Cunningham v. State

• Decision Date: 18 August 2016
• Docket Number: No. 2395,2395
• Parties: RICARDO CUNNINGHAM v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

RICARDO CUNNINGHAM v. STATE OF MARYLAND

No. 2395

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

August 18, 2016

UNREPORTED

Meredith, Kehoe, Nazarian, JJ.

Opinion by Meredith, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Following a five-day jury trial in the Circuit Court for Montgomery County, Ricardo Cunningham, appellant, was convicted of three charges stemming from a home-invasion robbery, namely, first degree assault, armed robbery, and use of a firearm in the commission of a crime of violence.¹ In this timely appeal, appellant raises several claims of error.

QUESTIONS PRESENTED

Appellant presents the following questions for this Court's review:

1. Did the trial court deprive Appellant of a fair trial by erroneously allowing the State to identify Appellant and introduce his statements?

2. Did the trial court err by allowing a lay witness to testify about cell phone tower data used to place Appellant at the crime scene?

3. Did the trial court violate Appellant's right to a fair trial by allowing the sheriff to follow Appellant to the bench for bench conferences?

4. Did the trial court err by allowing the State to call Charlette Tillman as a witness and to introduce the records of Appellant's jail calls after the State had failed to reveal in discovery that it would call her as a witness and utilize the records?

5. Did the trial court err in allowing the State to impeach Appellant with convictions that had not been disclosed to defense counsel in discovery?

6. Did the trial court err in admitting the recording of a 911 call?

7. Did the trial court err in allowing the State to make improper and prejudicial statements during closing argument?

8. Did the trial court's chastising of defense counsel and limitation of defense counsel deprive Appellant of his due process right to a fair trial?

We find merit in appellant's claim that the State withheld discovery of documents that it intended to use at trial (Issue No. 5), and, because we are unable to conclude that the trial court's error in finding no discovery violation was harmless beyond a reasonable doubt, we shall vacate the convictions and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

The evidence at trial revealed the following. On the morning of June 21, 2013, there was a knock at the door of the apartment of Todzja Williams, which was located on Quince Orchard Road in Gaithersburg, Maryland. Ms. Williams was not home at the time, but her boyfriend, Byron Clarke, was inside the apartment. Mr. Clarke testified that, in response to the knock, he looked through the door's peephole and saw a man wearing a yellow or green construction vest. Because Mr. Clarke assumed that the man was "working outside . . . for the apartment complex," he opened the door. The man in the construction vest asked Mr. Clarke if "T" was home. ("T" is a nickname for Mr. Clarke's girlfriend, Todzja.) Mr. Clarke responded that she was not home. The man then asked if Mr. Clarke had any marijuana, and Mr. Clarke responded that he did not. Mr. Clarke began to close the door, but the vest-wearing man and a man in a ski mask, previously unseen by Mr. Clarke, rushed into the apartment.

The vest-wearing man produced a handgun from his back pocket, and aimed it at Mr. Clarke's face. The man in the vest demanded to know where Ms. Williams was, and yelled at Mr. Clarke to "give [him] all the money and the weed." When Mr. Clarke replied that hehad neither money nor weed, the man in the ski mask took the gun from the man in the vest and began beating Mr. Clarke about the head and face with it. The assailants then produced a bag of zip ties and ordered Mr. Clarke to his knees. Fearing that he was about to be executed, Mr. Clarke punched the mask-wearing man in the face and ran through a screen door to escape the apartment. At some point, Mr. Clarke dashed back inside to grab his phone, and when he did so, the man in the mask grabbed him again. Mr. Clarke was able to break free and run out the back door again. Shortly thereafter, he saw the two men leave the apartment.

Mr. Clarke then called Ms. Williams, and told her that he had been robbed. In her testimony at trial, Ms. Williams described this phone call as follows:

[BY THE STATE]: Did there come a time that you got a call from Byron Clarke?

[BY MS. WILLIAMS]: Yes, there was.

Q. Do you know approximately around when that was? Morning, afternoon, evening —

A. It was in the morning.

Q. Okay, and what was his tone of voice when he called you?

A. Like panicked. He was like in hysterics. He was worried.

Q. What did he say happened?

A. He said oh my god, oh my god I've been robbed.

Q. And what did you do when he called you?

A. I answered the phone and I told him that he was playing. ["]Stop playing with me,["] you know, I didn't believe him. ["]You didn't get robbed["] because he's at my house.

Q. Okay, and then did there come a point where your opinion changed?

A. Yes, when I went home and walked up the sidewalk and saw him bleeding in my backyard.

* * *

Q. What was his demeanor like when you arrived at the house?

A. He was, he was like I don't know. He was beaten up. He was scared. He was trying to tell me over and over again that he got robbed and oh my gosh, like he was just all over the place. I'm trying to get him to calm down and sit down because there's blood everywhere and I could not decipher where the blood was coming from because it was so much, all over his face, his head, him in general.

Ms. Williams called 911 to summon medical assistance for Mr. Clarke. Ms. Williams described herself as "scared, upset and extremely frustrated" when she placed the 911 call, "because all I wanted was somebody to hurry up and figure out why he's bleeding and where he's bleeding from and [are] there internal injuries." The recording of the 911 call was played for the jury, over appellant's objection.

Officer Daniel McCarthy, of the Gaithersburg City Police, responded to the apartment. Officer McCarthy testified that Mr. Clarke was "still bleeding somewhat" when he arrived, and that he observed a three-inch laceration on Mr. Clarke's forehead. He described Mr. Clarke as "kind of in shock," and not "quick to respond to my questions," although Mr. Clarke did tell Officer McCarthy about his attackers. Officer McCarthy saw that theapartment was in disarray, and noted a plastic bag of zip ties on the floor of the bedroom. Mr. Clarke described the assailants to Officer McCarthy, and Officer McCarthy broadcast the description of the suspects over the police radio. Mr. Clarke was transported to the hospital for treatment.

Detective John Gallagher, of the Montgomery County Police Department's Major Crimes Unit, interviewed Mr. Clarke in the emergency room, and took a buccal swab from inside Mr. Clarke's cheek for DNA comparison purposes. Mr. Clarke gave Detective Gallagher a description of the assailants, which Detective Gallagher incorporated into a statement that Mr. Clarke signed. Mr. Clarke described the vest-wearing assailant as an African-American man wearing a green vest with reflective tape on it, a gray t-shirt, a red and black baseball cap, and jeans. The vest-wearing man also had a silver semi-automatic type handgun with gold accents. Mr. Clarke described the masked suspect as an African-American man with shoulder-length dreadlocks, wearing a black v-neck shirt and jeans.

The lead detective assigned to this case was Detective Brian Dyer, of the Major Crimes Unit. Detective Dyer arrived at Ms. Williams's apartment at around 11:30 a.m. He observed that the apartment "looked a little bit disheveled as[] it looked like there was a struggle in there. The screen door was popped out on the ground. [S]ome furniture was moved like it was, you know, someone had just been in a struggle." Detective Dyer observed a plastic bag of zip ties on the floor. He began his interview of Ms. Williams by asking if she had any idea who might have done this, and she gave him two names: "Bishop" and "Bella."As it turned out, Bishop was the nickname of Sterling Hollis, who was a friend of appellant. Bella resided elsewhere in the same apartment complex as Ms. Williams, and was Hollis's girlfriend.

During Ms. Williams's testimony at trial, she recounted that, on June 20, 2013, the day before the incident giving rise to this case, she was in her apartment when there was a knock on the door at about 9 a.m. Mr. Clarke remained in their bedroom, while Ms. Williams went to answer the door. It was Bishop (i.e., Sterling Hollis), a person she had seen before. He was alone, and "looking for weed." Ms. Williams told him that she did not have any, and did not know anyone who had any, but she had money, and she, too, was interested in acquiring some weed. She knew Bishop to be the boyfriend of a friend of hers named Bella. She told Bishop that Bella owed her $10, and he gave Ms. Williams the money. Later, Bella called Ms. Williams, and informed her that she was upset that Ms. Williams had aired her business. Ms. Williams informed Detective Dyer that Bishop had dreadlocks past his shoulders, which he wore pulled back on June 20.

Detective Dyer then set about learning the identity of Bishop. During his interview with Ms. Williams, although not as a result of it, Detective Dyer learned that there had been a high-speed chase culminating in a bail-out and the abandonment of the vehicle at a Silver Spring parking garage. Two men were seen on surveillance video running away from the vehicle and leaving the vehicle — a tan Ford Explorer with DC tags — at the gate of the garage. Officers secured the Explorer, and it was eventually towed to a police facility.Detective Dyer ran the plates of the abandoned Explorer, and learned that the vehicle was registered to Sterling Hollis. Detective Dyer found a phone...