Drake and Charles v. State, 3021, September Term, 2007.

• Decision Date: 07 July 2009
• Docket Number: No. 3021, September Term, 2007.,3021, September Term, 2007.
• Citation: 186 Md. App. 204,975 A.2d 204
• Parties: Dwayne DRAKE and Jamal Charles v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

975 A.2d 204

186 Md. App. 204

Dwayne DRAKE and Jamal Charles v. STATE of Maryland.

No. 3021, September Term, 2007.

Court of Special Appeals of Maryland.

July 7, 2009.

[975 A.2d 206]

Jon Cardin and David Kennedy (Nancy S. Forster, on the brief), Baltimore, for appellant.

Sarah Page Pritzlaff (Douglas F. Gansler, on the brief), Baltimore, for appellee.

Panel: DEBORAH S. EYLER, KEHOE, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

Dwayne Drake and Jamal Charles, the appellants, were tried jointly before a jury in the Circuit Court for Baltimore City on charges arising out of the shooting death of Bryant Jones at his home. Both appellants were convicted of second-degree murder and use of a handgun in a crime of violence. Drake also was convicted of wearing, carrying, or transporting a handgun.¹ Drake was sentenced to consecutive terms of 30 years' imprisonment for second-degree murder, and ten years' imprisonment (five without possibility of parole) for use of a handgun in a crime of violence. Drake's conviction for wearing, carrying, or transporting a handgun was merged into his conviction for use of a handgun in a crime of violence.² Charles was sentenced to consecutive terms of 30 years' imprisonment for second-degree murder, and 20 years' imprisonment (five without possibility of parole) for use of a handgun in a crime of violence.

Drake and Charles filed separate notices of appeal, which were consolidated in this Court. They raise the following issues, which we have rephrased:

I. Did the trial court err in asking the jury on voir dire whether they could "not convict a defendant without quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law"?³

II. Did the trial court err in denying the defendants' motion for mistrial after criticizing defense counsel's cross-examination in front of the jury?

III. Did the trial court err in allowing the State to elicit testimony that a witness was afraid to cooperate with detectives?

IV. Did the trial court unduly restrict defense counsel's closing argument?

For reasons that follow, we shall affirm the judgments.

FACTS AND PROCEEDINGS

On April 14, 2006, Tamirra Jones celebrated her 16th birthday at a party at her home, with friends and family, including her father Bryant Jones. The party began around 8:30 or 9:00 p.m., in the basement. Guests paid a $1 per person admission fee, although some were not charged. Shoelh and Takia Goode, Tamirra's cousins, collected the fees from partygoers at the front door and gave the money to Mr. Jones. There were roughly 20 partygoers in the basement, and several others upstairs.

Drake and Charles attended the party. An argument broke out between Drake and another guest, Tashima Miller. The argument was precipitated by Drake and his friends dancing roughly, "swinging their arms, bumping into people." Tamirra's parents and two adult cousins, Kim Holeman and Sharon Coston, went down to the basement to re-establish order and lay down some ground rules. The adults asked anyone carrying a weapon to leave. Charles said he had to leave and made a motion as if he were going to do so. After one of his friends said, "don't play like that, they'll take you serious," Charles stayed.

After the adults returned upstairs, Charles asked Shoelh Goode to dance, but she declined. Charles grabbed her arm. The adults went back downstairs,⁴ and Tamirra took her father aside and told him she wanted Charles to leave. Mr. Jones then told Charles he had to leave.

Charles gathered his friends and urged them to leave with him. Charles, Drake, and about 11 of their friends went upstairs, along with Tamirra's parents, the other adults, and Shoelh and Takia Goode. Charles and Drake demanded their dollar back from Mr. Jones. There was some dispute as to whether Charles had paid the $1 entrance fee. Shortly afterward, Mr. Jones was shot and fatally wounded.

Kim Holeman testified that she was standing next to Mr. Jones when he was killed. They were in the doorway to the front porch. Charles and Drake were on the front porch several feet away, arguing over whether they were going to get their dollar back, when Charles shot Mr. Jones. Later that evening, Holeman was shown a photographic array and identified Charles's picture as the shooter. Charron Jones, Tamirra's cousin, also identified Charles as the shooter.

Sharon Coston's testimony about the shooting was consistent with Holeman's testimony. According to Coston, just before the shooting, Drake told Charles, "f____k this, show him how we do it in something ville." She "saw a flashing light," and then the adolescents ran from the porch. She first thought she had heard firecrackers detonating, but then realized Mr. Jones had been shot. In a statement she made to the police on the night of the shooting, however, she did not mention the remark by Drake.

Lisa Jones, Tamirra's mother and the widow of the victim, testified that she heard Drake tell Charles, "Show him how we do it in Haneysville. That's what it sound[ed] like he said." She did not see the shooting, however, because when the argument between Drake and Charles and her husband was escalating, she went inside to call 911. She then heard gunshots, returned to see her husband lying on the floor, mortally wounded, and saw Drake, Charles, and others running away.

Takia Goode testified that Drake handed something to Charles, and Charles extended his hand out in front of his body. She heard three shots and saw three flashes, but did not actually see Charles pull out a gun.

We will include additional facts in our discussion of the issues.

DISCUSSION

I.

The appellants contend the trial court abused its discretion when, in response to the State's proposed voir dire questions, and over defense objection, the court asked venire persons the following question:

I'm going to assume that many of you, from having done a few of these, watch way too much TV, including the so-called realistic crime shows like CSI and Law and Order. I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic [e]ffect and for this dramatic [e]ffect they purport to rely upon, quote scientific evidence, close quote, to convict guilty persons. While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. Therefore if you are currently of the opinion or belief that you cannot convict a defendant without quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise.[⁵]

According to the appellants, "the effect of this question was essentially to instruct the jury that they could convict . . . on the evidence that they would hear in [this] case." In addition, the appellants maintain that the trial court abused the voir dire process by "catechizing" to the jurors, and by "determin[ing] whether jurors will be able to follow the trial court's instructions." The appellants further argue that the CSI reference "inform[ed] jurors that they need not expect evidence of scientific quality, thereby . . . trivializing the State's burden of proof." The State counters that the appellants' arguments "misconstrue the court's [voir dire] question."

The Sixth Amendment, incorporated through the Fourteenth Amendment, guarantees criminal defendants the right to a fair trial by an impartial jury. Duncan v. Louisiana, 391 U.S. 145, 147-50, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Article 21 of the Maryland Declaration of Rights provides a similar guarantee. Williams v. State, 394 Md. 98, 105-06, 904 A.2d 534 (2006). "Critical in ensuring that the guarantee is meaningful is the voir dire of the venire, the purpose of which is to exclude from the venire potential jurors for whom there exists cause for disqualification, so the jury that remains is capable of deciding the matter before it based solely on the facts presented, and uninfluenced by extraneous considerations." Id. at 107, 904 A.2d 534; see also Curtin v. State, 393 Md. 593, 600, 903 A.2d 922 (2006) ("Voir dire is the primary mechanism through which the constitutional right to a fair and impartial jury, guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights, is protected."); Hill v. State, 339 Md. 275, 279, 661 A.2d 1164 (1995).

"In Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification, and not as in many other states, to include the intelligent exercise of peremptory challenges." Stewart v. State, 399 Md. 146, 158, 923 A.2d 44 (2007); see also Curtin, supra, 393 Md. at 602-03, 903 A.2d 922; State v. Thomas, 369 Md. 202, 207, 798 A.2d 566 (2002) ("`Undergirding the voir dire procedure and, hence, informing the trial court's exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: to ascertain the existence of cause for disqualification.'") (quoting Dingle v. State, 361 Md. 1, 10, 759 A.2d 819 (2000)) (other quotations omitted); id. at 217, 798 A.2d 566 (Raker, J., concurring) ("Maryland is one of the few states in the country that does not permit voir dire to inform the exercise of peremptory challenges. It has long been the rule in Maryland that voir dire is limited to the detection of bias sufficient to challenge a prospective juror for cause and not to assist in the exercise of peremptory challenges."); Dingle v. State, supra, 361 Md. at 13, 759 A.2d 819 ("Maryland has adopted, and continues to adhere to, limited voir dire."); Davis v. State, 333 Md. 27, 39-42, 633 A.2d 867 (1993); Height v. State, 185 Md.App. 317, 331-32, 970 A.2d 921 (2009).

"We review the trial judge's...