Caldwell v. State

Decision Date04 October 2005
Docket NumberNo. 2439,2439
Citation164 Md. App. 612,884 A.2d 199
PartiesCorey Ricardo CALDWELL v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Amy E. Brennan (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Sarah Page Pritzlaff (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Panel: HOLLANDER, DEBORAH S. EYLER, and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

DEBORAH S. EYLER, J.

In the Circuit Court for Baltimore City, Corey Caldwell, the appellant, was charged in two indictments with crimes arising from the shooting of Darian Nelson and the attempted shooting of Davon Jackson, in a single incident. The charges were tried together to a jury.

In the Nelson case, the jury returned verdicts of not guilty of attempted first-degree murder and guilty of first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, carrying a handgun, and discharging a handgun in Baltimore City. It did not return a verdict on the charge of attempted second-degree murder.

In the Jackson case, the jury returned a verdict of guilty of first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, carrying a handgun, and discharging a handgun in Baltimore City. It did not return a verdict on the attempted first-degree murder and attempted second-degree murder charges.

The court sua sponte declared a mistrial on the three counts on which no verdicts were returned. The reasons were that the courthouse was closing in less than an hour because Hurricane Isabel was approaching Baltimore and the subways had been shut down; the courthouse likely would be closed the following day, due to the storm; one of the jurors could not return to deliberate the next business day thereafter, without losing a prepaid vacation the court and counsel had assured her, during voir dire, she would not lose; and the defense was not willing to proceed with an 11-member jury.

After denying a new trial motion, the court vacated one conviction for carrying a handgun and one conviction for discharging a firearm in Baltimore City, and merged the remaining convictions on those charges. It then imposed sentences in both cases.1

The appellant noted a timely appeal. We have rephrased and reordered his questions as follows:

I. Did the trial court err by taking a partial verdict on the ten counts on which guilty verdicts were returned?
II. Did the trial court err by declaring a mistrial on three counts?
III. Must the docket entries be corrected to properly reflect that the appellant was acquitted of attempted first-degree murder of Darian Nelson?
IV. Did the trial court err by permitting the State to impeach the appellant with statements he allegedly made to a person who was not called as a witness?
V. Did the sentencing court err by not merging the appellant's sentences for reckless endangerment into his sentences for first-degree assault?

We answer Question I in the affirmative and therefore shall reverse the ten judgments of conviction and remand the counts on which they are based to the circuit court, for further proceedings. Question II is not properly before us, because there is no final judgment on the three counts on which a mistrial was declared. We answer Question III in the affirmative, and direct the circuit court to correct the docket entries to reflect that the verdict on the count of attempted first-degree murder in the Nelson case was not guilty. Because of our disposition of Question I, and because it is highly speculative whether the issues will resurface on retrial, we shall not address Questions IV and V.

FACTS AND PROCEEDINGS

The key events in this case took place around 8:00 p.m. on September 3, 2002, on Berger Avenue in Baltimore City. Darian Nelson, then ten years old, was standing in front of his family's house, at 4348 Berger Avenue, with his mother and two brothers. He heard a sound like firecrackers and felt a burning pain in his side. He exclaimed, "firecrackers hit me." At the same time, a man later identified as Davon Jackson ran past him on the street. Jackson continued around the corner, into the Nelson family's backyard. A few minutes later, Jackson emerged and apologized to Mrs. Nelson, saying, "they were trying to shoot at me."

Emergency medical workers and police arrived on the scene. Nelson was found to have suffered a gunshot wound and was taken to the hospital. The police arrested Jackson and took him to the station house. Jackson told them the shooter was a man he knew as "Ron," who was angry with him because he thought Jackson was having an affair with Muriel Brewington, "Ron's" stepsister. Brewington is the mother of "Ron's" best friend's children.

Jackson showed the police a house near the Nelsons' house where "Ron's" family was living. In a search of the house based on a warrant, the police found information that led them to think the appellant and "Ron" were the same person. The police prepared a photographic array that included the appellant's picture and showed it to Jackson. Jackson selected the appellant's photograph as depicting "Ron," the shooter.

As stated previously, the appellant was charged in two indictments with crimes arising out of the shooting of Nelson and the attempted shooting of Jackson. The cases were tried together before a jury beginning on September 11, 2003.

The State called as witnesses Nelson, his two brothers, and his mother. They testified about the events surrounding the shooting, as we have recounted them. A neighbor, Michelle Coward, testified that she saw the appellant chase Jackson down Berger Avenue and fire a gun at him. She gave the police that information on the day of the shooting, but told them she did not want to be involved. Nine months later, on June 8, 2003, the police showed Coward a photographic array. She selected the appellant's picture from the array. She testified that she was certain that the appellant was the shooter.

The State also called Brewington as a witness. She testified that, in a telephone conversation the morning after the shooting, the appellant told her that he and Jackson had been "tussling" over a gun.

When the State called Jackson to testify, he recanted his statement to the police. He testified that he and the appellant were victims of an attempted robbery by an unknown third person. He said he had blamed the shooting on the appellant because he thought the appellant had "set up" the robbery. Ballistics evidence showed that two cartridge casings recovered at the scene were fired by the same gun.

The appellant testified in his own defense. He said he had not known Jackson well but had been with him on the evening in question, before the shooting. They were approached by a third man, whom the appellant did not know, who tried to rob them. They ran in opposite directions. As he was running, the appellant heard gunshots. He did not have a gun and did not fire a gun. He never told Brewington that he and Jackson had tussled over a gun. He thought Jackson had "set [him] up" for the robbery.

Another neighbor of the Nelsons, Darrell Brown, testified for the defense. He said that, on the night in question, he saw a man running up Berger Avenue with a gun. The man was not the appellant. Brown did not know the appellant.

We shall include additional facts as necessary to our discussion of the issues.

DISCUSSION
I.

Did the trial court err in taking partial verdicts?

(a)

The jury was selected and sworn on September 11, 2003. The evidence phase of the trial lasted three days: September 12, 15, and 16. The case went to the jury for deliberation at about noon on September 17. The jurors deliberated until 5:35 p.m., at which time they sent a note saying they "ha[d] not decide [sic] a verdict yet. Please let us know when it's time to leave." The court released the jurors for the evening.

The jurors returned at 9:30 a.m. the next day, September 18, and resumed deliberation.

In the days before September 18, Hurricane Isabel was moving north, on a path to strike the mid-Atlantic coastline. Forecasts were calling for the hurricane to be severe. In anticipation that it would be, and based on tracking information from the National Weather Service, the Governor of Maryland issued an Executive Order declaring a state of emergency as of 11 p.m. on September 16. See Md. Regs. Code tit. 01, § 01.2003.30. The storm was slow-moving, however, and by the morning of September 18, it had not yet made landfall. See National Weather Service, "Service Assessment, Hurricane Isabel, September 18-19, 2003," available at http://www.weather.gov/os/assessments/pd fs/isabel.

Around noon, as the jury was deliberating, the trial judge was alerted that the Administrative Judge had directed that the courthouse would close at 1:00 p.m., due to the impending hurricane. Counsel and the appellant were convened and the jury was brought into the courtroom. The trial judge announced that the courthouse was closing and was unlikely to be open the next day (Friday September 19), given the weather forecast. He asked the jurors to return Monday, September 22, to resume deliberating.2

At that point, Juror Number Two motioned that there was a problem, and was brought to the bench. Both lawyers reminded the judge that during voir dire Juror Number Two had made it known that she was leaving on Saturday, September 20, for a prepaid vacation to New Orleans, and had voiced concern about whether sitting on the jury would cause her to lose her vacation. Because the court and counsel all thought the trial would be over by September 19, at the latest, they had assured Juror Number Two that sitting on the jury would not interfere with her travel plans. Juror Number Two could not return to deliberate on Monday, September 22, without losing her prepaid vacation.

Juror Number Two was reseated and the judge and counsel conferred at...

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