Anderson v. State

Decision Date30 March 2016
Docket NumberNo. 2487, Sept. Term, 2014.,2487, Sept. Term, 2014.
Citation133 A.3d 1266,227 Md.App. 329
Parties Justin T. ANDERSON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Wyatt Feeler (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Carrie J. Williams (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: DEBORAH S. EYLER, ARTHUR and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

JAMES A. KENNEY, III, J. (Retired, Specially Assigned).

Following a trial in the Circuit Court for Montgomery County, a jury convicted appellant, Justin T. Anderson, of attempted first-degree murder, use of a handgun in the commission of a felony and/or crime of violence, wearing, carrying, and transporting a handgun about his person, and possession of a handgun by a prohibited person.1 The trial court sentenced appellant to a total prison term of thirty years, after which he filed a timely notice of appeal.2

Appellant presents the following questions for our consideration:

1. Did the trial court err by not allowing the defense to impeach a State's witness on a prior conviction for a crime that was relevant to the witness's credibility?
2. Did the trial court abuse its discretion by allowing two State's witnesses to testify after a violation of the sequestration rule?
3. Was the evidence insufficient to convict Mr. Anderson of attempted murder?

For the reasons that follow, we shall affirm the judgments of the trial court.

FACTS AND LEGAL PROCEEDINGS

On October 30, 2012, Cariol "Jeff" Toliver was home at 1092 West Side Drive, in Gaithersburg, with his mother Theresa Toliver, his sister Celestine "Tina" Toliver, his son Pierre Toliver, and Pierre's live-in girlfriend, Edwerta Hughes.3 That evening, Emmanuel Gbadyu, a childhood friend of Pierre's whom the Tolivers had not seen for several months, arrived at the West Side Drive house with two other men—appellant and a man later identified as Russell Bass.

Gbadyu told Jeff he wanted to see Pierre. Something in appellant's "out there" demeanor made Jeff uncomfortable, but he permitted Gbadyu to go down to Pierre's basement bedroom.4 Appellant, wearing what Jeff remembered as a red winter hat and black boots, remained in the hallway. While Gbadyu was in the basement, Pierre gave him a polo shirt, which may have been in lieu of $20 that Pierre owed him.

Theresa, also having "vibes" and not wanting the men in her house, told Pierre that the three men had to leave. They left through the front door and walked to a white Cadillac parked in front of the house.5

Jeff exited the house to make sure the men left and saw appellant pointing a small gun at Gbadyu, who was sitting in the driver's seat of the car. Shots were fired, some toward Gbadyu. He identified appellant, who had been standing by the open front passenger door of the Cadillac, as the shooter.

Afraid of being shot, Jeff ran and tried to enter his house as appellant "took off." The front door was locked, so he ran to the back of the house and entered through the basement door. Meanwhile, Theresa had dialed 911.

Theresa testified that she saw a man she believed to be appellant standing outside the car, holding something in his hand. Although she could not identify what he was holding, she heard two gunshots. During her call to the 911 operator, which was played for the jury, she identified the shooter as a black man wearing a red cap.

Tina, looking out an upstairs window, saw Gbadyu get into the Cadillac. When she heard a pop, she realized that he was being shot by appellant. Although she did not see a gun, she said she knew appellant shot Gbadyu because she heard a shot and then saw Gbadyu fall. Thereafter, she said, appellant walked around to the back of the house and returned a few minutes later.

Jeff and Pierre went outside, and they, along with Bass, who had been in the back seat of the car during the shooting, tried to help Gbadyu out of the car. A few minutes later, Jeff and Pierre saw appellant walking back from the same direction in which he had left. Although he said that appellant had been holding a gun when he ran away, Jeff did not see a weapon when he returned. Afraid that appellant might still have the weapon, Bass (the individual who arrived at the Toliver house with Gbadyu and appellant) and Pierre ran toward a nearby park, and Jeff ran the other way.

When Pierre heard the police sirens, he returned to his house to find appellant "holding" Gbadyu. The responding police officers described appellant, who was wearing a black jacket and red hat, as "standing over" Gbadyu when they arrived at the scene. Because appellant told the officers that Gbadyu had a gun, the officers handcuffed Gbadyu, appellant, and Pierre for safety reasons. An unidentified person appeared and informed the police that appellant was the person who had shot Gbadyu; when appellant heard that statement, he began to laugh.

Gbadyu was removed to the closest trauma center with life-threatening injuries. He suffered several gunshot wounds

to his lower back, abdomen, and face. A bullet fragment was recovered from his body.6

The police found no weapon on appellant or in the Cadillac. They did recover two .380 caliber handgun shell casings from the ground nearby and another from the interior of the Cadillac.

On November 4, 2012, a neighbor of the Tolivers, Alvaro Correa, notified the police that he had found a handgun under an overturned trashcan in his backyard. It was a Walther PPK semi-automatic, which fired .380 bullets and was later determined to be operable. The State's firearms examiner concluded that the shell casings recovered from the scene of the shooting were fired from the Walther. There were not enough individual characteristics present in the bullet fragment removed from Gbadyu's person to either identify or eliminate it as having been fired by that gun.

A gunshot residue test revealed one particle of one-component gunshot residue on one of Bass's hands, which could have come from the discharge of a firearm or from "other sources in the environment." Eight particles of three-component gunshot residue were found on appellant's right hand that, in the gunshot residue expert's opinion, could only have come from the discharge of a firearm. The expert explained, however, that did not necessarily mean that appellant was the person who pulled the trigger; he could have obtained the residue by being in close proximity to another person firing a gun.

At the close of the State's case-in-chief, appellant moved for judgment of acquittal, arguing that the State had failed to adduce any evidence that appellant possessed the necessary specific intent to kill or cause grievous bodily harm to support a charge of attempted murder. Because the State presented no evidence of any planning by appellant or a disagreement between appellant and Gbadyu, the most it had shown was that appellant was standing by his car and fired two shots into it while the victim was inside.7 And, in the absence of a predicate violent crime, he could not be convicted of the use of a firearm charge. Defense counsel also argued that the remaining firearm charges could not stand because no evidence sufficiently established that appellant carried or possessed a handgun. In support of that argument, he stated that no witness except Jeff saw a gun in his hand, and that Jeff had a motive to lie because his son, Pierre, may have been the shooter. The court denied the motion.

Appellant presented no evidence, and at the close of all the evidence he renewed his motion for judgment of acquittal for the reasons previously asserted. The court again denied the motion.

DISCUSSION
I.

Appellant first argues that the trial court erred in declining to permit him to impeach Pierre Toliver with a prior conviction for carrying a concealed weapon. He contends that, information regarding that conviction would have served to impeach Pierre's credibility because carrying a concealed weapon is a crime involving deception and shows a willingness to lie under oath.

During a bench conference, there was the following exchange:

[DEFENSE COUNSEL]: He has a prior conviction for carrying a concealed weapon.
[PROSECUTOR]: I don't think he actually has that conviction.
[DEFENSE COUNSEL]: He has the conviction.
[PROSECUTOR]: He had the conviction but it's not impeachable.
THE COURT: Well, he does not have the conviction?
[PROSECUTOR]: He does have the conviction.
THE COURT: He does have the conviction but—
[PROSECUTOR]: It's not impeachable, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: And we maintain that it is, Your Honor, the test for when a conviction is impeachable is whether it shows hiding or deception, or attempting to hide or deceive. By definition, if someone is concealing a weapon, they have the propensity to deceive and to hide things.
THE COURT: Okay. As far as the time, 15 years, it's within 15 years?
[PROSECUTOR]: It is, Your Honor, but it's not one of the enumerated—
THE COURT: No I understand it's not. I know your objection.
[PROSECUTOR]: Oh yeah, I'm sorry. I think it was—
[DEFENSE COUNSEL]: It was in 2006.
THE COURT: 2006, okay. Yes, it is not. It is not and I am going to rule that it not [sic] an impeachable offense.
Maryland Rule 5–609

provides, in pertinent part:

(a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or objecting party.
(b) Time limit. Evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction.

We employ a three-part test under Rule 5–609

to determine whether a witness may be impeached with...

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