Wilder v. State

991 A.2d 172

191 Md. App. 319

Aubrey David WILDER v. STATE of Maryland.

No. 1122, September Term, 2008.

Court of Special Appeals of Maryland.

March 25, 2010.

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Amanda M. Downs (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Edward J. Kelley (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.

Panel: HOLLANDER, MEREDITH, and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

J. FREDERICK SHARER, Judge, Retired, Specially Assigned.

In the Circuit Court for Baltimore County, Aubrey David Wilder, appellant, was convicted by a jury of various charges of first-degree assault, reckless endangerment, and the use of a handgun in the commission of a crime of violence.¹

In this appeal, Wilder raises four issues, which, as recast and reordered, are:²

I. Whether the evidence is sufficient to sustain the convictions.

II. Whether the trial court abused its discretion by admitting "other bad acts" evidence.

III. Whether the trial court abused its discretion by permitting a police officer to provide lay opinion testimony.

IV. Whether the trial court abused its discretion by not removing a juror who had raised doubts about her ability to be "fair and just."

We conclude that the trial court abused its discretion by permitting testimony about cellular tower site location without qualifying the State's witness as an expert, and that the error is not harmless beyond a reasonable doubt. Therefore, we shall vacate Wilder's convictions and order a new trial on all counts except for the handgun charges. With respect to the handgun count, we are unable to hold that the evidence establishes beyond a reasonable doubt that Wilder used a "handgun" in the commission of the offenses, and shall reverse. We further conclude that the trial court did not abuse its discretion by admitting evidence of a prior threat made by Wilder, and did not abuse its discretion by not granting a mistrial. Finally, we need not consider appellant's challenge to the trial court's decision not to remove a juror, as that issue is not likely to recur in a retrial.

FACTUAL AND PROCEDURAL HISTORY

The genesis of the charges against Wilder is a shooting incident that took place in the early morning hours of July 25, 2007, in Windsor Mill, Baltimore County. A gunman fired four shots at the residence of Robert Lee Williams, Jr., at 3314 Lynne Hall Drive.³ At the time, the residents of the house included Williams's father; his son, Robert Lee Williams III (Robert); Robert's girlfriend; two children; a niece, Lavivian Jones, and her child, Zaire. Williams was acquainted with Wilder through Jones. Wilder is the father of Jones's son.

Williams testified that on the afternoon of July 24, 2007, he was outside of his house, along with Jones, her child, and Robert. Wilder drove up, stopped across the street from the house, and walked up to Jones at the edge of the property. Williams explained that because Wilder was forbidden to be on his property, he could go no further when visiting Jones and their child. Wilder had not been welcome at the Williams house because he and Jones "always had issues."

Wilder and Jones at first conversed quietly. They began to argue, however, and Wilder, who was holding the child, walked back towards his car. Jones became concerned that Wilder would drive away without securing Zaire in a car seat, and she prevailed upon her cousin, Robert, to intervene. Robert suggested to Wilder that he place the child in a car seat. Wilder took offense, and an argument arose. Robert explained why he intervened in the dispute:

Well, at some time Wilder was tryin' to take him. And, you know, no car seat. And I was, um, basically comin' to stop him from takin' the baby `cause he was takin' it with no car seat.

And my cousin Jones was tellin' me, you know, come, cause he was tryin' to take the baby.

* * *

When I got down there I told him, you know, you ain't takin' the baby. And specially, you know, you ain't got no car seat. You know what I'm sayin'?

And then after that I guess he, you know, went on the offensive, sayin', this is my son, whatever, whatever.

So he tryin' to get in the car with the baby with no car seat.

Robert alluded to threats Wilder had made during an earlier conversation with Robert's mother, and further described his confrontation with Wilder on the afternoon before the shooting:

A. And I said, due to the past comments you made, you know, previous to my mother, and threats.

* * *

A. I said, you got nerve to come around here with this, you know.

That's when I—I was kinda upset, you know, `cause what he said to my mother and all that.

So I asked him to step out of the car, you know. He—like, he ain't step out of the car. He ain't do none of that. Still got the baby in his hand.

So I'm like, step out the car. He never step out the car.

Then after that he pulls off with the baby, goes halfway down the street, gets out the car. Ah, you messed up. You messed up. You messed up.

Then he drove off.

Just after driving off, Wilder stopped for a moment and was heard to remark that "he Robert just F'ed up." The elder Williams remarked that Wilder's demeanor was "like a tough-guy thing." Jones recounted that after Wilder took Zaire and drove away, she "had to call Baltimore County police to get my son back . . . because Wilder had Zaire without a car seat."

Williams returned home from work at about 2 a.m. on the morning of the 25th, and remained awake because he had planned to leave for a trip that morning. He had mentioned to his wife that he was concerned by the hostilities between Wilder and Robert, and that "things are gettin' more intense with Wilder and Robert, considerin' what happened earlier that day."

Just before he was set to leave on his trip, Williams heard four gunshots. He rushed to the top of the stairs and saw Wilder's Volvo station wagon "pullin' off." Williams recounted that the car was "just pullin' out my driveway, pullin' around the circle." He could not see the driver and could not tell how many people were in the station wagon. Four rounds hit the house and went through the walls. Williams identified four locations where the gunshots hit the house. One round entered a hallway shortly after Williams had passed by that point. Williams described additional damage. Police responded to the scene, and found two shell casings. Williams later discovered two additional bullets as workmen were repairing the house. According to the lead detective, a firearms technician concluded that the bullets recovered were "probably" fired from a "9 millimeter-type handgun, and a 9 millimeter's only fired out of a semi-automatic gun."

The prosecutor asked Williams about an earlier incident that had taken place on July 3, when Wilder threatened to come to the Williams house. Over defense counsel's objection, Williams testified that when his wife told him that Wilder had called her with this threat, he then called Wilder. Wilder "said that Vivian Jones disrespected him for the last time and that he was comin' out to our house with a gun."⁴

Williams, who was not at home at the time of the call, instructed his wife, Ursula, to call the police, and an officer responded. When he arrived home, Williams met the officer and discussed the threat. Approximately 20 minutes later, Wilder drove into the cul-de-sac that was adjacent to Williams's house, made a U-turn, and drove away, apparently seeing the police car that was parked in the circle.

Ursula Williams recalled her telephone conversation with Wilder on July 3. Her niece, Lavivian Jones, had borrowed Wilder's car, which Mrs. Williams described as "copperish" in color, and Wilder had called inquiring about the vehicle. Mrs. Williams said that neither Jones nor the car was at the house. Wilder became upset, and threatened to come to the house. According to Mrs. Williams, Wilder said something to the effect that "he didn't care who . . . got it." Mrs. Williams called Jones and told her to return the car, and also called her husband, who in turn instructed her to call the police.

When asked why Wilder was not welcome at their house, Mrs. Williams explained that her husband enforced the ban because there had been "incidents" between Lavivian and Wilder. She elaborated:

PROSECUTOR: And you also said that the defendant was not welcome in your home because of incidents with or between him and Lavivian?

A. Yes.

Q. And what do you mean by that?

A. Lavivian, she and Aubrey had gone together, but it's like Vivian always get hurt or somethin' when she's with Aubrey, you know. So my husband just— you know, we don't believe in that.

Q. What do you mean, hurt?

A. Hit on, beaten.

DEFENSE COUNSEL: Objection.

THE COURT: All right. The objection's sustained.

Defense counsel also requested a mistrial. The trial court denied this motion, noting that, initially, defense counsel failed to object when Mrs. Williams alluded to Lavivian getting "hurt."

Lavivian Jones testified that on the morning of the shootings, she and Wilder were talking to each other on their cell phones. She recalled that they were talking "off and on" at about 2:30 a.m., when Wilder said that he was at a club. Thinking that everyone assumed that Wilder had fired the shots, Jones called him shortly after the shooting "to see what he had to say." Wilder denied any involvement in the shooting.

Troy McLain Wallace lives across from the Williams house. He was awake just before the shooting. He heard four gunshots, and reacted immediately:

And I was walkin' down the hallway, and at that time I heard four—what I would consider four shots.

I then looked out my window. I was already up and walkin', so I responded to the window probably within a second. And I looked out, and that's when I viewed the vehicle in the Stowe Court loopin' and the court and goin' out.

At that time I dialed 9-1-1. And I could hear my neighbor

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