Smith v. State

957 A.2d 1139

182 Md. App. 444

Antwan Derrell SMITH v. STATE of Maryland.

No. 614, Sept. Term, 2007.

Court of Special Appeals of Maryland.

October 6, 2008.

Paul A. Solomon, Washington, DC, for Appellant.

James E. Williams (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: DAVIS, DEBORAH S. EYLER and JAMES A. KENNEY, III (retired, specially assigned), JJ.

DAVIS, J.

Appellant, Antwan Derrell Smith, and his co-defendant, Charles Patterson, were tried by a jury in the Circuit Court for Baltimore City from March 13-21, 2007, on various counts of first-degree murder, armed robbery, robbery, conspiracy to commit robbery and assault. On March 21, 2007, the jury convicted appellant of three counts each of armed robbery, robbery and second-degree assault and one count each of attempted armed robbery and attempted robbery.¹ On May 3, 2007, the circuit court denied appellant's motion for new trial. On that same day, the circuit court merged the assault, robbery and attempted robbery counts into the armed robbery and attempted armed robbery counts and imposed a sentence of (1) twenty years imprisonment on one count of armed robbery; (2) ten years imprisonment on another count of armed robbery (consecutive to the first sentence for armed robbery), (3) ten years imprisonment on a third count of armed robbery (concurrent with the second sentence for armed robbery), and (4) ten years imprisonment on the final count of attempted armed robbery, to be served concurrently with the second sentence for armed robbery.

From these convictions and sentences, appellant filed the instant appeal, presenting the following questions, which we have rephrased as follows:

1. Did the trial court err when it denied appellant's motion to suppress evidence on the grounds that the initial traffic stop of the car in which appellant was a passenger was valid under the Fourth Amendment to the United States Constitution?

2. Did the trial court abuse its discretion when it repeatedly questioned State's witnesses during appellant's trial, thus depriving appellant of his right to a fair and impartial trial?

3. Did the trial court err by admitting an exhibit proffered by appellant's co-defendant, later given to the jury during its deliberations, that, unbeknownst to the court and counsel, contained evidence of appellant's possession of a controlled dangerous substance that was earlier deemed inadmissible by the trial court?

For the reasons that follow, we answer question I in the negative and question II in the affirmative. In light of our disposition of question II, we decline to reach question III. Accordingly, we shall reverse the judgment of the Circuit Court for Baltimore City.

FACTUAL BACKGROUND

Appellant was arrested after Baltimore City police officers initiated a traffic stop of a car driven by appellant's co-defendant, Charles Patterson. Appellant and Patterson were jointly tried on various charges related to the murder of Anthony Hecht² and the robbery of James Anderson, Charlotte Johnson, Tycara Johnson and Lamar Davis, all of which occurred, according to the State, prior to the traffic stop that resulted in the arrests of appellant and Patterson.

At appellant's trial, James Anderson, also known as "Liquor Boy" and "Gasoline," testified that, sometime during the late evening of October 23, 2005 or into the early morning hours of October 24, 2005, he asked a man standing on the corner if he would help Anderson procure cocaine. Both men walked around to the back of a building, where another man approached Anderson and demanded money from him at gunpoint. Both before and during trial, Anderson identified Patterson as the man standing on the corner and appellant as the man with the gun. Patterson took $5 out of Anderson's pocket. Anderson then accompanied both Patterson and appellant to the front of the building, where Anderson noticed three people sitting on a front stoop.

According to the testimony of Charlotte Johnson, Davis and Tycara Johnson, sometime before midnight on October 23, 2005 and/or during the early morning hours of October 24, 2005, three men approached them while they were sitting on Charlotte Johnson's front porch at 4105 Cleve Court in the Brooklyn area of South Baltimore. One of these men carried what Charlotte Johnson described as a "long silver like rifle." The man with the rifle demanded that she and her companions empty their pockets and lay down on the ground. Additionally, Davis recognized one of the three men as a person he knew by the nickname "Gasoline." After removing a ten-dollar bill, a pack of cigarettes and a lighter from her pockets, Charlotte Johnson lay down on the porch and covered her head with a coat. Davis testified that he removed a book of matches from his pocket and lay down on top of Charlotte Johnson. The robbers also took $80 from Tycara Johnson after she removed the money from her pockets.

At appellant's trial, the State argued that, during or shortly after these robberies, the murder victim, Anthony Hecht, opened fire on appellant and Patterson, who fired back, killing Hecht. Hecht's body, cartridge casings and bullets were later recovered from the area. Charlotte Johnson, Tycara Johnson and Davis all testified that, after laying down on the porch, they heard the sound of gunfire. Anderson also lay down on the ground, but only after hearing gunshots. None of the four victims witnessed the gunfire or the shooting. Detective Charles Bealefeld, who participated in the investigation of Hecht's murder, testified that the first report of gunshots in the area was at 11:25 p.m.

Additionally, at trial, neither Charlotte Johnson, Tycara Johnson, nor Davis identified Patterson or appellant and all three admitted that they did not see who committed the robbery. Although Detective Bealefeld testified that Charlotte Johnson previously identified appellant and Patterson in a pretrial photographic line-up, Johnson expressly denied having made an identification.

Chris Kornish,³ a friend of appellant and Patterson, testified that, on the night of October 23, 2005, he was a passenger in a BMW driven by Patterson. That evening, Patterson stopped somewhere in South Baltimore, exiting the car with appellant and leaving Kornish seated in the car. A short while later, Kornish heard three gunshots. When Patterson and appellant returned to the car, Kornish noticed that appellant was carrying a black and silver rifle. Appellant told Kornish that somebody had been shooting at appellant. Kornish testified that they then went to a bar and were stopped by police officers on their way home from the bar. Detective Bealefeld testified that Kornish identified both appellant and Patterson out of a photo array as the individuals he was with the night they were arrested.

Officer Creinton Goodwin and Officer Charles Watkins testified that they initiated a traffic stop of a silver BMW at approximately 11:50 p.m. upon determining that the BMW was traveling at a high rate of speed. Patterson was driving the car and appellant and Kornish were seated in the front and back seats, respectively. After stopping the car, Officer Watkins approached the passenger side of the car and immediately noticed that appellant appeared to be hiding a gun under his legs. Officer Watkins seized the gun, later determined to be a High Point .9 mm assault rifle and the occupants of the car were placed under arrest.

Both appellant and Patterson moved to suppress evidence seized subsequent to the traffic stop. Their motions to suppress were denied by the circuit court on March 5, 2007. The rifle was admitted as evidence at trial and a firearms identification expert testified that cartridge casings recovered from the crime scene matched the rifle retrieved from Patterson's car.

Additional facts will be provided as warranted in our analysis, infra.

ANALYSIS

I

Appellant and his co-defendant, Patterson, filed a motion to suppress evidence, challenging the legality of Officer Goodwin's traffic stop. The circuit court denied their motion to suppress on March 5, 2007, ruling that Officer Goodwin's traffic stop was valid under the Fourth Amendment. Appellant assigns error in the circuit court's conclusion.

A. Standard of Review

Our review of the circuit court's denial of a motion to suppress is based on the record created at the suppression hearing and is a mixed question of law and fact. See Whiting v. State, 389 Md. 334, 345, 885 A.2d 785 (2005). An appellate court reviews the trial court's findings of fact only for clear error, giving due weight to the inferences fairly drawn by the trial court and viewing the evidence and inferences reasonably drawn therefrom in a light most favorable to the prevailing party on the motion. Id., State v. Rucker, 374 Md. 199, 207, 821 A.2d 439 (2003). However, legal conclusions are not afforded deference and thus are reviewed de novo. Ferris v. State, 355 Md. 356, 368, 735 A.2d 491 (1999); see also Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). This Court reviews de novo the conclusions of the trial court as to whether reasonable, articulable suspicion justified a traffic stop, as this is a question of law.

B. Investigatory Stop of Patterson's Car

At the suppression hearing, Officer Goodwin testified that, at approximately 11:50 p.m. on October 23, 2005, he and three other officers were sitting in a marked patrol car facing westbound on Mosher Street at the intersection with Gilmore Street. At that time, Officer Goodwin noticed a silver BMW heading northbound on Gilmore Street at what he believed to be a "high rate of speed," later clarifying that he estimated the speed to be approximately forty to forty-five miles-per-hour. He further testified that the posted speed limit in the area was twenty-five miles per hour and conceded that he did not use radar to detect the speed at which the car was traveling. Officer Goodwin immediately turned right onto...