Burris v. State, 1970

• Decision Date: 28 June 2012
• Docket Number: Sept. Term, 2010.,No. 1970,1970
• Citation: 47 A.3d 635,206 Md.App. 89
• Parties: Shelton BURRIS a/k/a Tyrone Burris v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

206 Md.App. 89

47 A.3d 635

Shelton BURRIS a/k/a Tyrone Burris

v.STATE of Maryland.

No. 1970, Sept. Term, 2010.

Court of Special Appeals of Maryland.

June 28, 2012.

Allison M. Sayers (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Cathleen C. Brockmeyer (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: KEHOE, WATTS and JAMES P. SALMON, (Retired, Specially Assigned), JJ.

WATTS, J.

Following a trial held from July 20, 2010, through July 23, 2010, a jury sitting in the Circuit Court for Baltimore City convicted Shelton Burris, also known as Tyrone Burris, appellant, of one count of first-degree murder and one count of use of a handgun in the commission of a crime of violence.¹SeeMd.Code Ann., Crim. Law Art. (“C.L.”) § 2–201 (first-degree murder); C.L. § 4–204 (use of a handgun in the commission of a crime of violence). On September 29, 2010, the circuit court sentenced appellant to life imprisonment for first-degree murder and nineteen years' imprisonment consecutive for use of a handgun in the commission of a crime of violence, the first five years to be served without parole. Appellant noted an appeal raising three issues, which we quote and re-order as follows:

I. Whether the [circuit] court erred by admitting extensive gang-related evidence, including expert testimony, that [appellant] was a member of the Black G[uer]rilla Family gang? ²

II. Whether the [circuit] court erred by asking the venire a “CSI” type voir dire question?

III. Whether the [circuit] court erred by admitting evidence that [appellant attempted to call] his friend, Austin Lockwood, an individual who would later testify as a State's witness at [appellant's] trial, from jail?

For the reasons set forth below, we answer each question in the negative. As such, we shall affirm the judgments of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On February 21, 2009, at approximately 1:00 a.m., Officer Bernard Cox of the Baltimore City Police Department received a call to report to the 2500 block of West Baltimore Street in Baltimore City for a shooting. Upon arrival, Officer Cox found the body of Hubert Dickerson, Jr. and a large number of shell casings in the area. Officer Cox notified the homicide division, and Detectives Robert Dohony and Julian Min assumed responsibility for the investigation. The medical examiner determined that Dickerson died as a consequence of multiple gunshot wounds. On April 17, 2009, appellant was indicted in connection with the shooting.

Motion Concerning Gang–Related Testimony

On July 20, 2010, prior to the start of trial, the State moved to introduce evidence that the shooting was related to appellant's membership in the Black Guerrilla Family (“BGF”) gang. The State advised that it intended to introduce fact evidence to establish that the motive for the offense was related to appellant's membership in the BGF, and to call Sergeant Dennis Workley of the Baltimore City Police Department as an expert in the area of gangs to testify about the workings of the BGF and appellant's tattoos, and to opine that appellant is a BGF member. According to the State, appellant's gang affiliation was directly connected to the issues of identity and motive and, therefore, admissible under Maryland Rule 5–404(b). In addition to the above, the State advised that, “assuming that the[ ] witnesses recant[ed] and their statements c[a]me in, [it] intend[ed] to put on [Sergeant] Workley who has previously [been] qualified as a gang expert to testify as to what BGF is, [and] what they do.”

Appellant's counsel contended that “whether or not [appellant] is in the [BGF] or is not in the [BGF] ha[d] absolutely nothing to do with this case.” Appellant's counsel argued that such evidence was not admissible as proof of either identity or motive, and that “[a]ll the State wants to do is poison the well because of the bad publicity everybody gets from the [BGF].” Appellant's counsel concluded: “I think the prejudice outweighs the probative value and I don't really think that the [BGF] had anything to do with this shooting.”

After hearing argument from counsel, the circuit court determined that the gang-related evidence, including fact and expert testimony, was admissible to explain “... why [appellant] is the person who did the shooting[.]” The circuit court ruled orally from the bench as follows:

All right. Based upon my understanding at this time and in what was presented to me before, I am prepared to allow this information to come in. I believe that it is relevant in that the theory of the State's case as all parties seem to consider that the murder was as a result of a debt that was owed, but why [appellant] is the person who did the shooting because a debt was owed to Bam ³ involves a question of their relationship. That their relationship that the State is prepared to prove involves the [BGF]—I believe makes that relevant evidence.

Also, the fact that in Mr. Falcon's ⁴ recorded statement, he claims to have been in an encounter between Bam whose name we will bring out later and [appellant] in which [appellant] is praised for doing the shooting, he came in saying ... That's my boy. Straight G[uer]rilla. I don't believe that's an insult. I believe that is praise and based upon that, I think that it is part and parcel of communications between possible co-conspirators here, but there is a way to avoid the prejudice involved. We've taken step number one already. We voir dired the jury to make sure that the mention of gangs is not something that would affect their ability to be fair and impartial and when the time comes for me to instruct the jury at the end of the trial, I'll want proposed instructions from each one of you about how I should address this and why the information was allowed so as to minimize the prejudice if any that is attended to.

After the circuit court's ruling, the following exchange occurred between appellant's counsel and the court when appellant's counsel sought clarification as to making objections during trial:

[APPELLANT'S COUNSEL]: Your Honor, I was wondering since any mention of the [BGF] obviously, you know, I'm going to be objecting to that and I've heard you ma[k]e your ruling.... [D]o I have to get up and object every single time the word [BGF] comes in or can I have a continuing objection to anything that has to do with the [BGF] because I don't think it should be mentioned in this trial. If you want me to get up and make an objection every time, I will, but I just want to make sure the record—

THE COURT: I understand exactly what you're saying, [appellant's counsel,] and this is a complex area with the continuing objection because if you—if I don't allow the continuing objection, you will underline the fact that you consider it to be prejudicial every time it's mentioned and I will allow you a continuing objection except as to matters that we have not discussed here.

[APPELLANT'S COUNSEL]: Yes, sir.

THE COURT: All right. If it's something beyond what we have talked about, about these witnesses who are on tape and whose commitment to testifying is questioned, to the extent that it's mentioned by them, with them, to them and from them, I'll allow your continuing objection. To the extent that it comes in beyond that from someone, I'll want you to object. To the extent that the State is bringing in people to explain what this reference means, your objection before they testify will be sufficient for that. All right.

[APPELLANT'S COUNSEL]: Okay. So, just, I think I understand what you're saying. Are you saying like if they try to bring experts in, I should object again.

THE COURT: You'll object before the expert testifies.

[APPELLANT'S COUNSEL]: Yes, Your Honor.

THE COURT: And the experts won't be testifying until it's relevant for them to do so. So, at that time, I can reconsider the decision that I've made here, but you object. That gives me a chance to reconsider it. As to these statements that we're going over and the opening statement from the State, you don't have to object to that because I am specifically now ruling that that is going to be admissible evidence. All right.

[APPELLANT'S COUNSEL]: Yes, sir.

Trial

At trial, Dominick Falcon testified as a witness for the State. Falcon's testimony was inconsistent with a statement that he had made to detectives, incriminating appellant, following the shooting. As such, during Falcon's testimony, the State introduced as substantive evidence an audio recording of an interview Falcon had with detectives on March 4, 2009. In the interview, Falcon stated that he heard appellant say, “I just killed a boy. That's how you're supposed to do it[.]” Falcon told law enforcement officers that, after the shooting, he heard Bam praise appellant, saying “ that's my boy, straight G[uer]rilla.” Falcon explained that “Guerrilla” meant “being in a gang. BGF, Black G[uer]rilla Family.” Falcon also stated that appellant's nickname is “69” and that Bam's nickname is “Bootsy and Bam for real.” The following exchange occurred between Falcon and Detective Min:

DETECTIVE MIN: Okay, Bootsy or Bam and that's the nickname on the street and they're a member of BGF.

MR. FALCON: Yes.

DETECTIVE MIN: Okay. What do those letters stand for?

MR. FALCON: Black G[uer]rilla Family.

In the interview, Falcon stated that, during the conversation with appellant, appellant stated “that he actually shot the boy, shot him on Baltimore and Shipley[.]” Falcon identified appellant from a photographic array and wrote on the back of the array, “We had a conversation ... He [appellant] was bragging about killing a boy on Baltimore Street. He was saying that's how you were supposed to do the job, not a half job. I had this conversation with 69.” Falcon also identified Bam from a photographic array and wrote on the back of the array, “[h]e was there too and they were talking about that's how you're supposed to do the damn thing. Bam told 69 to kill...