Armstaed v. State

• Decision Date: 28 October 2010
• Docket Number: No. 469, Sept. Term, 2009.,469, Sept. Term, 2009.
• Citation: 7 A.3d 169,195 Md.App. 599
• Parties: Kevin ARMSTEAD a/k/a Kevin Armstaed v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

7 A.3d 169

195 Md.App. 599

Kevin ARMSTEAD a/k/a Kevin Armstaed

v.STATE of Maryland.

No. 469, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Oct. 28, 2010.

Michael R. Braudes (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: ^* DAVIS, HOLLANDER, JAMES A. KENNEY, III (Retired, Specially Assigned) JJ.

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

Appellant, Kevin Armstead a/k/a Kevin Armstaed, was indicted in the Circuit Court for Baltimore City and charged with conspiracy to commit murder, murder, use of a handgun in commission of a felony and crime of violence, and wearing, carrying and transporting a handgun. A jury acquitted appellant of first degree murder and the handgun offenses, but convicted him of second degree murder and conspiracy to commit murder. The court then sentenced appellant to thirty years for second degree murder and to a consecutive sentence of life for conspiracy to commit murder. Appellant timely appealed and presents the following questions for our review:

I. Did the trial court fail to properly exercise discretion and/or abuse its discretion in refusing to order a presentence investigation report and in proceeding to sentencing immediately following verdict despite defense counsel's assertion that she needed time for preparation?

II. Does the record fail to reflect that Appellant was convicted of conspiracy to commit murder in the first degree?

III. Did the trial court err in excluding evidence of Jamal Fulton's plea agreement and that he testified at a trial at which he testified inconsistently with the account of Leroy Simon in the present case?

IV. Did the trial court err in admitting evidence that a key State's witness had been threatened and in denying a related motion for mistrial?

V. Was the evidence legally sufficient to sustain a conviction for conspiracy to murder?

For the following reasons, we shall affirm the judgment of the circuit court.

BACKGROUND

On March 20, 2007, Ricardo Paige was found lying dead on the living room floor of his residence at 502 East 43rd Street in Baltimore City, Maryland, having suffered multiple gun shot wounds. He was discovered by his daughter, Deneen Woods, and his grandson, Ricardo McDonald.

Woods testified at trial that she had seen appellant, also known as "Muggs," on the block on prior occasions with Fulton, who she knew as "Nube," and with Trendon and Tremaine Washington, twin brothers, both of whom she knew as "Twin." Fulton lived in the house next door, 500 East 43rd Street. Drugs were a "big problem" with Fulton. On the Friday before Woods's father was murdered, Fulton came to 502 East 43rd Street and argued with Paige. Fulton told Woods that her father was "making his spot hot." Woods responded by telling Fulton that she did not want any drugs to be around her father, and Fulton replied that "he would not say nothing else to [her] dad."

At some point after Paige's death, Woods spoke to a person in the neighborhood she knew as "Lurch." Lurch provided Woods with some information, and Woods conveyed that information to Detective James Lloyd.

Leroy Simon testified that he is known as "Lurch" and that he knew Paige through Woods. In late March 2007, intending to exchange drugs for sex, he was with a woman behind the victim's residence. At that time, he saw appellant, Fulton, known to him as "Nuke," and "Twin" and another unidentified individual near Paige's house.

He observed appellant go into Paige's house first, and then he heard some "tussling." A few minutes later, he saw "Twin" enter the house. Fulton went inside the residence as well.The unidentified person remained outside the residence where he was giving orders.

After appellant, Fulton, and "Twin" were inside, Simon heard gunshots. He then heard sounds as if someone was sweeping up some glass and then saw the trio emerge from the residence.

Simon knew both Tremaine and Trendon Washington, and was aware that one of them was incarcerated at the time. He identified a photograph of Trendon Washington as the person he was referring to as "Twin" in his testimony.

After Simon testified that he spoke to Detective Lloyd on three occasions, the State sought to refresh his recollection with a statement, but Simon testified that he could not read or write. Because there was some confusion about whether Simon ever told police that he saw Fulton enter the residence, the jury was excused, and the tape of Simon's third interview was played to refresh Simon's recollection.

After the jury returned, Simon testified that Fulton was standing outside of the house and actually never went inside. Simon admitted he had made a mistake earlier during his testimony when he said Fulton had gone inside.

Simon continued his testimony as follows:

While appellant, "Twin" (Trendon Washington), and an unidentified third person were inside the residence, Simon heard tussling. After he heard these sounds, Fulton, "who remained outside, hollered, 'handle your business.' " Simon then heard two to three gunshots. After the shooting, Simon saw all four individuals run from the residence.

Simon identified a photo of appellant as a person who was present at the crime scene and had entered the residence. He also identified both Tremaine and Trendon Washington, distinguishing between them and identifying Trendon Washington as the twin present at the scene. Simon was originally unable to identify the person who remained outside the residence, but, after refreshing his recollection, recalled that during the third interview with police, he identified a photograph ofFulton, indicating that he was the one who stayed outside and "gave orders."

Asked why he did not go to the police earlier, Simon stated: "It ain't good to snitch, it ain't good to snitch. Snitchers get stitches, that's how I always looked at it." However, when he learned that the victim was Wood's father, Simon decided to come forward. He learned two days after he saw the individuals at Paige's residence that Paige had died.

On cross-examination, Simon testified that he had not testified in the trial involving Trendon Washington and that he was incarcerated when he first spoke to Detective Lloyd about this case.

Detective Chris Glanville testified that he encountered appellant, and both Trendonand Tremaine Washington, on April 28, 2007. At that time, he recovered a loaded .45 caliber Springfield nineteen eleven model firearm from Trendon Washington. All of the bullets recovered in this case were .45 auto caliber. The ballistics evidence was compared to the recovered firearm, and two of the cartridge casings recovered from the crime scene were fired from that pistol. Other bullet specimens could neither be identified nor eliminated as being fired from the recovered gun. However, three of the five bullets recovered in this case were fired by the same firearm, while the two remaining bullets lacked proper markings for comparison.

Detective Lloyd testified that Trendon Washington, Fulton, and appellant were arrested in connection with this case. Appellant was arrested in Decatur, Georgia, where he gave the name "James L. Jefferson." When appellant was interviewed on April 10, 2008, the parties stipulated that appellant stated: "I already looked up the case. Why am I not just charged with conspiracy, what about the other three?" The charging documents at that time did not mention conspiracy. Also, Detective Lloyd testified that he had never told appellant about a conspiracy charge or that there were three other people involved in the crime.

Detective Lloyd testified that he was aware that DNA evidence had been collected at the crime scene, but the parties stipulated that all of that evidence came back as being consistent with the victim's DNA. Latent fingerprints recovered from the crime scene were also consistent with being from the victim. Additionally, a search warrant was obtained for appellant's home and nothing was recovered from that search relating to this investigation.

The State's last witness was the medical examiner, Dr. Theodore King. According to Dr. King, Paige died of multiple gunshot wounds, and the manner of death was homicide. He could not pinpoint the exact time of death.

After the State rested, defense counsel called Fulton. Fulton testified that he knew appellant and that he knew him by the name of "Muggs." Fulton used to live at 500 East 43rd Street in Baltimore City, "[u]p to prior to [his] arrest" in 2007. Paige, who Fulton knew as "Poppy," lived next door at 502 East 43rd Street. Fulton also knew Woods, Woods's son, Ricky, and Simon, also known as "Lurch." Fulton stated that he was originally charged with Paige's murder.

Fulton testified that, on March 18, 2007, Trendon Washington called and asked Fulton to drive him to the "vial store." Trendon Washington sold drugs, including crack and marijuana, and usually stored his drugs in a vacant house located nearby at 508 East 43rd Street. Fulton, along with appellant, accompanied Washington to the store to buy vials so he could package his drugs.

When they returned, Fulton parked in front of 508 East 43rd Street while Washington went inside. Moments later, Washington emerged and angrily informed them that his drugs were missing and that the back door to that location had been knocked down. Recalling that Paige was outside when the three of them left to go to the "vial store," Washington and appellant then went to Paige's home, while Fulton remained with his car.

Trendon Washington engaged Paige in a conversation, but Fulton could not hear what they were saying. After thatconversation, Washington and appellant returned to Fulton's car, and Washington said, "I'm going to go do that." Fulton understood this to mean that Washington was going to beat and then kill Paige.

Fulton testified that he saw Trendon Washington the next day, but he did not mention Paige or the...