Cook v. State

• Docket Number: 128-2020
• Decision Date: 03 February 2022
• Parties: WINSTON ALFONSO COOK, JR. v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

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WINSTON ALFONSO COOK, JR. v. STATE OF MARYLAND

No. 128-2020

Court of Special Appeals of Maryland

February 3, 2022

Circuit Court for Howard County Case No. C-13-CR-19-000011

Fader C.J., Kehoe, Leahy, JJ.

OPINION ^[*]

Leahy J Winston Alfonso Cook, Jr., was convicted in the Circuit Court for Howard County of attempted second-degree murder and other crimes related to the kidnapping and non-fatal shooting of Shawn Green on February 1, 2018.^[1] Mr. Cook noted a timely appeal and presents the following questions for our review:

I. "Did the circuit court abuse its discretion in granting a protective order regarding evidence about an ongoing investigation involving subject matter relevant to the instant case?"

II. "Did the circuit court abuse its discretion in declining to suppress evidence of a taser, which was purchased by someone other than the appellant?"

III. "Did the circuit court abuse its discretion by not permitting appellant to cross-examine the complaining witness regarding prior bad acts?"

IV. "Was the evidence in this case sufficient to sustain a conviction of the offenses for which the appellant was convicted?"

We hold that the circuit court did not abuse its discretion and that the evidence was sufficient to lawfully sustain his convictions. Accordingly, we affirm the decision of the circuit court.

BACKGROUND

The Indictment

Mr Cook was indicted by a grand jury on January 9, 2019. He was charged with 13 counts: (1) attempted murder in the first degree; (2) conspiracy to commit first-degree murder; (3) attempted murder in the second degree; (4) kidnapping; (5) conspiracy to commit kidnapping; (6) assault in the first degree; (7) conspiracy to commit assault in the first degree; (8) use of a firearm in the commission of a felony; (9) conspiracy to use a firearm in the commission of a felony; (10) unlawful possession of a firearm with a felony conviction; (11) carrying a handgun; (12) false imprisonment; and (13) conspiracy to commit false imprisonment.

Pre-Trial Motions

On October 7, 2019, the State filed a motion for a protective order pursuant to Maryland Rule 4-263 to protect information relating to an "unrelated investigation by law enforcement." In its motion, the State requested that the trial court "review the information in camera," in accordance with Rule 4-263(m)(2), and determine if disclosure was required. The State noted that it would "arrange for a law enforcement officer who is knowledgeable about the investigation to appear[.]"

On October 10, 2019, Mr. Cook filed a motion in limine seeking the exclusion of testimony relating to the purchase of a taser in the name of Kelly Bennett, a romantic partner of Mr Cook. In the motion, Mr. Cook also sought permission to cross-examine the victim, Mr. Green, about an accusation of mortgage fraud, which was nol prossed as part of a plea agreement relating to Mr. Green's prior federal conviction of conspiracy to possess narcotics with the intent to distribute.^[2]

On October 11, 2019, the circuit court held a hearing on the motions. At the hearing, the State asked the court if it could conduct an ex parte, in-camera hearing of testimony from a law enforcement officer in support of the State's motion for a protective order. The State also offered to make an ex parte proffer of the evidence to determine whether the evidence was discoverable.

Defense counsel opposed the State's request for ex parte review of the evidence. Counsel argued:

If this matter concerns a separate investigation which is in some way connected with this case, which it appears that it does because if it were completely unrelated it wouldn't even be an issue here, that would be something which perhaps would be an alternate theory of who committed the crime or it could have to do with impeachment. I don't know because I don't know the details. But it sounds to me like it's discoverable at the very least and possibly Brady[ ] material.

* * *

Further, I would say that it could possibly run afoul of the Sixth Amendment confrontation clause if it has to do with the accusers of the defendant. And I would request that this information be turned over to the Defense or, in the alternative, that Mr. Cook and I both be permitted to be present during any hearing on this matter.

The court decided to hear the State's proffer ex parte "just . . . to get some context, some idea of what we're talking about. . . . and then decide after that whether we are going to do the in camera [hearing of testimony.]"

After hearing the State's proffer, the court announced:

So I have heard the State's proffer and I do at least have an understanding of the nature of the controversy and the reason they are seeking a protective order. And so that at least gives me something to go on. I think -- again, I haven't heard anything because the law enforcement person hasn't come in yet. All I heard while you were in the hallway was [the State's] proffer about what the nature of this was.

I am satisfied that there is a ground for the State to seek this protective order at this point. I'm not saying there's proof or whatever but I am satisfied that they are making this application in good faith for what they believe is a substantial reason, and that their request for in camera review is something that the Court should do.

The court then cleared the courtroom and heard ex parte, in camera testimony from the State's witness.

Mr. Cook's counsel then returned to the courtroom, and the court relayed the following on the record:

Okay. So I just heard from the law enforcement officer . . . and I am going to seal the record of his testimony before the Court.

What I've heard I think persuades me that there is good cause to enter a protective order. And I am not -- I am leery of saying too much, but I think that the nature of what was revealed to me in camera is such that it would be not appropriate to reveal that information. Given the timing of what I heard related to the particular law enforcement investigation I don't think it is particularly relevant -- actually, I don't think it is relevant at all to the proceedings here because I think the conduct and the events and what was relayed to me all occurred well after the event or the alleged events that are the subject of this trial.

* * *

So I know that's vague but particularly related to the timing, I think that the events that were described to me occurred well after this incident. And I am not sure that even if these things came out whether they would be admissible in court, probably not just given the timing of the events.

Mr. Cook's counsel objected, arguing that "[i]f there is an ongoing investigation that has to do with . . . this case or the parties involved," then the evidence would be discoverable, even if only for the purposes of impeachment. Counsel also offered that if she were given the information, she could withhold it from her client. The court denied this request, stating that revealing the information could compromise the law enforcement investigation even if it were shared only with counsel and not the defendant. Following the court's in camera review, the transcript and records were sealed.

The court next considered Mr. Cook's motion in limine seeking to exclude evidence related to the taser. Mr. Cook's counsel stated to the court that Mr. Green "was taken into a van, allegedly was tased, was shot, was kidnapped, and at one point escaped from the van. The State is alleging that Mr. Cook was a participant." Mr. Cook's counsel also stated that "Mr. Cook has a girlfriend by the name of Kelly Bennett," who "at one point purchased a taser online." Furthermore, although taser wires or taser confetti were found at the scene of Mr. Green's kidnapping, no taser was found.

In opposition, the State represented to the court that Ms. Bennett "will testify based on her statements to the police that she did not purchase the taser and that the defendant had access to her house to come and go as he pleased, and had access to her laptop." Furthermore, the State proffered that Detective Branigan "will testify that tasers are serialized," and that the confetti discharged from the taser used against Mr. Green was marked with a serial number that matched the taser that was bought in Ms. Bennett's name and shipped to her address. Additionally, the State represented that "there will also be forensic evidence linking [Mr. Cook] to the van, DNA, surveillance of him being in the van shortly before the incident occurred. His phone was found in the van."

Mr. Cook's counsel argued, on the other hand, that although there was evidence that Ms. Bennett had recently purchased a taser, there was no direct evidence that the taser purchased was the taser found at the scene of the crime. She further argued that if the evidence was introduced, the danger of unfair prejudice would substantially outweigh any probative value of the circumstantial evidence connecting the taser to Mr. Cook.

The State contended that the evidence was relevant and not prejudicial. The State urged that Mr. Cook's "access to a fairly unique weapon like the one used in a particular crime in combination with all of the other circumstantial evidence placing him inside the vehicle when the crime was committed . . . would certainly rise above the level of speculation and is not likely to result in any unfair prejudice." The State underscored that the connection between the taser evidence and Mr. Cook was not speculative. "Proving that a weapon used in the abduction was sold to and shipped to a place where he had access is certainly relevant evidence."

The court ruled that the State had presented sufficient evidence that the taser could be connected to Mr. Cook, and that the prejudicial...