Bell v. State
| Decision Date | 01 September 1996 |
| Docket Number | No. 637,637 |
| Citation | 114 Md.App. 480,691 A.2d 233 |
| Parties | Justin BELL v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Stephen L. Prevas, Baltimore, for Appellant.
Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Sandra A. O'Connor, State's Attorney for Baltimore County, Towson, on the brief), for Appellee.
Submitted before DAVIS, HARRELL and HOLLANDER, JJ.
On June 23, 1995, Justin Bell, appellant, shot and killed Bryan Maxwell and seriously wounded the victim's brother, Christopher Maxwell. The central issue at appellant's trial was whether appellant acted in self-defense. A jury in the Circuit Court for Baltimore County convicted appellant of manslaughter and attempted first degree murder, as well as use of a handgun in the commission of each of those crimes; appellant was sentenced to a total of 25 years in prison. Five questions, which we have rephrased slightly, are presented on appeal:
I. Did the trial court err in permitting the State to cross-examine appellant by referring to statements made by a witness the State knew was unavailable to testify at trial?
II. Did the trial court err in admitting improper opinion evidence?
III. Did the trial court err in precluding the admission of evidence of the prior conduct of the murder victim?
IV. Did the trial court err in precluding appellant from impeaching the attempted murder victim with a prior conviction?
V. Did the trial court err in precluding appellant from impeaching the attempted murder victim with evidence of a prior bad act?
We answer the first question in the affirmative. Accordingly, we shall reverse and remand for a new trial. For the guidance of the court on remand, we shall briefly address the remaining issues.
The events in issue occurred at approximately 2:00 a.m., in the vicinity of a shopping center and a Meineke parking lot located in Parkville. Christopher Maxwell was the State's principal witness. 1
On the evening of June 22, 1995, Justin Bell, who was then 19 years old, went to the Friendly's Restaurant located on Harford Road in Baltimore County to meet his friend, Cory Tart, who was an employee of the restaurant. After the restaurant closed, appellant remained in the parking lot, talking with Tart, Joey Buckler, and Danny Dimena. 2 The group left Friendly's at about 1:30 a.m. and walked to a nearby 7-Eleven store. After purchasing some food, Dimena left the group to go home; appellant, Tart, and Buckler walked northbound along Harford Road.
Christopher, who was 19 years old at the relevant time, and Bryan, who was then 20 years of age, had spent the evening at a bar, where Christopher consumed five or six beers. Christopher acknowledged that he previously had problems with alcohol. According to the autopsy report, Bryan was legally intoxicated at the time of death; Christopher conceded that Bryan drank "a lot." The Maxwells left the bar at about 2:00 a.m., in Bryan's car. They soon passed a group of three men, later identified as appellant, Tart, and Buckler, walking along Harford Road. An unidentified object then hit Bryan's car.
Bryan, who was driving, became upset and drove back to the area where he and Christopher had seen the three men. After pulling onto a side street, Bryan directed Christopher to run after the "three boys" and "keep" them until Bryan could park the vehicle and arrive at the area. Before leaving the car, Christopher put a tire iron in the waistband area of his pants. 3 When Christopher caught up with the three men, he was "cussing" and "yelling" and asked them if they had a "beef." The men denied this and Christopher told them not to "play [him] for a fool."
According to Christopher, Bryan arrived within seconds. Christopher asked him, "which one was it?" Bryan identified appellant and stepped toward him. Christopher testified that before Bryan could say or do anything, and when he was within three feet of appellant, Buckler told Bell, "you better go ahead and use it." Christopher claimed that appellant produced a gun and shot Bryan, who nonetheless remained standing. Christopher acknowledged in his testimony that Bryan would have charged at anyone who pointed a gun at him. At that point, Christopher claimed he told appellant that he was not afraid of his "little BB gun." Appellant pointed the gun at Christopher, while he and his friends "backed up the sidewalk...." Christopher picked up a nearby picnic bench and threw it at appellant, intending to "distract them so I could get them or make him use up the bullets so I could get to him or so my brother wouldn't get shot again." As Christopher threw the bench, appellant fired once, and missed. Christopher took the tire iron from his waistband and threw it at appellant while running away. According to Christopher, as he tried to run, appellant fired several shots, hitting him in the back and elbow. 4
The State called two other witnesses who observed portions of the occurrence. Clifford Posey was driving a co-worker home when he passed the scene. He testified that he saw three men facing two others. One of the three was holding a gun, and one of the two picked up a bench. He heard four to five shots and, in his rear view mirror, saw one of the men fall. John Shinners was sitting in his van in the parking lot of a shopping center across the street when he heard a gunshot. He saw four men, one of whom was facing three others. He also heard shouting and a man said, "What the fuck did you do that for?" Two men started walking away and another man threw a picnic bench at one of them. The man at whom the bench was thrown turned around and fired four shots. Then, the three men ran away. Over defense objection, both witnesses were permitted to state that they observed nothing prior to the firing of the shots that indicated appellant was facing imminent danger of death or serious bodily harm.
Appellant testified in his own defense. He denied that he or his friends threw anything at a passing vehicle. He explained that as he, Buckler, and Tart were walking north on Harford Road, a car drove slowly past them, travelling in the opposite direction, with its windows partially lowered and the occupants staring at them. After the vehicle passed, it made a U-turn and came back towards them, pulling into a side street and parking. Feeling "paranoid," he urged his friends to jog to escape. Christopher appeared "from around the corner" in front of the three men, screaming and hollering; Bryan came up behind them shortly thereafter. Appellant and his friends tried to back away and assure the Maxwells that they had no quarrel with them. Christopher spit at Joey and said,
Appellant claimed that he thought both brothers had weapons. Before appellant shot anyone, he stated that the Maxwells both gestured at their waistbands. Appellant pulled out his gun, 5 pointed it at the ground, and told the Maxwells that he and his friends were leaving. Bryan lunged at him, saying, When Bryan lunged at Bell, appellant shot him in the chest because he was "scared." Appellant stated, on cross-examination, that he shot Bryan "because as he was gesturing [towards his waist] and after I had already pulled the gun, he came after me." After Bell shot Bryan, he urged him to see a doctor. Bryan replied,
Appellant further testified that he and his friends began to retreat. Christopher was shouting and said that he, too, had a gun, and that his gun was bigger. According to appellant, after Christopher threw a nearby picnic bench at appellant and his friends, Christopher pulled something from his waistband. Thinking that Christopher was about to produce a gun and shoot him, appellant fired several times. The three men then fled to Cory's house, where appellant cleaned the gun, vomited, and went to sleep. The next day, he told Cory and Joey not to discuss what happened or brag about it. He put the gun in a plastic bag and, on his way to work, he threw it into some bushes.
Tart's testimony was essentially consistent with appellant's version of the incident. Tart explained that Christopher was yelling and spit at Buckler. Although appellant told the Maxwells that the three had "no beef" with the brothers, and appellant and the others started to walk away, the Maxwells pursued them. When appellant pulled his gun, one of the Maxwells said: "If you pull it, you better use it." Appellant fired the weapon when Bryan jumped at him. Christopher had his hand on the side of his leg, stating "mine is bigger, mine is bigger." Bell fired again after the bench was thrown.
Three other witnesses testified for the defense concerning the Maxwell brothers' reputations for violent dispositions. Two of these witnesses were police officers and one was a friend of appellant.
Buckler did not appear at the trial. Both Tart and appellant testified, on direct and cross-examination, that they had tried to contact Buckler since the time of the incident, without success.
Additional facts will be included in our discussion of the issues presented.
During cross-examination of appellant, the State questioned him about Buckler's statement to the police. Appellant contends that this line of questioning was improper, because: 1) it placed before the jury hearsay evidence about the incident from a witness who was not present at trial; 2) the State knew that Buckler would not be called as a witness; and 3) it violated appellant's rights under the Sixth Amendment's Confrontation Clause. The State counters that appellant's claim is without merit, because: 1) the prosecutor did not convey substantive evidence to the jury; 2) the prosecutor merely sought to impeach appellant and was not successful in showing any material...
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