Washington v. State

990 A.2d 549

191 Md. App. 48

Keith Allen WASHINGTON v. STATE of Maryland.

Nos. 00663, 02470, September Term, 2008.

Court of Special Appeals of Maryland.

January 29, 2010.

Reconsideration Denied March 31, 2010.

Michael P. Lytle (Warnken, LLC on the brief), Towson, for appellant.

Jessica V. Carter (Douglas F. Gansler, Atty. Gen. on the brief), Baltimore, for appellee.

Panel: DEBORAH S. EYLER, KEHOE, RODOWSKY, LAWRENCE F. (Retired, Specially Assigned) JJ.

KEHOE, J.

Following a nine day jury trial in the Circuit Court for Prince George's County, Keith Allen Washington ("appellant") was convicted of involuntary manslaughter, two counts of first degree assault, and two counts of the use of a handgun in the commission of a felony or crime of violence. Subsequently, the trial court denied appellant's motion for a new trial. Appellant appeals both his convictions and the denial of his motion for a new trial.¹

Appellant presents ten issues to this Court, which we have consolidated, reworded and re-ordered as follows:

I. Did the trial court err in prohibiting appellant from introducing evidence of the State's only eyewitness's prior convictions for crimes of violence to demonstrate his allegedly violent propensities?

II. Did the trial court err in preventing appellant from cross-examining the State's only eyewitness about his failure to register as a sex offender in Maryland?

III. Did the trial court err in permitting the State to elicit a hearsay statement that appellant was "looking for a fight," as a present sense impression?

IV. Did the trial court err in failing to declare a mistrial when a State's witness testified that appellant was "hostile" on the telephone after the witness had been specifically instructed not to make such a statement?

V. Did the trial court err in failing to sustain appellant's objection to the State's allegedly improper remark made in its opening statement?

VI. Did the trial court err in failing to declare a mistrial based upon the State's allegedly improper remarks made in its closing argument?

VII. Did the trial court err in denying appellant's motion for a new trial?

The first issue is not preserved for appellate review. We answer the remaining questions in the negative and affirm the convictions.

Background

Appellant, who was, at that time, a Prince George's County police officer, and his wife, Stacey Washington ("Mrs. Washington"), purchased a bed from Marlo Furniture which was delivered to their Accokeek, Maryland residence in December, 2006. The bed rails, however, were defective and either appellant or Mrs. Washington requested replacements. Marlo agreed to do so and arrangements were made to deliver the new bed rails on January 24, 2007, between 2:30 and 5:30 p.m. Appellant took off from work to be at home when the delivery arrived. When the bed rails were not delivered during the specified time frame, appellant called Marlo to inquire about the delivery. After several phone calls, appellant was notified that the rails would be arriving around 7:30 p.m. At about that time, Brandon Clark ("Clark") and Robert White ("White"), two furniture deliverymen, arrived at the Washington residence with the bed rails. Appellant met Clark at the door. Unbeknownst to Clark or White, appellant had a handgun tucked into his waistband. White and Clark, accompanied by appellant, carried the bed rails to the master bedroom on the second floor. They were alone; Mrs. Washington and the Washington's six year old daughter were having dinner in the first floor kitchen. A few minutes later, appellant shot both Clark and White. White was severely injured and Clark died nine days later from complications related to his wounds.

After an investigation by the Prince George's County Police Department, a grand jury sitting in the Circuit Court for Prince George's County indicted appellant on twelve counts:

Count I second degree felony murder (Brandon Clark);

Count II second degree specific intent to kill murder (Brandon Clark);

Count III second degree specific intent to do serious bodily harm murder (Brandon Clark);

Count IV second degree depraved heart murder (Brandon Clark)

Count V voluntary manslaughter (Brandon Clark);

Count VI involuntary manslaughter — grossly negligent act (Brandon Clark);

Count VII involuntary manslaughter — unlawful act (Brandon Clark);

Count VIII first degree assault (Brandon Clark);

Count IX use of a handgun in the commission of a felony or crime of violence (Brandon Clark);

Count X attempted second degree murder (Robert White);

Count XI first degree assault (Robert White);

Count XII use of a handgun in the commission of a felony or crime of violence (Robert White).

Prior to appellant's trial, White filed a civil action against appellant and Prince George's County seeking $400,000,000 in damages arising out of the shooting.

Appellant's trial was preceded by in limine motions filed by both the State and appellant pertaining to evidentiary matters. Several of the trial court's rulings on these motions are pertinent to the issues raised on appeal and we will discuss them below.

While a detailed description of the evidence presented at trial is not necessary for this opinion, we will summarize the testimony of White, on the one hand, and appellant and Mrs. Washington, on the other, to illustrate the contrast in their versions of events.

According to the State, the shootings were unprovoked and unjustified. The State introduced evidence from an employee of Marlo who had spoken to appellant earlier in the day to the effect that appellant was angry and hostile over the telephone. White testified that, upon arriving at appellant's resident, Clark went up to the front door and talked to appellant, while White stayed in the delivery truck. White recounted that, when Clark came back to the truck to get the bed rails, he told White that appellant was "looking for a fight." White then testified as to his version of what then occurred:

THE WITNESS: When we went inside, he direct sic us to a bedroom upstairs. I was walking first, in front of Brandon. Brandon was walking behind me. He was behind Brandon, and he directed us to a bedroom upstairs. We went in, we set the rails down, and then Mr. Washington started arguing with Brandon.

THE STATE: And what was Mr. Washington arguing with Brandon about?

THE WITNESS: Because, I guess, we got to his house late, and he was upset because he was waiting to his house all day.

THE STATE: Go ahead and tell us what happened.

THE WITNESS: So Brandon kneeled down — I'm standing on the other side, close to the railing, Brandon at the bed, and he ask Mr. Washington why you disassemble your bed, and he said — this was his words — "Motherfucker, are you telling me what to do in my house?" I said, "Brandon, do you know Mr. Washington?" Brandon said no.

So it was a few seconds later he pushed Brandon and told Brandon to get the fuck out of his house. I said, "Brandon, I think we should go." Brandon said, "No, just let me do my job. It's only going to take ten minutes."

Brandon kneeling again — he's still kneeling. Mr. Washington pushed him again, "Get the fuck out of my house," and the third time he pushed him, he pushed him until he was actually laying on his side. Brandon jump up. I told Brandon, "That's it; we out of here." I stepped between both of them, Mr. Washington and Brandon, Brandon going back out the door with his hands up. I got my back to Mr. Washington, and all I heard was shots after we got out of the room. He said, "I know how to get you the fuck out my house."

THE STATE: After you heard the shots, what did you do; what did you see?

THE WITNESS: Brandon was going back towards the stairs, and I grabbed Brandon to keep him from falling down the stairs.

* * * * * *

I had to lay him down, and as I ask him where the cell phone at, when I turn around, I hear more shots. Then I realized I was hit.... in the chest and in the stomach.

* * * * * *

I didn't want to go down the stairs because he already shot me. So I moved up, to move away from Brandon,... and I laid down here pointing to a diagram, down on this side. Mr. Washington went back in his room. I got back up because I knew I needed help. When I got back up, he comes out of his room and he said, "Motherfucker, didn't I told you to stay down," and he starts shooting again. That's when I realized I was hit in the knee. I went down.

THE STATE: You went down. Then what happened?

THE WITNESS: We laid there screaming, asking him to help us, to call somebody, and he said he wasn't calling nobody.

In contrast, appellant and Mrs. Washington testified that appellant had acted in self-defense. Appellant testified that when Clark and White arrived at appellant's home he instructed them to put the bed rails in the foyer, but they carried them to the master bedroom instead. Appellant led Clark and White to the master bedroom, but when he got there, he noticed that White was no longer following. When appellant asked Clark about White's whereabouts, Clark "backslapped" appellant twice in the chest and told him "I got him, Shorty."² Appellant then saw White coming out of appellant's daughter's bedroom. When appellant told White to get out of his daughter's bedroom, Clark again responded with "I told you, Shorty, I got him." Appellant told Clark and White to leave his house. After appellant told Clark and White for the third time to leave his house, Clark responded that appellant needed to watch how he talked to people. Appellant again demanded that Clark and White leave. He testified:

APPELLANT: Mr. White punched me on the side of the face.

DEFENSE COUNSEL: What did Mr. Clark do?

APPELLANT: When he punched me, Mr. Clark punched me in the back of the head.

DEFENSE COUNSEL: What did you do after Mr. White punched you and Mr. Clark punched you in the back of the head?

APPELLANT: When he punched me, I swung around with my hand, and I just covered up because I couldn't stop them. They were on me.

DEFENSE COUN

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