Brown v. State, 617

• Decision Date: 08 December 2003
• Docket Number: No. 617,617
• Parties: Keith Alexander BROWN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

837 A.2d 956
153 Md. App. 544

Keith Alexander BROWN
v.
STATE of Maryland

No. 617, Sept. Term, 2002.

Court of Special Appeals of Maryland.

December 8, 2003.

837 A.2d 960

Laurel A. Albin (Byron L. Warnken, Law Offices of Bonnie L. Warnken, LLC, on the brief), Baltimore, for appellant

Diane E. Keller (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before SALMON, JAMES R. EYLER, and KRAUSER, JJ.

837 A.2d 957

837 A.2d 958

837 A.2d 959

ON MOTION FOR RECONSIDERATION

SALMON, Judge.

In Brown v. State, 359 Md. 180, 753 A.2d 84 (2000), the convictions of appellant, Keith Alexander Brown, for first degree murder and use of a handgun in the commission of a felony were vacated and the case was remanded for a new trial. The second trial lasted sixteen days. The State called thirty witnesses, and the defense called seven. After the re-trial, appellant was convicted of second degree murder and use of a handgun in the commission of a felony.

With exceptions that will be discussed infra, the evidence introduced at the second trial was similar to that at the first. The Court of Appeals, in Brown v. State, accurately summarized that evidence as follows:

Makea Stewart was found dead around 3:30 a.m. on September 10, 1995 in an alleyway behind 3326 Gwynns Falls Parkway, in Baltimore City. She had been shot eight times with a .380 caliber handgun that was owned by petitioner and was later recovered from his car. Petitioner's fingerprints were found on the magazine of the weapon. A witness, Jerry Manns, reported hearing gunshots from his kitchen window at approximately the time of Ms. Stewart's reported death. From his window, he saw an African-American male in his twenties leave the alley and drive off in a small two-door car with a malfunctioning muffler. He saw the same man return a short time later with a gun in his hand. Manns heard a single gunshot and then saw the man get back into his car and leave. It was later established that petitioner, an African-American male, drove a two-door Mazda with a faulty muffler. Near Ms. Stewart's body Detective Barlow discovered her pager, which showed that several calls had been made to the pager from a cellular phone later found in petitioner's possession.

Ms. Stewart's mother, Jill Sullivan, informed Detective Barlow that Ms. Stewart had been having an affair with a married man named Keith, that her daughter told her two days before the murder that she (Ms. Stewart) was pregnant with Keith's baby and that she was going to confront Keith about the pregnancy. A friend of Ms. Stewart, Cassandra Green, testified at trial that she overheard Ms. Stewart telling petitioner that she might be pregnant and that petitioner told the victim that he knew she was pregnant and that she had a decision to make. Genetic tests confirmed that, at the time of her death, Ms. Stewart was pregnant with petitioner's child.

The State's theory was that petitioner, from the very inception of his marriage

837 A.2d 961

to Ms. Brown, was romantically involved with Ms. Stewart, that Ms. Stewart became pregnant as a result of the affair, that petitioner insisted that she abort the pregnancy, that she refused, and that he killed her because he feared that the pregnancy would wreck his marriage. Petitioner made clear, both at the outset and throughout the trial, that his defense was based on the proposition that his wife, who was aware of his affair with the victim and had threatened both him and the victim in the past, killed the victim out of jealousy. He asserted that position to the court in arguing a pre-trial motion, he asserted it to the jury in his opening statement, he implied it in his own testimony and in the cross-examination of some of the State's witnesses, and he again asserted it more directly in closing argument

* * *

Ms. Brown [appellant's wife] then testified that on September 9, 1995—the night of the murder—petitioner returned home at around 4:00 a.m., that she asked him where he had been and that he refused to tell her. Ms. Brown then got into an argument with petitioner about his talking with the victim. In response to the question, "What happened then," Ms. Brown said, apparently to everyone's surprise, "He told me he killed her and I didn't believe him."

* * *

Ms. Brown recounted two additional conversations. Later that evening, they learned from television news that two bodies had been found, "and I asked if one of them was her and he said yes...."

Id. at 183-86, 753 A.2d 84.

The Court of Appeals reversed appellant's convictions in Brown, supra, because the trial court erred in admitting into evidence appellant's wife's testimony that he had confessed to her that he had killed the victim. The Court of Appeals ruled that appellant's (alleged) communication to his wife was protected, and thus inadmissible, pursuant to the privilege set forth in section 9-105 of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2002 Repl.Vol.). The mandate of the Court of Appeals was issued on July 10, 2000.

The three major differences between the evidence introduced in the first and second trials were: (1) in the second trial, appellant's wife did not testify concerning statements about the murder made to her by appellant; (2) appellant's videotape testimony from the first trial was introduced by the State at the second trial, but appellant did not take the stand in his own defense during that trial; and (3) the bullets and the bullet casings found at the scene and the gun owned by appellant were not available to be introduced into evidence at the second trial. Despite those differences, appellant's defense in the second trial was the same as the one he unsuccessfully advanced in the first trial, i.e., that his wife used his gun to kill Makea Stewart.

In the first trial, as in the second, the State's evidence against appellant was based on circumstantial evidence, namely: (1) immediately after the victim was shot, an African-American male ran from the scene and drove away in a two-door Mazda with a faulty muffler; (2) appellant owned a car that sounded and looked like the one seen leaving the murder scene; (3) several days after the murder, the police seized a gun owned by appellant from appellant's car; (4) two ballistics experts testified that the gun found in appellant's car fired the shots that killed the victim; (5) blood and tissue of the victim, together with appellant's fingerprint, were found on appellant's

837 A.2d 962

gun; (6) appellant had a motive to kill the victim; and (7) the victim's pager, which was found near her body shortly after the murder, showed that a call had been made to her pager about one-half hour before the 3:30 a.m. murder, from a cellular phone later found in appellant's possession.

A major problem in retrying appellant was the fact that some of the physical evidence used to convict in the first trial was inadvertently destroyed by the police after the first trial. The items that were destroyed and the dates of their destruction were: (1) the bullets recovered from the victim's body—destroyed in February 2000; (2) the shell casings found next to the victim's body—destroyed between April 19 and June 27, 2000; and (3) the murder weapon, which was owned by appellant—destroyed on October 13, 2000. The destruction of these items was due to a series of mistakes by the Baltimore City Police Department.

In this appeal, appellant raises five questions, viz:

1. Was appellant's right to a speedy trial violated by a nineteen-month delay between the date of the Court of Appeals mandate and the date that the second trial commenced?

2. Did the trial judge commit reversible error by denying appellant's motions for a mistrial, which were based on the fact that the jury was repeatedly reminded by various witnesses that defendant had previously stood trial?

3. Did the trial court err in failing to suppress evidence uncovered as a result of a validly issued search warrant that was executed by police officers in a venue where they had no jurisdiction?

4. Did the trial court commit reversible error in allowing the prosecutor to play a videotape of appellant's testimony from the first trial when appellant's testimony in that prior trial was "compelled" by the erroneous admission into evidence in the first trial of testimony that violated appellant's marital privilege?

5. Did the trial judge improperly enhance the sentence appellant received on remand for the handgun conviction?

ISSUE 1: DENIAL OF MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL

As mentioned earlier, the mandate of the Court of Appeals in Brown v. State was filed on July 10, 2000. Appellant's second trial commenced almost exactly nineteen months later on February 11, 2002. Appellant contends that a delay of this magnitude denied him his right to a speedy trial. In deciding whether appellant's right to a speedy trial was unconstitutionally abridged, we consider only the period between the date the mandate was issued and the date that trial commenced. See Icgoren v. State, 103 Md.App. 407, 420, 653 A.2d 972 (1995)(When deciding a speedy trial issue, courts are generally "only concerned with the period between the receipt of an appellate mandate, if the prior conviction is reversed, and the subsequent retrial.").

The right of an accused to a speedy trial is guaranteed by Article 21 of the Maryland Declaration of Rights, as well as by the Sixth Amendment to the Constitution of the United States.¹ Maryland

837 A.2d 963

Courts usually construe Article 21 in accord with the Supreme Court's construction of the Sixth Amendment's speedy-trial right, inasmuch as the Supreme Court's interpretation is "very persuasive, although not necessarily controlling." Stewart v. State, 282 Md. 557, 570, 386 A.2d 1206 (1978).

In 1972, the Supreme Court established a four-factor test to aid in determining whether a defendant's constitutional right to a speedy trial was violated. ...