Brown v. State
| Decision Date | 02 October 2008 |
| Docket Number | No. 945, Sept. Term, 2006.,945, Sept. Term, 2006. |
| Citation | 957 A.2d 654,182 Md. App. 138 |
| Parties | Rodney Edward BROWN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Philip T. Inglima, Jasmine H. Yoon (Crowell & Moring, LLP on the brief), Washington, D.C., for appellant.
James Williams (Douglas F. Gansler, Attorney General on the brief), Baltimore, for appellee.
Argued before DAVIS, HOLLANDER and EYLER, JAMES R., JJ.
On the night of June 18, 2005, Jermaine Hardy and Tory Burnett were in the home of Burnett's mother when one or more assailants burst into the home and began shooting at them. Burnett was killed, but Hardy survived. Following a trial in April of 2006, a jury in the Circuit Court for Baltimore City convicted Rodney Edward Brown, appellant, of first-degree and second-degree assault on Hardy. See Md. Code (2002, 2007 Supp.), §§ 3-202 & 3-203 of the Criminal Law Article ("C.L."). In addition, the jury convicted appellant of use of a handgun in the commission of a felony or crime of violence, see C.L. § 4-204, as well as wearing, carrying, or transporting a handgun. See C.L. § 4-203. However, Brown was acquitted of the murder of Burnett and the attempted murder of Hardy. The court sentenced appellant to a total term of imprisonment of 45 years.1
On appeal, Brown poses three questions, which we quote:
I. Was the evidence sufficient to prove that the weapon used in the shooting of Mr. Hardy was a "handgun," as that term is defined in § 4-201 of the Criminal Law Article?
II. Was the evidence sufficient to prove that Mr. Hardy suffered serious physical injury, as that term is defined in § 3-201 of the Criminal Law Article?
III. Was the evidence sufficient to support the Appellant's conviction given the controverted and recanted identification testimony?
For the reasons that follow, we shall reverse the handgun convictions and affirm the assault convictions.
On the night of June 18, 2005, Tory Burnett was killed in a hail of gunfire. His friend, Jermaine Hardy, was injured.
Dr. Karin Sands, a fellow in forensic pathology with the Office of the Chief Medical Examiner, testified that Burnett was shot three times, one of which "injured abdominal organs like the pancreas and the intestines as well as blood vessels in the pelvis." She explained that only one bullet was recovered from the victim's body; it was found in the abdomen. Burnett's other two injuries — to the knee and to the forearm — were "through and through," meaning that the bullets "exited" the body. Dr. Sands opined that Burnett died as a result of multiple gunshot wounds, and the manner of death was homicide.2
Hardy testified that, as he and Burnett were sitting in the kitchen of Burnett's home on the evening of June 18, 2005, the back door "came flying open" and "a dark skinned guy he was like the first one, he came in or whatever and he said you all know what it is, and I turn[ed] to run. ..."3 Hardy recalled that "[s]ome shots started ringing off ... maybe two or more," an d he retreated to the basement of the house, where he had previously seen a gun. Hardy stated: 4
According to Hardy, one of the assailants pursued him into the basement. Hardy said: "As he started coming down the steps I started shooting." Hardy claimed that he fired "[p]robably about four or five [shots], something like that" at his assailant. But, when asked whether he actually shot the intruder during the altercation, Hardy responded: Hardy indicated that the assailant did not continue down the stairs; "[t]hey shot back [at Hardy] a couple of times and they ran back up." Hardy never saw the face of his assailant, explaining that he saw "[j]ust his legs."
After the intruder ascended the stairs, Hardy said he heard a voice say "come on, let's go." Hardy returned upstairs and saw the back of a "tall, slim" man leaving through the rear door. He also found Burnett lying mortally wounded on the dining room floor. Hardy secured the back door and then exited from the front door to retrieve the truck he was using. While he attempted to help Burnett into the truck, Burnett collapsed. As Hardy attempted to give Burnett mouth-to-mouth resuscitation, he heard noises at the back door. Hardy recalled: Hardy ran a few blocks to North Avenue, where he flagged down a hack and had the driver drop him off at a vacant house in the Waverly neighborhood, where he had previously lived; he stayed there until dawn. Hardy did not testify as to whether he was injured during the attack.
Through his attorney, Hardy contacted the State's Attorney's office four days after the incident. Hardy testified that he had been afraid to come forward for fear that he might be criminally charged for his own use of a firearm and his flight from the scene. Accompanied by his attorney, Hardy met with police and gave an oral statement, which was not recorded. Nor did he sign a statement. Several days later, on June 29, 2005, Hardy met with Baltimore City Police Detective Robert Dohony, without counsel. The meeting began with an unrecorded "pre-interview," which was followed by a tape-recorded interview. During the "pre-interview," Dohony showed Hardy a photographic array consisting of six photographs, including one of appellant. The following exchange is relevant:
Hardy testified that he then Hardy testified that he signed his name above the photograph of appellant.
According to Hardy, during the taped interview that followed, the police asked him "if they pointed out anybody in the lineup." He explained: Over defense objection, the signed photo array was admitted into evidence.6
At trial, however, Hardy repudiated his pre-trial identification of appellant. The following colloquy is relevant:
Detective Dohony acknowledged that Hardy's photo line-up identification had been made prior to the taped interview. He testified that the...
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