Griffin v. State

• Decision Date: 27 May 2010
• Parties: Antoine Levar GRIFFIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

995 A.2d 791

192 Md. App. 518

Antoine Levar GRIFFIN v. STATE of Maryland.

No. 1132 September Term, 2008.

Court of Special Appeals of Maryland.

May 27, 2010.

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Katherine P. Rasin (Elizabeth I. Julian, Acting Public Defender, on the brief), Baltimore, MD, for Appellant.

Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: HOLLANDER, WOODWARD and KEHOE, JJ.

HOLLANDER, Judge.

A jury in the Circuit Court for Cecil County convicted Antoine Levar Griffin, appellant, of second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. The convictions arose from the fatal shooting of Darvell Guest on April 24, 2005.¹

On appeal, Griffin poses three questions, which we have rephrased slightly:

I. Did the trial court err in admitting a page printed from a MySpace profile alleged to be that of appellant's girlfriend?

II. Did the trial court err in permitting the prosecutor to incorrectly describe "reasonable doubt" in his rebuttal closing argument?

III. Did the trial court err in denying appellant's request for a mistrial following an outburst by the mother of a witness?

For the reasons set forth below, we shall affirm the convictions.

I. FACTUAL SUMMARY²

In the early morning hours of April 24, 2005, Darvell Guest was cornered, unarmed, in the women's bathroom of Ferrari's Bar in Perryville, where he was brutally shot seven times. Appellant was charged with the murder. Griffin's first trial was held in August 2006. At that trial, Dennis Gibbs, appellant's cousin and an eyewitness to Guest's murder, testified that he did not see appellant pursue the victim into the bathroom with a gun. The trial ended in a mistrial.

At appellant's second trial in January 2008, several witnesses testified that they saw appellant with a handgun just before the shooting, and others testified that they witnessed appellant pursue Guest into the women's bathroom, where appellant fired his weapon. Gibbs testified that appellant was the only person, other than Guest, in the bathroom when the shots were fired. According to Gibbs, another cousin, George Griffin, was standing "right with me" during the shooting and did not enter the bathroom. He explained the discrepancy in his testimony at the two trials, claiming that Jessica Barber, appellant's girlfriend, had threatened him prior to the first trial.

Thereafter, the court permitted the State to introduce into evidence a redacted printout obtained in December 2006 from a MySpace profile page allegedly belonging to Ms. Barber. The profile page, introduced for the limited purpose of corroborating Gibbs's testimony, said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!"

We shall include additional facts as they pertain to our discussion of the issues.

II. DISCUSSION

A.

Appellant contends that the court erred in admitting the MySpace evidence. He complains that the evidence was not properly authenticated and that its prejudicial effect outweighed its probative value.

Before reviewing the parties' contentions in more detail, we pause to set forth additional facts.

At the second trial, Gibbs recalled that he arrived at Ferrari's in the company of three of his cousins, Dorian Griffin, Dyrle Griffin, and George Griffin. According to Gibbs, Guest bumped into Dorian, and the two "exchanged a few words." They quickly shook hands, however, then "parted ways," without further incident. A few minutes later, according to Gibbs, he saw appellant run up and punch Guest in the face. In response, the victim's girlfriend, Kesha Bowser, grabbed appellant. A "commotion" with physical "tussling" ensued, during which appellant pulled a black handgun "from his hip" and held it out "straight in front of him," pointing it "towards Mr. Guest." Guest ran into the women's bathroom, and appellant followed. Although Gibbs could not see inside the restroom, he testified that he saw both Guest and appellant go into the bathroom, and that no one else went in. Gibbs then heard multiple gunshots.

Gibbs conceded that his testimony at the second trial as to who entered the bathroom before the shots were fired was inconsistent with what he told police and with his testimony at the first trial. He acknowledged that, at the first trial, he had testified that appellant was outside the bathroom while the victim was in the bathroom, that he did not see appellant go into the bathroom with Guest, and that he saw his cousin, George Griffin, exit the bathroom.

On re-direct, the prosecutor asked Gibbs to explain the "inconsistencies between your testimony here in this trial and some of your earlier statements." Gibbs replied:

I had been threatened. Like right after the stuff happened I was threatened by people from across the bridge that knew Mr. Guest. That's why I couldn't go back to work. And then right before the last trial I was threatened by Antoine's girlfriend. She told me I might catch a bullet if I showed up in court. (Emphasis added.)

On re-cross, the following exchange ensued:

DEFENSE COUNSEL: Did you see George Griffin come out of the bathroom?

MR. GIBBS: No, sir.

DEFENSE COUNSEL: Did you tell under oath and swear to a jury that you did see him come out of the bathroom?

MR. GIBBS: Yes, sir....

DEFENSE COUNSEL: Now you said that the reason that you are giving inconsistencies or ... lies ... would be because his girlfriend threatened to you that you were going to get a bullet?

MR. GIBBS: Yes, sir; and I have a witness.

DEFENSE COUNSEL: When was that, sir?

MR. GIBBS: It was like the week before the trial.

DEFENSE COUNSEL: Where was that?

MR. GIBBS: Me and my sister was right out in front of her house, and her and my sister and Jesse was on the phone together, and she was like—

DEFENSE COUNSEL: Just listen. I'm talking to you. I said where did you get that, not your sister.

MR. GIBBS: From the phone.

DEFENSE COUNSEL: You spoke to somebody on the phone?

MR. GIBBS: My sister was on the phone with her.

DEFENSE COUNSEL: Sir, did you tell the state's attorney?

MR. GIBBS: Yes, on the first case, yes, I did tell whoever the state's attorney was. I did tell him that morning....

DEFENSE COUNSEL: When did you tell this state's attorney?

MR. GIBBS: Today.... Because you didn't let me finish answering my question when you had asked me, and I said there was a reason behind everything.... I wanted to finish my statement, but you didn't let me.

The State also called Ms. Barber. She testified that, on the night in question, appellant was her boyfriend, and he lived with her and their two children. Ms. Barber identified appellant's nickname as "Boozy." Although Ms. Barber was at Ferrari's at the time of the shooting, she did not arrive with appellant, and claimed that she was not with him during the evening. According to Ms. Barber, she heard gunshots at the bar but did not see appellant in the bar after the shooting.

On the day after Ms. Barber testified, the prosecutor sought to introduce five pages printed on December 5, 2006, from an Internet Web site³ for a MySpace profile in the name of "SISTASOULJAH," who was described on that Web page as a 23 year-old female from Fort Deposit. The profile page listed the member's birthday as "10-2-83." It also contained a photograph posted next to the description, showing a "three-quarter view" of an embracing couple. Counsel and the court agreed that the couple appeared to be appellant and Ms. Barber. A "blurb" posted on the profile stated as follows:

I HAVE 2 BEAUTIFUL KIDS.... FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!

The State offered the printout to rehabilitate Gibbs's credibility, and to bolster Gibbs's claim that Ms. Barber had threatened him before the first trial. Defense counsel objected, arguing that the State had not sufficiently established a "connection" to Ms. Barber, and had failed to question her about the MySpace profile. In response, the prosecutor asserted that the profile could be authenticated as belonging to Barber through the testimony of Sergeant John Cook, the Maryland State police investigator who printed the document.

The trial court then allowed defense counsel to voir dire Sergeant Cook, outside the presence of the jury. The following transpired:

DEFENSE COUNSEL: How do you know that this is her web page? ...

SGT. COOK: Through the photograph of her and Boozy on the front, through the reference to Boozy, to the reference of the children, and to her birth date indicated on the form.

DEFENSE COUNSEL: How do you know she sent it?

SGT. COOK: I can't say that.

Sergeant Cook acknowledged that he could not determine when any particular posting was made. But, he indicated that he visited the Web site on December 5, 2006, the date that appeared on the printout.

The court ruled that it would admit a single, redacted page from the MySpace printout, containing only the photo next to a description of the page creator as a 23 year-old female from Fort Deposit, and a portion of the blurb, stating: "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!"

Without waiving appellant's objection, defense counsel agreed to the following stipulation, in lieu of Cook's testimony:

If asked, Sergeant Cook would testify that he went onto the internet to the web site known as MySpace.... From that site he downloaded some information of a posting that someone had put there.

That posting contains a photograph which the witness would say he recognizes as a photograph of Jessica ... Barber, who testified, ... that she is the defendant's live-in fiancé; and that it also contains a date of birth, to wit October 2nd, 1983, which the witness would testify is the date of birth that Jessica Barber gave as her date of birth.

When this exhibit, the download, comes to you, you are going to see that it has a great—that most of its content has been redacted; this

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