Brown v. State, 945, Sept. Term, 2006.

CourtCourt of Special Appeals of Maryland
Citation957 A.2d 654,182 Md. App. 138
Docket NumberNo. 945, Sept. Term, 2006.,945, Sept. Term, 2006.
PartiesRodney Edward BROWN v. STATE of Maryland.
Decision Date02 October 2008

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.

HOLLANDER, J.

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.

I. FACTUAL AND PROCEDURAL SUMMARY

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: "I ran down there. At first I was going to hide and then I remembered there was a gun in the basement so I looked for it and I found the gun under the cushion and just waited right there by the side of the steps."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: "I don't know. I can't really say." 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: "[W]hen I heard that noise I just—my instinct was to run. So I took and ran towards the front door and some more gunshots rang off and I heard some glass break over top of my head." 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:

[DEFENSE COUNSEL]: Now during this meeting you discussed the shooting with the detective, didn't you?

[HARDY]: Right.

[DEFENSE COUNSEL]: And you were telling him what you saw, what occurred?

[HARDY]: Right.

* * *

[DEFENSE COUNSEL]: Okay, and he showed you a photo array, didn't he?

[HARDY]: Right.

[DEFENSE COUNSEL]: And did he ask you any questions regarding that photo array?

* * *

[HARDY]: Yeah, he just asked me if any of them looked familiar to me or whatever.

[DEFENSE COUNSEL]: Did there come a time that the detective asked you to pick someone out?

[HARDY]: Yes.

[DEFENSE COUNSEL]: And how did he go about doing that?

* * *

[HARDY]: Okay, while I was there he asked me if anybody — did any of them look familiar. I told him no except for this one guy that was my friend.[5] So it was a couple of moments of silence and he said what about this guy right here. He said not even this guy right here. He said with the description you gave me—

[DEFENSE COUNSEL]: Which one was he pointing to?

[HARDY]: To what's his name Rodney, yes.

* * *

[DEFENSE COUNSEL]: And that's a picture of Mr. Brown?

[HARDY]: Yes.

[DEFENSE COUNSEL]: And show us how he was telling that, what was he doing?

[HARDY]: He was sitting beside me and I was looking at the pictures just like this. I told him I recognized the one guy. I said yeah none of these don't look like they could be the guy. So he said what about this guy right here. He said you sure because he's been shot. Then that's how I found out that Rodney got shot.

[DEFENSE COUNSEL]: Did you ever see Rodney before?

[HARDY]: No.

[DEFENSE COUNSEL]: Hear his name?

[HARDY]: No. ... I never saw him before in my life.

Hardy testified that he then "rode with it. I said he do look kind of familiar with the description that I gave you. [The detective] told me it was a DNA case so I knew this guy wasn't going to get convicted." 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: "I said no because I wasn't going to sit there in their house and tell the Homicide detectives that yes you made me point him out right in their face. I was scared to do that." 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:

[DEFENSE COUNSEL]: [D]id there come a time you spoke to a member of my office?

* * *

[HARDY]: Yes.

[DEFENSE COUNSEL]: Why did you make that call?

[HARDY]: Because I knew that [appellant] didn't do it so I wanted to let you know—I wanted to try to get in touch with his attorneys or whoever was representing him to let them know that I'm ready to come forward and let them know that he didn't do it, that he didn't do it.

[DEFENSE COUNSEL]: Did anyone from my office come to you first to tell you to call us?

[HARDY]: No.

[DEFENSE COUNSEL]: You did that all by yourself?

[HARDY]: Did that by myself.

[DEFENSE COUNSEL]: Now, in the taped interview that you gave to the detective ... do you recall using the words it looks like?

[HARDY]: Yeah, I could have used it, yeah.

[DEFENSE COUNSEL]: Do you remember using words most likely?

[HARDY]: I don't remember using most likely.

[DEFENSE COUNSEL]: Did you ever, ever say that's him?

[HARDY]: No.

[DEFENSE COUNSEL]: That's the man who shot me?

[HARDY]: No.

[DEFENSE COUNSEL]: That's the man who killed my friend?

[HARDY]: No.

[DEFENSE COUNSEL]: Here today standing here looking at that man, is that the man you saw—

[HARDY]: No.

[DEFENSE COUNSEL]: —in the house?

[HARDY]: That's not him.

[DEFENSE COUNSEL]: Is that the man who shot your friend?

[HARDY]: That's not him.

[DEFENSE COUNSEL]: Is that the man who shot you?

[HARDY]: That's not him.

[DEFENSE COUNSEL]: Has anyone threatened you to say that?

[HARDY]: No.

[DEFENSE COUNSEL]: Has anyone contacted you to say that?

[HARDY]: No.

[DEFENSE COUNSEL]: Has anyone paid you to say that?

[HARDY]: No, I wish.

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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