Drew v. State

• Decision Date: 18 January 2022
• Docket Number: 2314-2019
• Parties: DEVAUGHN DREW v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

DEVAUGHN DREW v. STATE OF MARYLAND

No. 2314-2019

Court of Special Appeals of Maryland

January 18, 2022

Circuit Court for Washington County Case No C-21-CR-18-000051

Graeff, Ripken, Alpert, Paul E. (Senior Judge, Specially Assigned) JJ.

OPINION ^[*]

Ripken, J.

A jury in the Circuit Court for Washington County convicted DeVaughn^[1] Drew ("Drew") of murder in the second degree of Destiny Boccone ("Boccone"). The court sentenced Drew to forty years in prison, and Drew noted a timely appeal of his conviction. On appeal, Drew argues that the court erred in giving a supplemental jury instruction on accomplice liability. For the reasons to follow, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 11:05 p.m. on November 19, 2017, police responded to a report that a car collided with a tree on Dogwood Drive in Hagerstown, Maryland. The police found Boccone in the driver's seat with two gunshot wounds to the back of her head. Boccone was determined to be deceased at the scene, and the gunshot wounds were subsequently determined to be the cause of her death.

The police spoke with two residents of Dogwood Drive who heard the car collide with the tree. One witness, the 911 caller saw two men get out of the car and run away. The other witness observed two individuals leaving the scene and identified them as males because he heard them each speaking "in a low tone of voice." The police obtained the home security camera footage from residences one block from the crime scene that captured two individuals running down the street. The police also learned that, shortly after Boccone's car collided with the tree, a cab picked up two individuals near the crime scene and they were driven to 322 West Howard Street, Hagerstown.

Based on the information from the witnesses and the cab company, officers were dispatched to 322 West Howard Street, where police subsequently arrested Donovan Watts ("Watts"). Watts was then transported to the sheriff's office for an interview. Following the arrest, officers searched the apartment^[2] and found a striped jacket and a green baseball hat, both of which had stains of blood on them. A tenant of the apartment told police that Watts and, a man whom she identified as Drew, ^[3] arrived at the apartment shortly before the police and that Drew ran out the backdoor of the apartment when the police arrived.

During an interview with police, Watts informed detectives that Boccone picked him and Drew up in her car earlier that evening and that Boccone drove them to a Sheetz on Virginia Avenue, Hagerstown. Police obtained the Sheetz parking lot video surveillance that showed Boccone's car being driven into the parking lot at approximately 10:39 p.m. The video showed Boccone and Watts exit the front driver and front passenger seats, respectively, and enter the store; it also depicted a person, whose arm is out the car window, seated in the driver's side rear passenger seat. At approximately 10:44 p.m., the video showed Boccone and Watts get back into their respective seats in the car and drive out of the Sheetz parking lot. During the interview, Watts maintained that he did not shoot Boccone and that Drew was in the car when Boccone was shot.

Based on this information, the police obtained an arrest warrant for Drew, and, on December 5, 2019, Drew turned himself in and gave a statement to the police. Drew stated that he went to the Sheetz with Boccone and Watts and that he was seated in the rear driver's side passenger seat when the car arrived at Sheetz and after the car was driven out of the parking lot. After leaving the Sheetz, Drew stated that he switched seats with Watts and exited the car shortly after switching seats. Per Drew, Boccone and Watts dropped him at 322 West Howard Street and drove away. Drew maintained that he was sleeping in the apartment at 322 West Howard when Watts came into the bedroom in a panicked state.

In October 2019, Drew was tried for the murder of Boccone and for related handgun offenses.^[4] The State's evidence included the testimony of the two witnesses that observed two men running away from Boccone's car; the security camera footage of two individuals running, one block from the scene; the testimony of the cab company employees that confirmed a cab picked up two individuals near the scene; DNA evidence of Boccone's blood in the backseat of that cab; the Sheetz parking lot video surveillance that portrayed Boccone, Watts, and a person in the rear passenger seat of Boccone's car; and Drew's statement to police.

In addition, at trial, Watts testified that that he was wearing the striped jacket, seen in the Sheetz video, when he was at the Sheetz; that Drew was in the car at the Sheetz; and that Drew was in the rear passenger seat when Boccone was shot. Watts testified that he did not shoot Boccone and that he did not know how or why she was shot because the radio in the car was extremely loud and he was texting on his phone. Watts testified that he heard "a loud pop," that he and Drew exited the car and started running when Boccone drove into the tree, and that he and Drew got into a cab and were driven to 322 West Howard Street.

The State called forensic scientist Jessica Shaffer ("Shaffer"), who testified that a rear passenger exited the vehicle after Boccone was shot because the front passenger seat of the two-door car was leaning forward and the corner of its backrest had a transferred stain of Boccone's blood. Shaffer opined that the rear passenger likely shot Boccone while she was sitting facing forward due to the bloodstain patterns in the car and on Boccone's clothing; the bullets' angle of impact; and the bullets' straight-line trajectory.

The State also presented evidence that the blood sample from Watts's striped jacket matched Boccone's DNA and that the blood sample from the green hat had a major female contributor, determined to be Boccone, and a male contributor, who could not be identified. In addition, the State tested a DNA sample from inside the green hat. A forensic scientist testified that Drew could not be excluded as a significant contributor to the DNA sample from inside the hat and that the probability was 1 in 24 quintillion that a randomly selected individual from the African American population would match the profile of that sample.

The State also called an expert in cell phone data extraction to testify to the contents of Drew's cell phone.^[5] Specifically, the expert testified to text messages that were sent from Drew's phone to Watt's phone on November 19. In particular, one text was sent to Watts's phone at approximately 10:36 p.m., shortly before Boccone's death, which read, "Tell her you gotta put something else in the trunk."

Witnesses for Drew testified that Drew and Watts were leaving the residence of Drew's daughter's home at the time of Boccone's death. One witness testified that Watts was carrying a gun a few hours before Boccone's death. Another witness for Drew testified that she was at the 322 West Howard Street apartment complex on the night of Boccone's murder, that she saw a man jumping over a fence when the police arrived, and that Drew was not that man.

At the close of evidence, the court gave oral instructions to the jury, which did not include an instruction on accomplice liability. Neither party objected to any of the instructions nor did either party request any additional instructions. Each party presented closing arguments. After the jury began deliberating, the court received a note from a juror, which asked in pertinent part:^[6] "Does the defendant have to be found guilty of pulling the trigger in order to be guilty of second degree murder?" The court responded to the question by re-instructing the jury with the second-degree murder instruction that had previously been given. The jury continued deliberations, not reaching a verdict by the end of the day.

When the jury reconvened, the court received a note from the jury foreperson that asked a similar question posed in the prior note: "If the Defendant was not the shooter, can he still be found guilty of first or second degree murder[?]" The court discussed its response to this question with the parties as follows:

THE COURT: So at this point, it would appear, I mean we can infer that someone, at least one juror, if not more, may have thought that both the persons in the car were involved in some way, and they're not sure who shot or they believe Watts was the shooter and Mr. Drew was helping him. So the question is, do I read the accomplice liability instruction which the Court believes is appropriate. It's a statement of law, even though the State's theory was he was principal in the first, it's up to the jury to decide.

[DEFENSE COUNSEL]: No, no, no. This is, as I said from the outset, it seems to me that this is, because of the way it was charged, it's an all or nothing case. Um, if he's the shooter, he goes down for all of it. If he's not, he goes down for none of it.

THE COURT: Let me ask you this, what in the charging document would preclude accomplice liability from coming into it? You don't have to charge a co-conspirator.

[DEFENSE COUNSEL]: Because they have to show intent I think to-to- There's nothing-

THE COURT: I mean the charging statement doesn't change.

[DEFENSE COUNSEL]: There's-There's no-If Watts is the shooter, then they have to infer, guess, that he's a knowing and (inaudible).

THE COURT: No I mean, the Court could find that the text exchange that occurred right before the shooting, there is, I mean there is some evidence on the record from which a-a trier-of-fact could theorize that they are in cahoots together at the time of the shooting.

[DEFENSE COUNSEL]: That's not-That's not the State's theory. The

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