Dickey v. State
| Decision Date | 15 April 2008 |
| Docket Number | No. 23, September Term, 2007.,23, September Term, 2007. |
| Citation | 946 A.2d 444,404 Md. 187 |
| Parties | Desmond Ellison DICKEY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Brian L. Zavin, Asst. Public Defender (Nancy S. Forster, Public Defender), on brief, for petitioner/cross-respondent.
Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., M. Jennifer Landis, Asst. Atty. Gen.), on brief, for respondent/cross-petitioner.
Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, JOHN C. ELDRIDGE (Retired, specially assigned), ALAN M. WILNER (Retired, specially assigned) and DALE R. CATHELL, (Retired, specially assigned), JJ.
This criminal case presents the question of whether the Circuit Court for Baltimore City erred in declining to give a jury instruction requested by the defendant as to the evaluation of the testimony of a witness who uses or is addicted to drugs. In particular, we consider whether the trial court erred in refusing to instruct the jury that the testimony of a particular witness "must be examined with greater scrutiny than the testimony of any other witness." We shall affirm the judgment of the Court of Special Appeals, but for different reasons.1
Petitioner, Desmond Ellison Dickey, was indicted by the grand jury for Baltimore City for the offenses of first degree murder, attempted first degree murder, conspiracy to commit murder, and related charges. The charges arose from a shooting in the area of Edmondson Avenue and Pulaski Street in Baltimore on August 12, 2001, that resulted in the death of Anthony Carlest and wounding of his cousin, Melvin McCallister.
The primary issue in the case was the identification of the shooter and the main defense was mis-identification. The State's case was based primarily on the testimony of McCallister and three bystanders who were present during the shooting. McCallister testified that he got into a fight with Juan Tucker, Dickey's cousin, shortly before the shooting. The altercation ended when McCallister got into a car with his cousin Carlest, and Tucker ran in the other direction. McCallister testified that he and Carlest drove down Edmondson Avenue and were stopped at a red light when Juan Tucker pulled up on their right in a burgundy car with tinted windows. Tucker rolled down the window and said something to McCallister that McCallister did not hear. When the light changed, Tucker looked backwards as though he was talking to someone in the rear seat of his car. As Carlest drove about halfway through the intersection, McCallister heard around five gunshots and felt a bullet hit him in his back. After observing that Carlest had been shot, McCallister steered the car into the wall of a school building. He testified that he did not see the shooter because he had slid down in his seat; however, he picked Dickey out of a police line-up after the shooting. He stated, on the back of Dickey's photo,
Anna Boxer testified that while walking back from the store, she heard honking, turned around and saw a white Caravan stopped at a red light at Pulaski Street and Franklin Street. The driver got out and ran towards a "little maroon car," also stopped at the light, shooting "more than three" shots at the back of it. Ms. Boxer stated that the maroon car then "drifted across to a light pole" and hit another car. The driver of the white Caravan, meanwhile, gave his gun to a man she recognized from the convenience store, who was now sitting in "another maroon car" on the other side of the intersection. The two men switched cars and the shooter drove off in the maroon car. Ms. Boxer identified Dickey as the shooter and driver of the white Caravan.
William McLain testified that on the day of the shooting he was visiting his sister and nieces at their home on Pulaski Street. He opened the door to get some air at around 2:30 p.m. and heard gunshots. Mr. McLain stated that he saw a man shooting at a red car with three people in it. He testified at trial that he told the police that he saw the man coming back from a white van while putting a gun in his belt, and that the man spoke to him. His police statement indicated that he saw a man coming back from a red car, putting a gun in his pants and getting into the van while the other car pulled away. McLain wrote down the license plate of the van and gave it to the police. The Motor Vehicle Administration listed Dickey as the owner of the van.
Earl Price, the witness whose testimony is the subject of this appeal, testified that he knew both Tucker and Dickey as long-time acquaintances. At around 2:30 p.m. on the day of the shooting, Price was walking on Edmondson Avenue and heard gunshots. He stated that he saw Dickey and Tucker behind a light colored car moving towards the intersection, and that Tucker was pointing towards the car while Dickey was kneeling or bending down. He said at first that he could not tell what was in their hands. After reviewing a transcript of his taped statement from October 2001, however, he testified that he saw Dickey kneeling with his arm extended, and that he had seen "something black" in Dickey's right hand and that he had written on the back of a photo of Dickey after picking him out in a photo array, "I saw him stooping down pointing in the area of the car with something black [in] this [right] hand. . . ." Price testified that he did not know if the object was a gun or whether Dickey was shooting at the car, but upon review of notes from a February 2004 interview with police, he later stated that he saw "Dezzy kneeling down and shooting at Franklin and Pulaski," that the shooting was over by the time Dickey lowered his arm, and that Dickey and Tucker then ran away from the car. Again after reviewing his statement, Price clarified that Dickey and Tucker got into a white car.
Price admitted that he testified at Juan Tucker's trial in 2003, and stated at that trial, under oath, that he lied to the police about being present during the shooting. At Dickey's trial, however, he stated that he lied at Tucker's trial because he was afraid "of what might happen" to him, and that his current version was the truth even though he was still afraid for his safety.
Price admitted that he was a heroin addict, an occasional cocaine user, and that he had a long history of drug use, starting from age fifteen or sixteen. Price testified that he was seeking help for his drug habit currently. Price admitted that he had used heroin on the day of the shooting but that it did not affect his ability to witness or recollect the events. He stated as follows:
On re-direct examination, Price stated that his drug use that day did not affect his ability to see the events that he described. He stated:
Price indicated also that he had been incarcerated for drug offenses in the past. He stated that he was currently on probation for a conviction of possession with intent to distribute a controlled dangerous substance. Finally, Price stated repeatedly on the record that he was testifying at Dickey's trial as part of a deal to avoid charges following an arrest for possession of controlled dangerous substances on October 4, 2001.
Dickey did not testify in his own behalf nor did he call any witnesses in his defense. At the close of evidence and prior to jury deliberation, petitioner's counsel requested the following jury instruction:2
The Circuit Court refused to give the instruction primarily on the ground that the requested instruction would be fairly covered by other instructions to the jury concerning witness credibility and accuracy of a witness's memory. The court stated as follows:
The Circuit Court then instructed the jury in relevant part as follows:3
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