case to preserve the issue for appeal. It also argues that Mr. Nelson's statements were not "silence" and were not used as substantive evidence of guilt.

Analysis

A. Preservation

To preserve a challenge to the admissibility of evidence for appellate review, it is necessary to object "at the time the evidence is offered or as...