Bowers v. State

• Decision Date: 11 January 2021
• Docket Number: No. 3193,3193
• Parties: ANTHONY L. BOWERS v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

ANTHONY L. BOWERS v. STATE OF MARYLAND

No. 3193

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

January 11, 2021

Circuit Court for Baltimore City

Case No. 117034004

UNREPORTED

Graeff, Reed, Gould, JJ.

Opinion by Graeff, 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.

Anthony Bowers, appellant, was charged in the Circuit Court for Baltimore City in connection with a shooting outside a bar on December 11, 2016, which injured five people. The jury convicted appellant of one count of attempted second-degree murder, three counts of first-degree assault, five counts of reckless endangerment, and related firearm counts. The trial court sentenced appellant to 115 years in prison.

On appeal, appellant presents the following question:

Did the circuit court err in allowing the prosecutor to make improper and prejudicial comments during closing argument?

For the reasons that follow, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:50 a.m. on December 11, 2016, Baltimore City police officers responded to Maynard's Cafe following reports of a shooting. Upon arrival, the officers discovered four gunshot victims, along with another victim suffering from related injuries.

The subsequent investigation revealed that, shortly before the shooting, appellant had been involved in a fight on the dance floor at Maynard's. As a result, the owner of the bar, George Marousis, asked appellant to leave the premises and had two of his bouncers, Cornell Thomas and Victor Regusters, escort appellant out of the bar through a side door. As appellant exited, he said to Mr. Thomas, "you got to come out here sometime," which Mr. Thomas took as a threatening statement. Appellant then ran off toward the front of the building. Mr. Thomas went to the front door of the bar to ensure that appellant had left the property.

Security camera footage showed that, after being ejected from Maynard's, appellant ran toward a nearby parking area and then went back to the front door of the bar. Upon his return, appellant pointed a handgun directly at Mr. Thomas and fired 11 shots that went through the front door and windows of the bar, hitting Mr. Thomas and three patrons inside—Roderick Alston, Amani Oliver, and Chante Johnson. Another patron, Bonnie Matter, was struck with flying glass or debris as she stood near the front door. All five victims survived their injuries.

Appellant was indicted on four counts of attempted first-degree murder, four counts of attempted second-degree murder, four counts of first-degree assault, five counts of reckless endangerment, and related firearm charges. After a jury trial, appellant was convicted of attempted second-degree murder with respect to Cornell Thomas; five counts of reckless engagement, one for each victim; three counts of first-degree assault with respect to Mr. Alston, Ms. Oliver, and Ms. Johnson; four counts of use of a firearm with respect to Mr. Thomas, Mr. Alston, Ms. Oliver, and Ms. Johnson; wearing, carrying, and transporting a handgun and illegal possession of a regulated firearm. The jury acquitted appellant of the attempted first and second-degree murder charges pertaining to Mr. Alston, Ms. Oliver, and Ms. Johnson, and the attempted first-degree murder charge with respect to Mr. Thomas.

DISCUSSION

Appellant contends that the circuit court erred in permitting the prosecutor to make improper statements during closing argument. Specifically, he argues that the court erred in allowing the prosecution to: (1) argue the law by advising the jury that appellant's actof firing 11 shots into a crowded bar indicated a concurrent intent to harm all the victims; and (2) shift the burden of proof by suggesting that the defense maintained the same power as the State to issue a summons for a police witness.

The State contends that the court "properly exercised its discretion in regulating the State's closing arguments." It asserts that counsel failed to preserve any objection to the first comment, which does not warrant plain error review. It argues that the second comment did not shift the burden of proof.

This Court has described the principles governing our review of comments made during closing arguments as follows:

It is well established that "'attorneys are afforded great leeway in presenting closing arguments to the jury.'" Pickett v. State, 222 Md. App. 322, 329, 112 A.3d 1078 (2015) (quoting Degren v. State, 352 Md. 400, 429, 722 A.2d 887 (1999). Accord Sivells v. State, 196 Md. App. 254, 270, 9 A.3d 123 (2010), cert. dis'd as improv. granted, 421 Md. 659, 28 A.3d 704 (2011). "'As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range.'" Donati v. State, 215 Md. App. 686, 730, 84 A.3d 156 (quoting Wilhelm v. State, 272 Md. 404, 412, 326 A.2d 707 (1974)), cert. denied, 438 Md. 143, 91 A.3d 614 (2014).

State v. Newton, 230 Md. App. 241, 254-55 (2016), aff'd, 455 Md. 341 (2017), cert. denied, 138 S.Ct. 665 (2018). Moreover, even where there is an improper comment, reversal is required "only 'where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused.'" Id. (quoting Pickett, 222 Md. App. at 330).

"We review a trial court's allowance of allegedly improper remarks by a prosecutor under an abuse of discretion standard." Pietruszewski v. State, 245 Md. App. 292, 318,cert. denied, 471 Md. 127 (2020). With that background in mind, we review the specific contention raised here.

I.

In his opening statement, the prosecutor advised the jury, without comment from the defense, that

the fact that [appellant] then raised the gun will show . . . his intent to commit murder. That intent is what is called concurrent across the entire zone of danger that is created by Mr. Bowers firing 11 shots into a crowded bar. . . . [T]hat intent to try and kill Mr. Thomas extends to everyone within that cone of danger that is created by firing bullets into a bar and that is why that intent to kill extends to the three other victims.

Defense counsel did not object to that statement.

Later, in discussing the requested jury instructions, the prosecutor asked the trial court to include an instruction on concurrent intent. Because the prosecutor had provided the court only with research on the topic, rather than with a draft instruction, and the court stated that it would take a "solid 45 minutes" to draft its own concurrent intent instruction, the court declined to give such an instruction. The court stated, however, that the prosecutor could argue concurrent intent to the jury during closing argument. Defense counsel did not make any objection.

In its instructions, the trial court advised the jury that the State was required to prove, with respect to the charge of attempted first-degree murder, that appellant "willfully and with premeditation and deliberation intended to kill Cornell Thomas, Roderick Alston, Am[ani] Oliver or Chante Johnson," and with respect to the charge of attempted second-degree murder, that appellant "actually intended to kill, Cornell Thomas, Roderick Alston, Am[ani] Oliver or Chante Johnson."

During his initial closing argument, the prosecutor stated:

And Cornell Thomas testified that when the Defendant raised the gun up, he was looking at Cornell Thomas. His intent was formed the second he ran down Bristol and maintained all the way, the 40 seconds later that he ran back up to Hanover Street side and fired at Cornell Thomas. So that intent to kill Cornell Thomas and the way that the Defendant acted firing 11 indiscriminate shots into a crowded bar, that intent to kill that one person is concurrent to all the people within that cone of danger that the Defendant made by firing all of those shots.

If I'm just shooting at this one, if someone is just shooting at this one person and fires 11 shots, spraying them, anyone, everyone in this zone, that intent is concurrent to all of them. And that's important because Roderick Alston, Am[ani] Oliver, Chante Johnson, right, you saw that none of them, well Mr. Alston and Ms. Oliver, right, [de]spite the best efforts of the detective, not here, but it doesn't matter because you have photos of Mr. Alston's injuries. You have medical records from Ms. Oliver showing that they were both shot.

So therefore, that intent is concurrent on all.

Defense counsel did not object to these comments, either contemporaneously or at the end of the prosecutor's initial closing argument.

Appellant contends that the court erred in allowing these comments because counsel is not permitted to "argue the law," and the comments here constituted "a legal advisement never mentioned by the trial court during jury instructions." He asserts that, as a result, the court "allowed for the jury to apply law different [from] that given by the judge."

The State notes that defense counsel made no objection to the comments. It argues that this Court should decline to exercise plain error review of this contention.

Ordinarily, Maryland appellate courts will not decide an issue "unless it plainly appears by the record to have been raised in or decided by the trial court." Md. Rule 8-131(a). The purpose of requiring counsel to raise an objection below is "to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings[.]" Robinson v. State, 404 Md. 208, 216 (2008) (quoting Fitzgerald v. State, 384 Md. 484, 505 (2004)). "[T]o preserve an objection to an...