Crippen v. State
| Decision Date | 04 September 2012 |
| Docket Number | No. 531,Sept. Term, 2011.,531 |
| Citation | 207 Md.App. 236,52 A.3d 111 |
| Parties | Alexander CRIPPEN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Steven S. Hamilton (Byron L. Warnken, Warnken, LLC, on the brief) Towson, MD, for appellant.
Edward J. Kelley (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: WOODWARD, WRIGHT, and HOTTEN, JJ.
On December 10, 2010, following a two-day bench trial, Alexander Crippen, appellant, was convicted in the Circuit Court for Worcester County of a number of offenses arising from a May 26, 2010 shooting which took place at 503 Laurel Street, Pocomoke City, Maryland. On December 20, 2010, Crippen filed a Motion for a New Trial, pursuant to Maryland Rule 4–331,1 which did not contain any grounds for the motion, but included a request that the court hold the motion sub curia until a written brief could be filed. On March 15, 2011, Crippen filed a memorandum in support of his Motion for a New Trial, wherein he asserted the following grounds in support of the motion:
(1) newly discovered evidence, in the form of an affidavit of Daryl Wise, which contradicted Tamar Cutler's trial testimony that Cutler had observed Crippen firing a chrome handgun;
(2) the evidence was insufficient to convict Crippen;
(3) the potential gun used in the shooting had been found; (4) the State incorrectly identified a potential witness; and
(5) the charges were unlawful.
On April 8, 2011, Crippen was sentenced. He noted this appeal on April 13, 2011.
Shortly thereafter, Crippen retained new counsel, and, on June 6, 2011, Crippen filed an Amended Motion for a New Trial. In his amended motion, Crippen raised an ineffective assistance of counsel argument for the first time. On August 5, 2011, the circuit court held a hearing on Crippen's motion. At the hearing, the court requested that Crippen clarify which provision of Maryland Rule 4–331 he was relying on for making his ineffective assistance of counsel argument. On August 17, 2011, Crippen filed a supplemental memorandum in which he argued that his claim of ineffective assistance of counsel constituted newly discovered evidence for the purposes of Rule 4–331(c).
On September 20, 2011, the circuit court denied Crippen's motion. Although in his brief Crippen states “this appeal follows,” Crippen did not file a notice of appeal following the court's September 20, 2011 decision.
Crippen, in an effort to fuse the trial record with the Motion for a New Trial record, presents the following question for our review:
Was [Crippen] denied effective assistance of counsel where defense counsel affirmatively introduced and subsequently failed to object to otherwise inadmissible hearsay statements of the victim and the State thereafter used those out-of-court statements to corroborate the victim's testimony, which was essential to proving the State's theory of the case?
The State has filed a motion to dismiss arguing that Crippen's appeal of the September 20, 2011 denial of the Motion for a New Trial is not properly before this Court because Crippen did not file a notice of appeal following the trial court's decision to deny his motion. We agree with the State and shall dismiss Crippen's appeal pursuant to Maryland Rule 8–602(a)(3)2 to the extent that he is appealing the court's ruling of September 20, 2011, because Crippen did not file a timely notice of appeal from the denial of his Amended Motion for a New Trial, as required by Maryland Rule 8–202. 3 In addition, we will not reach Crippen's claim of ineffective assistance of counsel, as the trial record is insufficient to permit this Court to review the claim on direct appeal. Accordingly, we affirm his conviction.
On June 14, 2010, Crippen was indicted on charges of first-degree murder; attemptedfirst-degree murder; attempted second-degree murder; first-degree assault; second-degree assault; use of a handgun in the commission of a felony or crime of violence; wearing, carrying, and transporting a handgun; and reckless endangerment. The indictment arose from Crippen's alleged involvement in the murder of Reginald Handy, Jr., and the attempted murder of Torrance Davis during the May 26, 2010 shooting at 503 Laurel Street. According to the indictment, Crippen used a handgun during the attack; however, prior to trial, the State received a ballistics report which indicated that Handy was killed by a .223 caliber rifle bullet fired by a second shooter. Therefore, on December 1, 2010, the State nol prossed the first-degree murder charge against Crippen.
I. Trial Proceedings
On December 6, 2010, Crippen waived his right to a jury trial, electing instead to be tried by the court. The court conducted a two-day bench trial ending on December 7, 2010. In its order denying Crippen's Amended Motion for a New Trial, the court summarized the evidence presented at trial as follows:
The evidence [at trial] revealed that at 9:59 P.M. on May 26, 2010 a bullet was fired striking Reginald Handy, Jr. in the back and killing him. Mr. Handy was one of a group of mostly young men gathered in the side and front yards of 503 Laurel Street in Pocomoke City. A street camera mounted on Laurel Street captured some of the events on Laurel Street and in the area of 503 Laurel [Street] before, during and shortly after the time Handy was shot. The camera video was received into evidence. It showed that within seconds after the shot killing Reginald Handy was fired, a man firing a handgun moved across the front of 503 Laurel Street near the front sidewalk, then ran into the street and out of the camera's view. The shell casings recovered at the scene established that the man was firing a .380 handgun. The video did not reveal at whom the gunman was firing as the target of his shots was not within camera view.
The police, at first, believed that Handy was shot and killed by a .380 caliber bullet, presumably fired by the man depicted on the video. Shortly before trial, the investigation revealed that Handy was killed by a .223 caliber rifle bullet. That bullet is believed to have been fired from a .223 caliber rifle found the day after the shooting, hidden in the yard of a house near 503 Laurel Street. The court determined beyond a reasonable doubt that Alexander Crippen was the gunman firing the .380 caliber handgun.
Twelve witnesses testified for the State. Six were police officers involved in various aspects of the investigation. One police officer, Det. Sgt. Lupiwok, related the contents of his interview with Crippen. Four witnesses were persons at or near the scene at the time of the shooting. Three of those were in the front or side yard of 503 Laurel Street. The fourth “on-scene witness” was across the street and some distance down from 503 Laurel Street. Two of the on-scene witnesses (Torrance Davis and Tamar Cutler) identified Crippen as the man firing the handgun. Torrance Davis said that Crippen was shooting at him. Tamar Cutler said that, while he was standing on the front porch or stoop of his house, he saw Crippen firing a chrome colored handgun. He placed Crippen's location while firing the handgun as in the front of 503 Laurel Street. Two other on-scene witnesses (Kavron Rowley and Lorenzo Davis) identified Crippen as having been in the area of 503 Laurel Street at the time of the shooting and described some of the events which transpired. They were not in a position to see who fired the shots. Two other witnesses (Kimberly DeShields and Vera Byrd) testified to an event occurring only hours before the shooting. Kimberly DeShields said she saw Crippen brandish a silver-colored handgun while threatening Vera Byrd. Ms. Byrd corroborated the testimony of Ms. DeShields, but said she did not actually see the gun in Crippen's hand. She testified that when she heard Ms. DeShields exclaim “Oh, he's got a gun” (referring to Crippen), she was too frightened to move and did not look at Crippen.
In addition to identifying Crippen as one of the shooters, Davis testified that he had been involved in a few altercations with Crippen during the prior summer, and that, about a week before the shooting, he had been in another altercation with Crippen. Davis further testified that, following the shooting, he went to the Peninsula Regional Medical Center where Handy, his cousin, was taken. Davis stated that, while at the hospital, he spoke with Sergeant Scott Brent, a Maryland State Police Officer.
On cross-examination, Crippen's attorney asked Davis about statements he had made to the police regarding his recollection of the shooting. A recording of the statements which were made at the hospital by Davis to Sgt. Brent was also played during cross-examination. In that statement, Davis identified Crippen as the shooter and asserted that Crippen had shot at him. After playing Davis's statement for the court, Crippen's attorney introduced the recording into evidence.
Later in the trial, the State called Sgt. Brent to testify about the conversation that he had at the hospital with Davis. Sgt. Brent testified that Davis appeared to be very upset, and that Davis said he would cooperate if he could see Handy's body. Sgt. Brent further testified that after Davis was permitted to see Handy's body, Davis provided a statement about the incident. Sgt. Brent recorded that statement. On cross-examination, Crippen's attorney asked Sgt. Brent about his interaction with Davis on the night of the shooting. During the exchange between Crippen's attorney and Sgt. Brent, the following colloquy occurred:
[Crippen's attorney]: Okay. When you arrived at the hospital do you remember what time that was?
[Sgt. Brent]: The time I arrived?
[Crippen's attorney]: Yeah.
[Sgt. Brent]: I got the call at 22:10 hours which is 10:10 p.m. I was there—I walked in the room at 22:39. The time I walked in was the time they declared Reginald Handy deceased.
[Crippen's attorney]: What time was that?
[Sgt. Brent]:...
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