Dionas v. State
| Decision Date | 01 July 2011 |
| Docket Number | No. 1742 Sept. Term 2009.,1742 Sept. Term 2009. |
| Citation | 23 A.3d 277,199 Md.App. 483 |
| Parties | Bagada DIONASv.STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Deborah S. Richardson (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.Jessica V. Carter (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.Panel: KRAUSER, C.J., GRAEFF and KEHOE, JJ.GRAEFF, J.
On August 7, 2009, a jury sitting in the Circuit Court for Baltimore City convicted appellant, Bagada Dionas, of the following charges: (1) two counts of second degree murder; (2) three counts of first degree assault; (3) one count of use of a handgun in a felony or crime of violence; (4) five counts of openly carrying a dangerous weapon; and (5) two counts of conspiracy to commit first degree murder. On September 21, 2009, the circuit court imposed a sentence of life plus 170 years.1
On appeal, appellant presents the following questions for our review, which we quote:
1. Did the trial court err in precluding cross-examination into Sean White's expectation of leniency regarding his violation of probation?
2. Did the trial court coerce a jury verdict by propounding repeated improper Allen 2-type charges even after the jury had revealed its numerical division?
3. Did the trial court err in failing to voir dire the juror who indicated he had been approached by someone about the jury's verdict and felt pressured by the jury?
4. Did the trial court err in imposing consecutive time for the conspiracy?
5. Was the evidence sufficient to support the conspiracy convictions?
6. Did the trial court improperly instruct on transferred intent and kill zone, two theories inapplicable to the first and second degree murder charges in this case?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
On the evening of July 15, 2007, Maurice White and Wayne White were shot and killed in a field near Wayne's apartment building on Radecke Avenue in Baltimore, Maryland.3 Witnesses testified that appellant shot Maurice in the head, and he then began shooting at the car that Wayne's girlfriend, Tajah Flemming, was driving with their eight-month-old son in the backseat. 4 Sean White, who had been standing near the driver's side door of his car, which was parked near Ms. Flemming's car, jumped into Ms. Flemming's passenger seat. As appellant continued shooting at Ms. Flemming's car, Wayne began running toward the car, shouting for appellant to stop shooting because Wayne's son was in the car. Appellant shot Wayne in the leg, and another shooter, later identified as Charlie Stevenson, came from the back of a building and shot Wayne several times.
On August 6, 2007, appellant was indicted, in seven separate indictments, on charges of first and second degree murder of Wayne and Maurice, attempted first and second degree murder, as well as first degree assault, of Tajah Flemming, Sean White, and Khalee White, and related charges.
On June 29, 2009, the circuit court held a pre-trial motions hearing. The State made a motion in limine to bar appellant from questioning any of its witnesses regarding any prior arrests. Counsel for appellant objected, noting that one of the State's witnesses, Sean, had an agreement with a judge about a pending charge, and arguing that there was “some question about ... that agreement and his testimony.” The court inquired of the State whether the witness was testifying in the matter pursuant to a deal, and the State responded that there was no deal. The prosecutor explained that Sean had requested release from jail pending a violation of probation (“VOP”) hearing because his brother had been murdered and the witness was scared in jail. Appellant's counsel argued that the witness had received favorable treatment when he was released pending the VOP hearing, noting that most individuals are incarcerated pending such hearings.
The court stated that there was no evidence of any quid-pro-quo between the witness and the VOP judge, and it appeared that the witness was released because it would be safer for him to be at home because of his involvement in appellant's trial. Appellant's counsel argued that the VOP judge was waiting to hold the witness' hearing until after Sean testified at appellant's trial, noting that he had agreed to testify, whereas many victims will not testify. The court ultimately stated that it did not believe that the VOP proceedings were impeachable evidence, but it agreed that appellant's counsel could raise the issue again at trial.5
Before trial commenced on July 27, 2009, the parties revisited the issue of Sean's expectation of leniency in his VOP hearing. Appellant's counsel argued that the issue was whether Sean expected to receive a benefit from the judge in exchange for his testimony in appellant's case. Although counsel acknowledged that the State had not offered Sean a deal in exchange for his testimony, counsel argued that the VOP judge had indicated to Sean that he would receive a benefit for testifying in appellant's case. Counsel noted that Sean's violation of probation hearing had been postponed for two years, suggesting that a postponement was granted after Sean's involvement in appellant's case was brought to the attention of the VOP judge. Counsel maintained that “[t]he case kept getting postponed because they wanted to ... hear what happened to the murder trial,” and that Sean received “home detention at the prompting of” the VOP judge.
The prosecutor responded that the VOP judge was aware of Sean's criminal record, which included only a probation before judgment on an attempted distribution charge, a possession of a handgun by a minor charge, and the resulting charge of violation of probation due to Sean's failure to obey all laws and by possessing the handgun. She stated that Sean was arrested for possessing a handgun after the murder, and he said that he had the gun because he was afraid. The prosecutor also noted that Sean had given statements to the police identifying appellant before his VOP.
The court then stated that the VOP judge's “intentions ... could be motivated by a variety of factors, some of which are fully consistent with her empathy towards an individual who had never been convicted of an offense, except” being in possession of a firearm as a minor. Appellant's counsel provided the court with additional cases to review, and the court reserved on the issue pending its review of the cases.
The State called Erika Palmer as its first witness. Ms. Palmer stated that she was at a tattoo party on Radecke Avenue on the evening of July 15, 2007, when she heard some arguing outside. She went to the window to see what was happening. An argument was taking place in the parking lot, which was lit with street lights. Ms. Palmer saw people arguing and then shooting firearms. She did not remember how many people were shooting, but she stated that one of the individuals was shot in the head, and the shooter was short, with brown skin and dreads or plaits in his hair. After she witnessed the shooting, Ms. Palmer ducked below the window because she did not want to see what was happening. Ms. Palmer then went home, but she eventually contacted the police.
Ms. Palmer identified appellant as the shooter in a photo array. 6 She initially wrote that the photo of appellant “looks like” the shooter. The police told her, however, that she could only indicate whether the individual pictured was or was not the shooter, whereupon she wrote that appellant “is the shooter.” At trial, she was uncertain if the shooter was in the courtroom.
Ms. Palmer stated that she observed the shooting from a second floor apartment. She was unable to estimate how far she was from the shooting, and she stated that the events occurred quickly. Ms. Palmer did not give the police any information regarding facial hair, clothing, tattoos, eye color, facial features, or hair color; she stated that it was too dark outside to observe details such as eye color. With respect to the gun, she was able to see only that the gun was big.
Tajah Flemming, the mother of Wayne's son, Khalee White, born November 15, 2006, testified next. On July 15, 2007, she went to Wayne's apartment on Radecke Avenue to pick him up and take him to her grandmother's birthday party. The couple and their son, who was eight months old at the time, left the party at approximately 9:30 p.m. and returned to Wayne's apartment. When they arrived, they noticed that the mother of Wayne's other children had written on the outside of his door. After Wayne called this woman, he and Ms. Flemming left his apartment and argued. Ms. Flemming and Khalee got in her car, and Wayne went back into the house to call Sean and Maurice to pick him up. Wayne then exited the house.
At that point, appellant approached Ms. Flemming's car and told her that she and Wayne needed to take their argument in the house “because that's where he sold his stuff.” Ms. Flemming stated that her boyfriend was drunk, and appellant should not “pay him no mind.” Appellant then left, and Ms. Flemming pulled out of the parking lot onto Radecke Road. Wayne was standing near a bench with some girls.
As Ms. Flemming was driving down Radecke Road, she saw Maurice and Sean driving toward the apartment complex. She made a U-turn so she could follow them. By the time Ms. Flemming returned to the apartment parking lot, Wayne and Maurice were talking to two other guys in the field; Sean was in his car. A couple of girls ran up to Ms. Flemming's car and told her that she needed to leave, at which point she saw appellant with a rifle. Appellant then shot Maurice in the head.
Appellant began shooting at Ms. Flemming's car, and Wayne ran toward the car, shouting: “My son is in there.” Appellant then shot Wayne in the leg.
Meanwhile, Sean jumped into the passenger seat of Ms. Flemming's car. Ms. Flemming...
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