Bacote v. State
| Decision Date | 23 April 2018 |
| Docket Number | No. 1815,1815 |
| Parties | MICHAEL JAMES BACOTE v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Prince George's County
Case No. CT140879X
UNREPORTED
Eyler, Deborah S., Shaw Geter, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Harrell, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Appellant, Michael James Bacote, was charged by indictment in the Circuit Court for Prince George's County, with (1) Controlled Dangerous Substance (CDS) possession with the intent to distribute; (2) possession of cocaine; (3) wearing, carrying and transportation of a handgun; (4) possession of a firearm in relation to a drug trafficking offense; (5) possession of a firearm by a prohibited person; (6) possession of a firearm by a person convicted previously of a felony; and, (7) CDS possession in a large amount. Bacote was tried (the first time) over 16-18 November 2015, ending in a mistrial after the jury was unable to reach a unanimous verdict. The State retried Bacote over 26-28 July 2016. The second jury returned guilty verdicts on all counts. This appeal ensued.
Bacote poses the following questions for our consideration, which we have rephrased modestly:
On 2 May 2014, Prince George's County Police Officer Shea Jefferson executed a traffic stop of a vehicle on running a red light. As Officer Jefferson approached the stopped vehicle, the driver drove from the scene. Approximately one mile later, the driver exited his vehicle and fled on foot toward the rear of a townhouse community. Officer Jefferson pursued the driver, catching and placing him under arrest.
The driver was identified as Michael James Bacote. After the arrest, Officer Jefferson, canvassed the area in the vicinity of the escape route and arrest, recovering a backpack found behind the townhouse community. The officer retrieved from the backpack a firearm and approximately one kilogram of what proved to be cocaine. Officer Jefferson acknowledged that, as he saw Bacote running, he did not see him actually in physical possession of the backpack.
The grand jury returned, on 19 June 2014, a seven-count indictment against Bacote. In November 2014, Dr. William Vosburgh, a supervisor in the forensic science division of the Prince George's County Police Department, received from the Assistant State's Attorney assigned to prosecute Bacote a request for expedited analysis of fingerprint cards containing latent fingerprints recovered from the weapon and narcotics found in the backpack. The prosecutor, in his email request to Dr. Vosburgh, explained the need for expedition as "[t]his [matter] is in for trial on December 2nd, and [he knew] fingerprints c[ould] normally take a great deal of time, but this is a lot of drugs and [it was] very important to [him] and [his] office that [he] secure [a] conviction."1 Dr. Vosburgh responded to the prosecutor's request stating, in short, that his office would be unable to complete the analysis before the stated trial date. Unwilling to accept this response, the prosecutor reached-out to Ms. Mertina Davis, a subordinate forensic scientist of the fingerprint unit, who conducted a manual analysis of the submitted fingerprint cards. Ms. Davis matched one of the fingerprints on the cards to Bacote's left ring finger.
Bacote was tried over 16-18 November 2015, which ended in a mistrial after the jury was unable to reach a unanimous verdict. The State elected to retry Bacote. On 26 February 2015, Bacote motioned the trial court for transcription of the grand jury testimony. The trial court denied his motion as moot, explaining that "no testimony was taken." Bacote took no additional action on that score.
Bacote's retrial began on 26 July 2016. On the first day, the parties stipulated there would be no mention during the retrial of a prior felony conviction of Bacote. Infurtherance of this stipulation, in the context of the "possession of a firearm by a convicted felon" count, the parties agreed to refer to Bacote only as a "disqualified person," rather than a convicted felon.
During voir dire, the trial judge described to the venire the events giving rise to Bacote's indictment. In his description of Bacote's arrest, the judge stated, "[u]ltimately [Bacote] was caught and found with a backpack full with - excuse me, with a kilogram of cocaine and a loaded handgun and the parties agreed that this possession of this handgun was illegal possession of a handgun." At this point, Bacote asked to approach the bench. The State approached as well. Bacote stated to the judge that The trial court acknowledged at the bench his mischaracterization, but did not correct it to the jury. Bacote did not request explicitly that the trial judge make this distinction clear to the jury. Additionally, he did not object when the trial judge, without correcting before the jury that the backpack was not found in Bacote's physical possession, proceeded to the next voir dire question. At the end of voir dire, Bacote indicated his satisfaction with the voir dire as posed.
During Bacote's cross-examination of Officer Jefferson, he attempted to advance the notion that he fled from Officer Jefferson's traffic stop and bailed-out of his car, not because he was attempting to elude law enforcement's recovery of any contraband he may have possessed, but because there was an outstanding child non-support warrant against him at the time, for which he feared incarceration if apprehended.2 The trial court sustained the State's objections to Bacote's cross-examination of Officer Jefferson relating to the existence of a child non-support warrant. No actual outstanding child non-support warrant (or a copy of same) against Bacote was admitted into evidence. Bacote elected not to testify at trial.
During its deliberations, the jury sent a note to the trial judge that included the question: 3 In discussing with counsel how to respond, the trial judge acknowledged that "[he] erroneously left Count 5 [firearm possession with a felony conviction] and Count 6 [illegal possession of a regulated firearm] on the verdict sheet." The parties agreed that the trial court would provide the jury with a new verdict sheet and advise the jury that "Count 5 [was] included in error." The trial court responded in writing (initialed by both parties) to the jury's note that A new verdict sheet was given to the jury; however, the trial judge did not instruct the jury to disregard the error on the first verdict sheet. Bacote did not object to this state of affairs. On 28 July 2016, the juryreturned guilty verdicts on each count of the indictment. Bacote was sentenced to 25 years of active incarceration.
On 16 November 2017, Bacote's mother contacted the Prince George's County Circuit Court Reporter's Office (through a Public Information Act request) to obtain the grand jury transcripts of its investigation resulting in Bacote's indictment. She spoke with Ms. Phyllis Hernandez, the supervisor of the court reporter's office. Ms. Hernandez informed her (just as the trial judge did in dismissing Bacote's 26 February 2015 grand jury transcript request) that there was no audio recording or transcript of the grand jury proceeding.
In reply, Bacote asserts that his statement to the trial judge during the bench conference alerted the judge to the mischaracterization, and "made clear [his] objection to the statement of the court . . . ." Moreover, if we were to find Bacote's "objection" insufficient to preserve this question for our consideration, then we should review it on its merits for plain error.
Maryland Rule 4-323(c)4 governs the "manner of objections during jury selection," including objections made during voir dire...
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