Baires v. State

• Decision Date: 28 January 2021
• Docket Number: No. 955, Sept. Term, 2019,955, Sept. Term, 2019
• Citation: 245 A.3d 37,249 Md.App. 62
• Parties: Fernando BAIRES v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

249 Md.App. 62

245 A.3d 37

Fernando BAIRES

v.STATE of Maryland

No. 955, Sept. Term, 2019

Court of Special Appeals of Maryland.

January 28, 2021

Argued by: Mary Lloyd Patton (Law Office of M. Lloyd Patton, on the brief) Baltimore, Maryland for Appellant

Argued by: Benjamin A. Harris (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, Maryland for Appellee

Panel: Graeff, Beachley, Wells, JJ.

Wells, J. The State alleged that appellant, Fernando Baires, shot two men on the parking lot of an apartment complex. One man died. As a result, the State charged Baires with first-degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, use of a handgun in a crime of violence, and participation in a criminal gang. After a four-day trial, a jury sitting in the Circuit Court for Prince George's County convicted Baires of all counts. The court sentenced him to a combined term of life imprisonment plus 20 years. Baires filed a timely appeal and poses two questions, which we reproduce verbatim:

1. Did the trial court err by admitting the evidence of unrelated gang convictions?

2. Did the trial court err by limiting the cross-examination of State witnesses?

For the reasons that follow, we hold that the circuit court improperly admitted evidence of two murders committed by members of the criminal organization known as MS-13. While those convictions might have established a pattern of gang activity, they did not establish Baires’ knowledge that he was participating with others in a criminal gang. We conclude that the impact of those convictions, however, was limited solely to Baires’ participation in a criminal gang, and we therefore reverse only that conviction. Additionally, we perceive no error in the court's limitation on the cross-examination of the State's witnesses. Consequently, the remaining convictions are affirmed.

FACTUAL BACKGROUND

A. Events Surrounding the Shooting

On April 17, 2016, Gamaliel Nerio-Rico and Carlos Aguirre Tenorio were shot outside the Newbury Square Apartments on Riggs Road in Hyattsville. Gamaliel Nerio-Rico died of his wounds; Aguirre Tenorio survived.

After an investigation, the police charged appellant Fernando Baires, Manuel Alexander Beltran-Cazun, and Darwin Monroy-Madrid with a variety of crimes including first-degree murder. Baires was tried separately from his codefendants.

The Circuit Court for Prince George's County conducted a jury trial over four days: February 11-14, 2019. Among the eighteen witnesses who testified in the State's case-in-chief was Juan Alejandro Cedron who was the manager of the Newbury Square Apartments. He identified the location of the shooting as well as surveillance video that was taken of the scene at the time of the shooting.

Lea Flores lived with victim Aguirre Tenorio in an apartment at Newbury Square. She testified that she knew codefendants Beltran-Cazun and Monroy-Madrid and had seen them at the Newbury Square Apartments. On the night of the shooting, Flores was at the Galaxy Nightclub, just off Riggs Road in Hyattsville, with victims Aguirre Tenorio and Gamaliel Nerio-Rico. She testified that codefendants Beltran-Cazun and Monroy-Madrid were also at the club that night. However, Baires, who later testified, claimed he had never been to the Galaxy Nightclub.

Walter Cedillos Pineda was at the Galaxy Nightclub on the night of the shooting. He was with both victims at the time of the shooting. He could not identify Baires as one of the assailants, however. At the nightclub that night was Gamaliel Nerio-Rico's brother, Carlos Nerio-Rico. He testified that he did not see Baires there.

At the time of the shooting, Tyler Lemus, a resident of Newbury Square Apartments, was at home and heard shots just before 3:00 a.m. Lemus looked out of his window and saw a man lying in the street. Two other people were running and shooting. Lemus could not identify Baires as one of the shooters.

After the shooting, the victims were taken to Prince George's County Hospital's emergency room. Dr. Anthony Shiflett, an emergency room physician who treated Aguirre Tenorio, testified that had he not provided treatment, Aguirre Tenorio would have died from the injuries he sustained during the shooting. Additionally, Dr. Sasha Breland of the Office of the Chief Medical Examiner, testified as an expert in the field of pathology. After reviewing and identifying Gamaliel Nerio-Rico's autopsy report, Dr. Breland opined that Nerio-Rico died as a result of gunshot wounds.

While the surviving victim, Aguirre Tenorio, was in the hospital, Detective Ruben Paz conducted a blind photographic array two days after the shooting with Aguirre Tenorio. In the course of viewing Paz's array, Aguirre Tenorio identified Baires as one of the shooters. Later at trial, Aguirre Tenorio, testified that Baires was one of the shooters.

B. Baires’ Interview with Detective Luis Cruz

The State called Detective Luis Cruz as a witness. Cruz testified that he conducted witness interviews regarding the shooting. Based on the interviews conducted, according to Cruz, the detectives developed several suspects, initially identifying codefendants Beltran-Cazun and Monroy-Madrid as two suspects. As part of the witness interviews, Cruz interviewed Baires. On cross-examination of Cruz, the trial judge did not allow Baires’ counsel to question how the detectives developed the suspects and whether Baires made statements to Cruz in the interview. The trial judge found that such an attempt involved questioning that was beyond the scope of what the State questioned Cruz about, ruling that counsel for Baires "can only cross[-examine] on what door is opened" by the State on direct examination and that the State "didn't open that door."

C. Testimony of Beltran-Cazun

The State also called codefendant Beltran-Cazun to testify. Beltran-Cazun testified to his familiarity of Monroy-Madrid and Aguirre Tenorio, the orders he received from another MS-13 gang member to kill Aguirre Tenorio that night, and his presence at the Galaxy Nightclub prior to the shooting. Beltran-Cazun further testified that after leaving the nightclub, he and another MS-13 member went to Newbury Square apartments and met with Monroy-Madrid and an individual whom he knew as "Stuart" (who Beltran-Cazun later testified that he believed to be Baires but "wasn't quite sure") to carry out MS-13 gang orders to kill a member of a rival criminal organization known as "the 18th Street gang." The trial judge limited the cross-examination of Baires’ counsel by not allowing questions regarding the length of time that Beltran-Cazun was in the interview room with the police as well as potential punishments for MS-13 members. Baires’ mother, Marybell Baires, later testified that to her knowledge Baires had never been referred to as "Stuart."

The prosecutor asked Beltran-Cazun to relate what he believed was his plea agreement with the State. The written plea agreement was admitted into evidence as State's Exhibit 36. On cross-examination, the trial judge did not allow counsel for Baires to ask whether "the State will only ask for 35 years total[,]" whether "the State will cap the request for sentence at 35 years," and whether his imprisonment would be "no more than 35" years.

D. Retired Sergeant George Norris’ Testimony

The State called former Prince George's County Police Sergeant George Norris to testify as an expert witness regarding MS-13. Norris helped implement Prince George's County's gang unit in 2002 and worked as a sergeant in that unit until he retired in 2017. He traveled to El Salvador, where MS-13 has an especially large presence, as well as to other Latin American countries, to learn about gangs and has testified as an expert witness in more than 25 cases regarding MS-13. In this case, Norris testified as to the background, identifiers, and structure of MS-13 generally as well as its presence at the Galaxy Nightclub and in Prince George's County. Finally, Norris opined that the shootings at issue here occurred for the benefit of MS-13.

On cross-examination, counsel for Baires was permitted to ask Norris about his lack of familiarity with the shooting in this case. Baires’ counsel also questioned Norris about whether he had ever met with Baires or with a member of Baires’ family. Norris said that he did not know Baires or his family. The trial judge sustained State objections to Baires’ counsel asking Norris if he knew anything about Baires’ past or whether he knew if Baires had tattoos. Baires’ mother, Marybell, and Baires himself later testified that he does not have tattoos.

E. Gang Evidence

The State also called Prince George's County Detectives Michael Genung and Denise Shapiro to testify. Their comparatively brief testimonies consisted of describing homicides committed by MS-13 members against 18th Street gang members in Prince George's County.

Genung testified about a homicide that occurred on June 10, 2016. This homicide, like the homicide that Baires was charged with committing in April 2016, occurred in Hyattsville, Prince George's County, Maryland. The State questioned Genung regarding MS-13 gang member Christian Alvares Beltran, who was convicted of the June 10, 2016 murder. Counsel for Baires made no objections to the testimony. However, after cross-examination, when the State moved to enter a copy of the certified conviction of Alvares Beltran, Baires’ counsel objected based on relevancy. The trial judge allowed the evidence to be admitted.

Similarly, Shapiro testified about a homicide that occurred in Adelphi, Maryland in September 2016. Adelphi is near Hyattsville where the shooting took place, and both municipalities are in Prince George's County. The shooting that Shapiro testified to in Adelphi occurred on Riggs Road, the same road as the shooting at issue in this case. Shapiro testified that MS-13 gang member Hernan Sanchez Vasquez killed an 18th Street gang member in a gang-motivated shooting. Counsel for Baires made no objections during this...