Baker v. State

• Citation: 853 A.2d 796,157 Md.App. 600
• Decision Date: 15 July 2004
• Docket Number: No. 681,681
• Parties: Michael Lee BAKER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

853 A.2d 796

157 Md.App. 600

Michael Lee BAKER v. STATE of Maryland.

No. 681, Sept. Term, 2002.

Court of Special Appeals of Maryland.

July 15, 2004.

Michael R. Braudes (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Rachel Marblestone Kamins (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DAVIS, JAMES R. EYLER and ADKINS, JJ.

JAMES R. EYLER, Judge.

A jury in the Circuit Court for Harford County convicted Michael Lee Baker, appellant, of first degree assault, second degree assault, and use of a handgun in the commission of a crime of violence. The trial court sentenced appellant to a term of twenty years' incarceration with all but ten years suspended in favor of probation. Appellant presents six questions on appeal:

I. Did the trial court err in refusing to propound appellant's requested voir dire questions?

II. Did the trial court err in permitting the State to question appellant as to whether he had made a handgun available to the police?

III. Did the trial court err in denying appellant's motion for a mistrial after the State asked a series of leading questions?

IV. Did the trial court err in admitting evidence that appellant made a statement to a police officer for the alleged purpose of misleading the police?

V. Did the trial court err in precluding a defense witness from testifying?

VI. Did the trial court err in refusing to compel the State to investigate an allegation against the victim of appellant's assault?

We answer "yes" to questions I and IV and reverse the judgments of the circuit court. We do not reach questions II, III, and V, but we shall briefly address question VI.

FACTS

The charges in this case arose from a shooting in the early hours of June 23, 2001. Appellant did not deny that he shot Daniel Gray but claimed that he did so to defend his girlfriend, Gracia Kubanek, from a sexual assault by Gray, and in self-defense.

Appellant and Kubanek met in Germany in 1997 while appellant was stationed there in the Army Reserves. Kubanek owned a hair salon in Germany, and after appellant returned to the United States, he helped her establish a salon in Bel Air, Maryland. Kubanek traveled back and forth between Germany and Maryland to run both businesses. Appellant was the manager of the Maryland salon, had an office in the salon, and sometimes lived in the salon. Appellant was also Kubanek's boyfriend, and he lived in her home when she was in Maryland.

According to Kubanek,¹ on the night of June 22, 2001, she had dinner with a friend at Georgetown North, a restaurant and bar near her salon. Kubanek had two glasses of wine during dinner. Kubanek took her friend home and returned to the bar around midnight. Kubanek saw Daniel Gray, whom she knew as a customer of her salon, and the two started talking. Between midnight and 2:00 a.m., when the bar closed, Kubanek drank four or five whiskeys with coke.

Kubanek and Gray left together when the bar closed and went to Gray's house, where they stayed for about an hour. Kubanek testified that Gray made sexual advances, which she spurned, and she asked him to take her to the salon, intending to walk home from there.

Gray denied making any sexual advances at his house and said that he told her he had to take her home because he had to get up early the next day.

Gray drove Kubanek to the salon and went inside. According to Kubanek, he went inside to use the restroom. According to Gray, Kubanek invited him in.

Kubanek related the following. Each sat in a chair and smoked a cigarette. After about ten minutes, Gray knelt in front of her chair, kissed her, pushed up her skirt, put his hands on her legs and touched her "entire body." Kubanek told him no, and asked him to leave, but he did not move away from her. About five minutes later, appellant came into the store. Gray stood up. Appellant asked him what he was doing there, then twice told him to leave. A few seconds later, appellant shot Gray in the hand. Appellant then asked to see Gray's identification, and Gray showed appellant his driver's license. Appellant then let Gray leave.

Kubanek acknowledged that, in her first statement to the police, she did not tell them about Gray touching her, and explained, "I could not talk about the thing for a long time because I was ashamed."

Gray testified to the following. When he emerged from the restroom, Kubanek was gathering items to take home, so he sat down and smoked a cigarette. Kubanek sat down, and Gray crossed the room to use an ashtray on the table next to her. He crouched down and rested his arms across her knees and kissed her. He had his hand on her leg and knee. Appellant entered the salon. He was very upset, and yelled and screamed at Kubanek. He told Gray that Kubanek was his woman, and Gray retorted, "It doesn't appear so." Appellant went behind one of the work stations in the rear of the salon and returned with a gun. He pointed the gun at Gray and shot him in the hand. Appellant then approached Gray, put the gun to his head, and threatened to kill him. Appellant locked the door and asked to see Gray's driver's license to find out who he was and where he lived. Appellant threatened that if he saw him again in the salon or talking to Kubanek, he would kill him. After Gray left the salon, he drove to the Bel Air Police Department, about half a mile away, and was taken to the hospital by ambulance.

Appellant testified to the following. Around 4:00 A.M., he became worried because Kubanek was not home. There was no telephone in the house, so he went to the salon in case she needed to get in touch with him. When he arrived at the salon, he looked in the window and

saw Mr. Gray in between Gracia's legs, doing some action with his hands.... When I got to the glass door I saw his hands going up on both sides of her — he was on his knees, pushing her dress up to her buttocks, you could see her underwear. His head was in between her legs and he was on her left side, on the inside of her left side, going side to side and he was leaning into her.

Appellant, who testified that he had been a police officer at one time, observed that

I know what force is, he was holding her down, she was trying to push him off, and she was I guess just played out, you could see she was exhausted, I don't know how long she had been in that situation.

He said, "[S]he was doing the best she could, but it wasn't much."

According to appellant, he entered the salon and said to Gray, "What are you doing here. That's my woman." Gray "went back down and put his hands on her again." Kubanek told Gray to leave, but he did not, and appellant told him to leave. Appellant stated that he had been trained as a police officer to notice certain indications that people were going to become violent. He saw the indications in Gray, and he also noticed that Gray smelled of alcohol.

Appellant explained that he wanted to get Gray away from Kubanek but was concerned that if he and Gray fought, one of them might fall on Kubanek or cause glass from shelving to shatter and injure her. Instead, appellant retrieved his weapon "to disengage [Gray's] violence as quickly as possible." After appellant retrieved the gun, Gray was still "in a hostile position." Lest Gray think the gun was not real, appellant shot him in the hand.

Appellant confirmed that he locked the door and asked to see Gray's identification, explaining that, because he had used a handgun, he knew there would be a police investigation. He said that he thought that Gray was "some kind of sexual predator" and wanted the police to know his "method of operation." After Gray showed him his driver's license, he told Gray to leave.

According to appellant, Kubanek was hysterical, and he was upset because he had never shot anyone before. He put the gun in his "office area" and left. He drove somewhere to think, passed out for a while, then ate breakfast and returned, intending to go to the police station. While he was walking to the police station, an officer arrested him.

Additional facts will be set forth as needed in our discussion of the issues presented.

DISCUSSION

I. — Voir Dire

At trial, appellant objected to the trial court's failure to propound several voir dire questions he had requested:

[N]umber 12 concerning the defendant's election to testify on his own behalf, whether or not any of the people in voir dire would consider that he would be testifying truthfully because he's on trial and would they be unable to weigh his testimony in the same manner as any other witness.

Also Number 13, which states that the defendant has an absolute constitutional right not to testify and would you draw any inference of guilt from the defendant's election not to testify or decision not to testify.

Number 14 says that the State has the burden of proof to prove the defendant's guilty beyond a reasonable doubt, the defendant does not have to prove his innocence. Would you draw any inference of guilt if this defendant elects not to present any testimony.

Number 15, whether or not you would tend to view the testimony of witnesses called by the defense with more skepticism than those called by the State, merely because they were called by the defense.

Number 17, if after hearing all the testimony of the State, you think that more likely than not the defendant is guilty, but you're not convinced beyond a reasonable doubt of his guilt, would you have any difficulty in finding the defendant not guilty.

Number 19, do you have any bias or prejudice concerning handguns which would prevent you from fairly weighing the evidence in this case.

And finally, Number 20, is there anything about the nature of the allegations in this case which would prevent anyone from sitting as a juror.

The trial court asked defense counsel if he wished to be heard "with respect to the failure of the court to issue those questions or the legal basis for your exceptions." Counsel replied "not right now,"...