Diggs v. State

• Decision Date: 28 August 2013
• Docket Number: Sept. Term, 2010.,Nos. 932,929,s. 932
• Citation: 73 A.3d 306,213 Md.App. 28
• Parties: Howard Bay DIGGS v. STATE of Maryland. and Traimne Martinez ALLEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

213 Md.App. 28

73 A.3d 306

Howard Bay DIGGS

v.STATE of Maryland.andTraimne Martinez ALLEN

v.STATE of Maryland.

Nos. 932, 929, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Aug. 28, 2013.

Nancy S. Forster, Towson, MD, Peter F. Rose (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Brenda Gruss (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, DEBORAH S., KEHOE, ROBERT B. KERSHAW (Specially Assigned), JJ.

KEHOE, J.

After a seven day trial by jury in the Circuit Court for Montgomery County, co-appellants Traimne Martinez Allen and Howard Bay Diggs were convicted of attempted first degree murder, first degree burglary, attempted robbery with a deadly weapon, robbery with a deadly weapon, conspiracy to commit robbery, two counts of first degree assault, and two counts of using a handgun in the commission of a crime of violence. The charges arose out of an alleged home invasion and robbery that occurred in Montgomery County on June 23–24, 2009.

On appeal, appellant Allen presents the following questions for our review, which we have expanded, reordered, and rephrased:

I. Did the trial court err in prohibiting the defense from introducing evidence that DNA samples obtained from items recovered at the crime scene produced Combined DNA Index System “matches” to persons other than appellants?

II. Did the trial court err in admitting DNA evidence without supporting contextual statistical data?

III. Did the trial court err in denying appellants' motion for mistrial when the prosecutor asked certain improper questions during the direct examination of a witness?

IV. Did the trial court err in denying Allen's motion for mistrial when the prosecutor stated during opening statement that Allen was unemployed?

V. Did the trial court err in prohibiting Allen from eliciting exited utterances made by a co-defendant who was tried separately?

VI. Did the trial court err in its determination that a letter written by Allen, addressed to his girlfriend, did not fall within the attorney-client privilege and did not constitute attorney work product?

VII. Did the trial court err in instructing the jury as to accomplice liability?

VIII. Was the evidence legally sufficient to support appellants' convictions for attempted first degree murder?

Appellant Diggs joins Allen in questions I, III, VII, and VIII, and adds the following, which we have reordered and rephrased:

I. Did the trial court err in its determination that a statement contained in a police report was inadmissible because it constituted hearsay?

II. Did the trial court err in allowing the prosecution to comment on Diggs' demeanor during closing argument?

Perceiving no reversible error, we will affirm the decisions of the trial court.

BACKGROUND

On March 29–31 and April 1–2, 5–6, 2010, Allen and Diggs were tried jointly before a jury on the aforementioned charges. The State called eighteen witnesses to testify in its case-in-chief. This evidence, taken in the light most favorable to the State as the prevailing party, established the following:

Negussie and Gordon

On the night of June 23, 2009, Sentayehu Negussie and Jeremy Gordon picked up their ex-girlfriends, Lazoya King and Shavon Jackson, along with Jackson's cousin, Chantel Fletcher, from the Shady Grove metro station in Montgomery County, Maryland. The group drove to a gas station in Takoma Park, where Gordon bought drugs, and then continued to drive around for an hour or two while smoking marijuana and ingesting ecstasy. They eventually returned to the apartment Negussie and Gordon shared, which was located near Rockville, in Montgomery County. Jackson was last into the apartment, and intentionally left the door unlocked.

Within minutes of their arrival, three men—Diggs, Allen, and an associate named Alex “Gutta” Harris—slammed through the apartment door. Allen and Diggs had dreadlocks and wore bandanas or scarves over their faces. Harris wore a baseball hat turned backwards, and a bandana which did not cover his face. Diggs was pointing a gun. The men ordered Negussie and Gordon to drop to the floor. Negussie obeyed and dropped to the floor, where his hands were bound together behind his back using duct tape. He was then punched and kicked in the head, and his arm was sliced with a knife (eventually requiring fifteen stitches). Gordon refused to go the floor, and a fight ensued. During the fight, Gordon was punched in the face, kicked in the face and torso, stabbed in the right arm with a knife, and, according to Jackson, “pistol whipp [ed]” by Diggs. Gordon was forcefully dropped to the floor at some point during the fight, and his hands were bound together behind his back using duct tape.

Once Negussie and Gordon were subdued, the intruders proceeded to take various items from the apartment, including cash, drugs, a PlayStation, and Negussie's wallet, watch, and sneakers. While the men were in the process of collecting items, Gordon broke free from the duct tape bindings, jumped up, and ran toward a sliding glass backdoor that led out of the apartment. Shots were fired, the glass door shattered, and, as he exited the apartment or immediately thereafter, Gordon was hit in the lower back by a bullet. As he ran away, he encountered a police officer—Sergeant Wyne—who tended to his wounds and called for medical assistance.

Jackson, King, and Fletcher

Jackson, King, Gordon, and Negussie knew each other for about one year prior to the above-described incident. During much of this period, Jackson dated Gordon, and King dated Negussie. These relationships eventually ended on poor terms. A short time later, Jackson began dating Alex Harris, and King began dating Diggs.

According to Jackson, at some point during the day on June 23, 2009, she and Harris had a conversation about “robbing somebody” for “money or drugs.” Later that evening, while at her apartment, she and King decided to “set[ ] up” Gordon and Negussie because they were known to keep drugs and “a big wad” of cash in their apartment. Jackson first called Gordon, but he didn't answer his phone. King then called Negussie, who answered and agreed that he and Gordon would pick up the women later that evening at the Shady Grove metro station.

Soon thereafter, Harris and Diggs arrived at Jackson's apartment. Together, Jackson, King, Harris, and Diggs devised a plan to carry out the robbery. Pursuant to this plan, Jackson would grant Harris and Diggs access to the Gordon–Negussie apartment. Upon their entry into the apartment, Diggs, wielding a gun, would order everyone inside the apartment to the floor. Harris and Diggs would then tie up Gordon and Negussie, kick and punch them a few times, and, finally, search the apartment for cash and drugs. According to Jackson, once the plan was formulated, “[w]e basically did like a little act out plan of what we was going to do.” While the group was rehearsing, Fletcher—Jackson's cousin—arrived at the apartment and joined in on the scheme.

Around 9 p.m. that night, Allen arrived in a green Buick and picked up Jackson, King, Fletcher, Harris, and Diggs. As they drove, the group continued to discuss and further plan out the robbery. They first arrived at and scouted out the area surrounding the Gordon—Negussie apartment. The group then drove to the Shady Grove metro station, where Jackson, King, and Fletcher exited the Buick.

An estimated fifteen minutes later, Gordon and Negussie arrived at the metro station and picked up Jackson, King, and Fletcher. While the group was driving around and doing drugs, Jackson kept Harris abreast as to their activities and whereabouts via periodic text messages. After joyriding for an hour or two, Gordon and Negussie drove the women back to their apartment. Jackson was the last to enter, and intentionally left the door unlocked. She and Fletcher then went to the bathroom, where they contacted Harris and informed him that the group had arrived at the apartment and that the door was unlocked.

Soon thereafter, Harris, Diggs, and Allen burst through the front door of the apartment. Jackson testified that Diggs wore “a red bandana” over his face and “[k]haki shorts, white t-shirt, and brown converse [shoes];” Harris wore a “black bandana” over his face, a black hat turned around backwards, and “[a]ll black, a black shirt, black shorts and black sneakers;” Allen wore “a black scarf” over his face and head and “blue jeans and a white t-shirt.” According to Jackson, Diggs “was pointing a gun and[ ] told everyone to get down....” Gordon and Negussie were subsequently beaten, subdued, and then robbed of drugs, cash, and other items. At some point during the robbery, Jackson, King, and Fletcher exited the apartment. On the way out, King grabbed a knife from the carpet, and Jackson heard “gunshots.” The three women walked to a nearby 7–Eleven, tossing the knife into bushes along the way. They were then apprehended by police officers and arrested.

The Police

Unbeknownst to the participants in the events we have described, Montgomery County police officers were present in force in the vicinity of the Gordon–Negussie apartment when the home invasion occurred. Police officers wearing plain clothes were in the area conducting surveillance as part of an investigation into a recent series of automobile thefts. In the course of these efforts, two officers, Sergeant Wyne and Officer Drengwitz, observed three men—Harris, Diggs, and Allen—standing at the rear of a green Buick parked on a side street. Sergeant Wyne and several other officers followed the men to a nearby 7–Eleven.

While the men were inside the store, Officer Drengwitz approached the parked Buick and observed that it contained a black and gray backpack, one black bandana, one red bandana, two pairs of sneakers, and one pair of white gloves.

Another officer, Officer Chmiel, observed the men inside the 7–Eleven. Officer Chmiel described one of the men as having dreadlocks...