Yates v. State

429 Md. 112

55 A.3d 25

Warren Jerome YATES

v.STATE of Maryland.

No. 8, Sept. Term, 2012.

Court of Appeals of Maryland.

Oct. 23, 2012.

Lauren K. Collogan, Assigned Public Defender (Williams & Connolly LLP, Washington, DC), on brief, for petitioner.

Daniel J. Jawor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

BARBERA, J.

A stray bullet, fired at a fleeing drug buyer who attempted to trick a dealer by paying with fake bills, killed an innocent bystander. Petitioner, Warren Jerome Yates, was convicted by a jury sitting in the Circuit Court for Baltimore County of second-degree felony murder, distribution of marijuana, and related offenses in connectionwith the death of that bystander and the failed drug transaction that preceded it.

The Court of Special Appeals, in a reported opinion, affirmed the judgments of conviction. Yates v. State, 202 Md.App. 700, 33 A.3d 1071 (2011). We granted a writ of certiorari to address Petitioner's claims that the Court of Special Appeals erred in (1) holding that the trial judge's error in admitting hearsay evidence that Petitioner admitted committing the shooting was harmless; (2) adopting the res gestae theory of second-degree felony murder in affirming that conviction; and (3) declining to exercise plain error review of a jury instruction. For reasons we shall explain, we reject each of Petitioner's claims of error and affirm.

I.

On the night of January 7, 2009, Shirley Worcester was standing outside her home in Middle River, Maryland, when she was fatally wounded by a stray gunshot. Moments earlier, Worcester had stepped outside of her home to take two trash bags to the curb. Worcester's sister-in law, Linda Fuller, was sitting in a car parked in the driveway talking with Worcester when she heard what sounded like a car backfiring. “I've been hit,” Worcester said. Fuller and her husband got out of the vehicle and saw a man, wearing a dark hooded sweatshirt with the hood pulled up over his head, fall in Worcester's yard around the same time as the gunshots went off. The man ran off between houses, and Worcester's relatives called 911. Worcester later died from the gunshot wounds.

Police responding to the 911 call stopped a suspicious-looking man, later identified as Petitioner's co-defendant, Donald Kohler, not far from the scene of the shooting. Police investigation revealed that Kohler, the hooded man who fell in Worcester's yard and then ran off, was the gunman's intended target and Worcester was the innocent victim of an errant shot.

The shooting was preceded minutes earlier by a drug transaction between Kohler and Petitioner. It developed at trial that Kohler had contacted Christopher Jagd and Justin Wimbush seeking to buy four pounds of marijuana. The men in turn contacted Petitioner, who agreed to sell Kohler the drugs. Kohler, Petitioner, and their associates met at another individual's home to conduct the transaction. Petitioner was accompanied by William Griffin. Petitioner presented the marijuana to Kohler and received from him a bag that appeared to contain the purchase money. Immediately after the exchange, Kohler ran from the house, and Petitioner, after glancing in the bag and learning it contained fake currency, chased after Kohler carrying a handgun. Investigators deduced that, during the chase, Petitioner fired at Kohler, missed him, and the stray bullet struck Worcester, wounding her fatally.

Petitioner and Kohler were jointly tried before a jury for their roles in the drug transaction and subsequent shooting. According to several witnesses, Kohler had come to the drug transaction wearing a hooded sweatshirt and all black clothes, similar to the description given to police of the clothing worn by the man who fell in the yard and ran off between buildings after Worcester was shot. In the vicinity of the shooting, police found two shell casings and a trash bag containing four plastic bags filled with marijuana.

Two of the men present for the drug transaction were called as State's witnesses and connected Petitioner to the shooting. Christopher Jagd initially testified that he did not see Petitioner fire the gun, but later acknowledged that he rememberedseeing Petitioner pointing the gun, moving it to the side, and firing. Jagd further testified that Petitioner had told him either that he, Petitioner, “got him,” referring to Kohler, or that he did not know if he had “got him.” William Griffin similarly testified that Petitioner told Griffin he fired the gun but did not know “if he hit anybody or nothing.” In addition, Detective Sekou Hinton testified, over defense objection, that Jagd told him that Petitioner had confessed to the shooting. Specifically, Jagd told the detective that Petitioner had said to Jagd, “I popped that nigga.” Jagd, however, denied at trial that Petitioner had made that statement to him.

The jury returned a verdict on October 9, 2009. The jury acquitted Petitioner of first-degree murder and found him guilty of second-degree felony murder, use of a handgun during the commission of a felony, use of a handgun during the commission of a violent crime, drug trafficking with a firearm, distribution of marijuana, conspiracy to distribute marijuana, and first-degree assault. For sentencing purposes, the trial court merged distribution of marijuana with second-degree felony murder and merged together the two handgun convictions. For the remaining crimes, the court sentenced Petitioner to a total of ninety-five years' imprisonment.

Petitioner noted an appeal to the Court of Special Appeals. That court, rejecting Petitioner's multiple claims of reversible error, affirmed the judgments of conviction. Yates, 202 Md.App. at 704, 33 A.3d 1071.

Petitioner filed with this Court a writ of certiorari to answer the following questions:

1. Did the Court of Special Appeals err in concluding that the improper admission of hearsay describing Mr. Yates's alleged confession was harmless error?

2. Did the Court of Special Appeals err in adopting the res gestae theory of second-degree felony murder in sustaining Mr. Yates's conviction?

3. Did the Court of Special Appeals abuse its discretion in declining to exercise plain error review of a jury instruction solely on the grounds that the instruction was consistent with a Maryland Criminal Pattern Jury Instruction?

We granted the petition, Yates v. State, 425 Md. 396, 41 A.3d 571 (2012). We answer “no” to each of the questions presented.

II.

On cross-examination of Detective Hinton by Kohler's defense counsel, Detective Hinton was asked what Jagd had told him Petitioner had said after the shooting.

[Kohler's Counsel]: And my question to you is this: When you spoke with Mr. Jagd, you discussed with him what it was that he said that [Petitioner] had said to him immediately after the shooting as they were running into the house. I want to call your attention to that discussion that you had with him. Can you tell us what it is that Mr. Jagd told you that [Petitioner] said to him?

* * *

[Hinton]: He said, I popped that nigga.

The trial court allowed the statement into evidence, over Petitioner's objection. Petitioner moved for a mistrial, and the trial court denied the motion.

The State conceded before the Court of Special Appeals (and repeats that concession here) that Detective Hinton's testimony, repeating what Jagd told him that Petitioner said to Jagd, was inadmissible hearsay.¹ The State argued, though, that Petitioner was not entitled to reversal of his convictions on that ground because the error was “harmless error.” The Court of Special Appeals agreed that the trial court erred, yet held, by application of the test for “harmless error” set forth in Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976),² that the error did not entitle Petitioner to reversal of his convictions. Yates, 202 Md.App. at 708–09, 711, 33 A.3d 1071.

Petitioner challenges that holding, arguing that the Court of Special Appeals misapplied the Dorsey test by not considering the impact the hearsay evidence had on the jury and by instead improperly examining whether the State relied on the hearsay statement in its closing argument. Additionally, Petitioner contends that the hearsay statement was not cumulative of other evidence offered at trial. The State disagrees, asserting that the Court of Special Appeals correctly held that Petitioner is not entitled to reversal on the basis of the trial court's evidentiary error. We agree with the State.

“This Court has long approved the proposition that we will not find reversible error on appeal when objectionable testimony is admitted if the essential contents of that objectionable testimony have already been established and presented to the jury without objection through the prior testimony of other witnesses.” Grandison v. State, 341 Md. 175, 218–19, 670 A.2d 398 (1995) (citing Jones v. State, 310 Md. 569, 589, 530 A.2d 743 (1987), vacated on other grounds,486 U.S. 1050, 108 S.Ct. 2815, 100 L.Ed.2d 916,on remand,314 Md. 111, 549 A.2d 17 (1988)). In Jones, we considered whether a detective's testimony about how an attempted murder victim identified Jones as her assailant in an early interview and in a later photo array was inadmissible hearsay and unduly prejudicial. 310 Md. at 588, 530 A.2d 743. Given that the victim testified without objection at trial that she identified Jones as the assailant to police, we held: “Where competent evidence of a matter is received, no prejudice is sustained where other objected to evidence of the same matter is also received.” Id. at 588–89, 530 A.2d 743.See also DeLeon v. State, 407 Md. 16, 30–31, 962 A.2d 383 (2008) (holding that a defendant waived an objection to what he claimed was irrelevant and highly prejudicial testimony about his purported gang affiliation because “ evidence on the same point [was]...