Batista v. State, 091619 MDSCA, 195-2017

Docket Nº:195-2017
Opinion Judge:REED, J.
Judge Panel:Leahy, Reed, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.
Case Date:September 16, 2019
Court:Court of Special Appeals of Maryland




No. 195-2017

Court of Special Appeals of Maryland

September 16, 2019

Circuit Court for Baltimore City Case No. 116062020-23

Leahy, Reed, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.



On January 11, 2017, a jury in the Circuit Court for Baltimore City found Nehemias Batista ("Appellant") guilty of first degree murder of Edwin Rivera, attempted first-degree murder of Mario Vasquez, conspiracy to commit first-degree murder of Rivera, conspiracy to commit attempted first-degree murder of Vasquez, first-degree assault of Oscar Guerrero, conspiracy to commit assault of Guerrero, and second-degree assault of Erma Merivia. On February 22, 2017, the circuit court merged, for the purposes of sentencing, one of the conspiracy to commit attempted murder convictions and the conspiracy to commit assault conviction. The circuit court then sentenced appellant to life imprisonment, suspending all but thirty-five years.

Appellant noted this appeal and presents two questions for our review: I. Did the circuit court err in failing to ask several proposed questions during voir dire?

II. Did the circuit court err in failing to vacate Appellant's conviction for conspiracy to commit first-degree murder and one of his convictions for conspiracy to commit murder?

For the following reasons, we answer the first question in the negative. For the second, we find that the circuit court erred in failing to vacate two of Appellant's convictions for conspiracy, and thus reverse and remand for further proceedings consistent with this opinion.

Factual & Procedural Background

This appeal follows a shooting that occurred in the early morning hours of February 6, 2016, at the Santa Clara Bar & Restaurant ("the Bar") in the Fells Point Area of Baltimore City. Axel Martinez ("Martinez") and his friends, Edwin Rivera ("Rivera"), Mario Vasquez ("Vasquez") and Oscar Guerrero ("Guerrero") went to the Bar around 10:30 p.m. on February 5, 2016. Martinez noticed three men come into the establishment and sit at the bar. He further observed that, while playing pool with Guerrero, two of the three men got up from the bar while wearing masks from the movie "V for Vendetta, 1" headed towards the door, and withdrew guns. Martinez later testified that only one individual fired his gun. The bullets from that gun hit both Rivera and Vasquez. The same individual also shot at Guerrero and Martinez, who was able to run and hide in the kitchen. After hearing the men leave, Martinez returned to find Rivera lying on the floor of the Bar. Rivera died later that day. During trial, Mr. Martinez claimed to have heard five gun-shots and that the shooter had a neck tattoo, which was later identified as the same tattoo on Appellant.

Guerrero recalled going to the Bar with Rivera, Vasquez and Martinez. He admitted to drinking several beers, eating food and playing pool for about three and a half hours. In the middle of playing pool, Guerrero looked over to see shots being fired at his friends. After hearing three shots, Guerrero attempted to run but was shot in his foot. Guerrero confirmed that both individuals wore masks and noted that one individual was dark-skinned, heavy set, and wore a hooded-jacket. Guerrero remembered seeing only one weapon but believed both individuals had weapons.

Vasquez also testified that he drank several beers, ate food and played pool at the Bar prior to the shooting. Vasquez also testified that someone held a gun on him and that he was shot in his right cheek. Two witnesses, identified as Irma Maravilla and David Hernandez, also went to the Bar the night of the shooting. While they did not see the shooters, they recalled the masks the shooters wore.

Shortly after the shooting, at around 1:00 AM, a taxi cab driver, Jose Romero ("Romero"), arrived at the Bar. One person approached Romero to enter the taxi and told Romero that other passengers were coming. Romero testified that once all the individuals got into the cab, he took them to a location on North Point Road. The testimony continued: [Ms. Deihl]: And why did they - what did they say when they weren't going to pay you?


[Mr. Romero]: They didn't have any money.

[Ms. Deihl]: Okay. Did they say anything else to you?

[Mr. Romero]: Yes.

[Ms. Deihl]: What did they say?

[Mr. Romero]: That they had killed.

[Ms. Deihl]: That they had what?

[Mr. Romero]: that they had killed


[Ms. Deihl]: Ok. Did they say anything else to you besides we're the ones that had killed?

[Mr. Romero]: Yes.

[Ms. Deihl]: What did they say?

[Ms. Romero]: That I didn't know them. That I shouldn't say anything.

Romero was later shown a photo array but was unable to identify anyone, including the individual who had stated that he had killed someone.

Following the shooting, an investigation into the incident began. Aneila Harvey, a crime lab technician from the Baltimore City Police Department, recovered a black hat, black leather jacket, beer bottles, two live cartridge cases, and two projectiles from the scene around 2:00 a.m. on February 6, 2016. After researching the phone number that had called Romero's taxi cab company, the police determined that the call had come from a residence on Gough Street in Baltimore City.

The morning after the incident, the police were able to obtain a search warrant in Baltimore County to search the residence in question. During Detective Michael Moran's search, he recovered a .45 handgun in a linen closet, wrapped in a towel, along with a letter addressed to Melvin Zavala. Also found in the home were three cell phones, a pair of camouflage pants in a book bag, a plastic mask, and a sweatshirt. Detectives also encountered Oscar Melendez, a resident of the Gough Street home. Melendez later testified that a man named Melvin, later identified as Melvin Zavala, and another individual named Juan also lived at the residence. Melendez stated that Melvin came home on February 6, 2016 at about 1:45 a.m. with two other men.

Detective Eric Ragland, lead investigator, assisted Detective Moran with the search. While in the residence, Detective Ragland found Nehemias Batista ("Appellant") and a man identified as "Chicas" inside the home. Detectives found a cell phone and pellet gun on Appellant. Ragland later testified that Appellant and Chicas resembled the shooters in the surveillance footage on the night of the shooter. Police also found Melvin Zavala hiding in the home's basement. At this time, Appellant, Chicas, and Zavala were arrested. No fingerprints could be retrieved from the mask found at the residence or within Romero's taxi cab. However, Detective Ragland testified that Zavala's DNA and the DNA from an "indeterminate minor contributor" were found on the pellet gun found on Appellant.

Back at the police station, Detective Ragland interrogated Appellant. During the questioning, Appellant stated that he had gone to the Bar to meet his girlfriend. Appellant also told Detective Ragland that while he had drawn a pellet gun at the Bar, he did not mean to harm anyone.

At trial, Appellant testified in his own defense and confirmed that he went to the Bar after being dropped off by a friend named Antonio. He also testified that he, Chicas, and Zavala had smoked marijuana at Zavala's home prior to heading out to a bar named Arizona. After spending some time at Arizona and consuming alcohol, the three went to the Bar, where they continued to drink.

While at the Bar, they sat across from Rivera, Vasquez, Martinez and Guerrerro. According to Appellant's testimony, he, Chicas, and Zavala believed the four men across from them were making fun of them. Appellant further testified that he believed Chicas wanted to scare the men for making fun of them, and subsequently pulled out his pellet gun. Appellant then pulled out his pellet gun, but stated that he did not fire it. Instead, Appellant testified that it was Chicas who fired his weapon and shot at least one person. Appellant stated that he, Chicas, and Zavala then got into a cab and returned to Zavala's house. The next morning, Zavala's home was searched and the three men were arrested.

Prior to the beginning of Appellant's trial, the circuit court presided over a two-day voir dire process. During the first day of voir dire, the court asked prospective jurors numerous questions. On the second day, the court asked the same questions to an additional panel of prospective jurors.

After propounding the initial set of questions, the circuit court asked the parties if they wanted to ask any additional questions. The State responded by requesting five additional questions: whether anyone had strong feelings about the charges (specifically, murder and attempted murder), whether anyone was not at least eighteen years old, whether anyone was not a resident of Baltimore City, whether anyone did not speak English, and whether the anticipated length of trial would be an undue burden for anyone.2 The circuit court agreed to ask the question about strong feelings, but declined to ask the other four questions suggested by the State.

The circuit court also asked Appellant's counsel whether she requested any additional questions. Defense counsel indicated that she wanted the circuit court to ask prospective jurors if anyone spoke Spanish. At the bench, Appellant's counsel indicated that Spanish speakers may choose to interpret Appellant's testimony instead of relying on the translation of the court-provided translator, which Appellant's counsel seemed to think should be avoided. The circuit court ultimately denied Appellant's request to ask prospective jurors if anyone spoke Spanish.

After the trial began, on...

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