Elliott v. State

• Decision Date: 01 June 2009
• Docket Number: No. 1963 September Term, 2007.,1963 September Term, 2007.
• Citation: 972 A.2d 354,185 Md. App. 692
• Parties: Andre Jerome ELLIOTT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

972 A.2d 354

185 Md. App. 692

Andre Jerome ELLIOTT v. STATE of Maryland.

No. 1963 September Term, 2007.

Court of Special Appeals of Maryland.

June 1, 2009.

Robert M. Cary and Katherine M. Turner (David M. Zinn, Williams & Connolly, LLP, on the brief), Washington, DC; (Public Defender Specially Assigned, Nancy S. Forster, on brief) Baltimore, for appellant.

Jessica V. Carter (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.

Panel: HOLLANDER, ZARNOCH and MATRICCIANI, JJ.

HOLLANDER, Judge.

Kellie McCullough, the estranged wife of Andre Jerome Elliott, appellant, suffered multiple stab wounds when she was attacked by appellant on February 5, 2006. Mr. Elliott was subsequently indicted on a variety of charges, including attempted first-degree murder of Ms. McCullough. Following a jury trial in the Circuit Court for Montgomery County in July 2007, appellant was convicted of attempted second-degree murder, in violation of Md.Code (2002, 2006 Supp.), § 2-206 of the Criminal Law Article ("C.L."); first-degree burglary, in violation of C.L. § 6-202; and first-degree assault, in violation of C.L. § 3-202. The court sentenced appellant to a total term of fifty years' incarceration.¹

This appeal followed. Appellant poses four questions,² which we quote:

1. Did the trial court err in empaneling the jury after the State admitted that it had exercised peremptory challenges on the impermissible basis of gender?

2. Did the trial court err in refusing to continue the trial to remedy the prejudice arising from the State's last-minute and incomplete production of evidence required to be disclosed under Maryland Rule 4-263(b)?

3. Did the trial court err in refusing to dismiss the indictment or afford other relief to remedy the State's bad-faith failure to preserve evidence?

4. Did the trial court err in refusing to clarify the jury's confusion about the intent requirement of attempted murder?

For the reasons set forth below, we conclude that the State improperly exercised its peremptory challenges. Therefore, we shall vacate the judgment and remand for a new trial. Accordingly, we decline to address Questions Two and Four, as they are not likely to recur. For the benefit of the parties and the court, however, we shall address the third question.

FACTUAL AND PROCEDURAL BACKGROUND³

Elliott and McCullough were married in August 2004. In June 2005, after the parties had already separated, McCullough purchased a house in Germantown. About "two or three months" later, McCullough told Elliott that he could "stay" at her house until he could "get [him]self together." He later refused to leave. Accordingly, on January 3, 2006, McCullough gave Elliott thirty days' notice to vacate her house. On January 27, she obtained a temporary protective order against Elliott because he was volatile, abusive, and had threatened to kill her. She obtained a final protective order on February 3, 2006.

At around 7:17 a.m. on Sunday, February 5, 2006, Elliott left a voice message for McCullough, stating that he needed to talk to her. McCullough testified that she "got out of the bed" at around 8 a.m. that morning. She soon heard banging coming from downstairs; "immediately" she "knew" it was Elliott. She retreated to the bathroom, but Elliott "kicked through the door" and started stabbing her. McCullough screamed, hoping the neighbors would hear her. With her hand, she tried to block the knife. Nevertheless, Elliott stabbed her hand and then stabbed her wrist, where the knife was stuck until Elliott yanked it free. Elliott also stabbed McCullough in the chest. Blood was everywhere.⁴

McCullough testified that when she "woke up" the knife was still in her chest. She pulled it out and slid to the bottom of the stairs, where she was able to reach her cell phone. She called 911, and told the dispatcher she had been stabbed. But, McCullough did not recall whether she mentioned that it was her husband who had stabbed her. She lay on the floor, which was covered in glass, and was in and out of consciousness. When the police arrived, McCullough identified Elliott as the person who had stabbed her. She also indicated that he had been wearing a blue or black crew neck shirt, a coat, boots, and "a New York hat."

The prosecutor asked: "Who is the person who did this to you?" McCullough responded: "Andre Elliott." She also identified the knife used during the attack and a New York Yankees hat recovered from appellant's car.

On cross-examination, McCullough confirmed that "[t]here was a diary that was in [her] apartment that was taken ... [a]nd sometime after the incident ... given back." She also agreed that she received "a copy or copies of the diary" from Detective Ana Erazo, and was not instructed to preserve the material. McCullough subsequently "discarded the diary" and "shredded the copies. ..." Defense counsel did not ask about the contents of the diary.⁵

Shortly after 8 a.m. on February 5, 2006, Patrol Officer John Chucoski responded to McCullough's 911 call. The front door of the house was locked, but some of the windows were shattered. The police found McCullough "lying in a pool of blood. There was large amounts of blood on her, on the ground below her and coming down the stairs and on the walls." Officer Chucoski noted that there was also blood in the bedroom, where a knife was found on the floor. He described McCullough as upset and in pain. Another officer asked McCullough who assaulted her, and she responded that "it was her husband, Andre Elliott."

Forensic Specialist Collette Sarns-Gaunt of the Montgomery County Police Department Forensic Services Section collected evidence from the house, including a kitchen knife, approximately eight inches long, found in the master bedroom, and "a diary or a journal located ... next to the bed .... in the master bedroom." Sarns-Gaunt testified that she took the diary because "diaries usually speak to the person's state of mind." Moreover, she explained that she believed she "had arrived on what was going to become a homicide," and "felt that [the diary] was important if the victim did not survive." She read parts of the diary and gave a copy of it to the lead investigator, Detective Erazo. Sarns-Gaunt also collected "a bathrobe with suspected blood," as well as swabs of blood from the inside of the front door and where the victim lay just inside the front door. She explained that she "swab[s] blood mostly because blood is not usually present, so it seems out of place. ..."

Ms. Sarns-Gaunt also assisted in searching Elliott's car. Among other items, the police seized a New York Yankees hat.

Detective Kenneth Halter testified about the message left on Ms. McCullough's voice mail at 7:17 a.m. on February 5, 2006. He claimed he was familiar with Elliott's voice, and identified the voice on the message as Elliott's. After the attack, he played the message for Ms. McCullough; she identified Elliott's voice.

Forensic Specialist Kimberly Clements testified that the knife found in the victim's bedroom was examined for fingerprints; no latent prints of value were found. Forensic Biologist Erin Farr testified that the DNA profiles from the knife blade and the handle matched McCullough's DNA, not Elliott's DNA. She explained that the DNA from the blood on the knife could "mask or overpower ... the DNA from something of a lesser amount," i.e., the testing would only detect the DNA from the blood without detecting "some other kind of DNA."

After the State rested, appellant moved "for a judgment of acquittal on the first degree attempted murder charge" and "second degree, lesser included attempted murder." He alleged that the evidence of premeditation and specific intent to kill was insufficient for those charges, and submitted as to the other counts. The court denied the motion.

Appellant called Detective Ana Erazo, who worked for the Montgomery County Police Department's Family Crimes Division and was the lead detective on the case. She stated that the blood on the diary was not tested for Elliott's DNA. Detective Erazo received two copies of the diary from Ms. Sarns-Gaunt, but she did not read the diary.

Once the decision was made to return the diary to McCullough, Detective Erazo retrieved the original and returned it to the victim on March 6, 2006. Erazo returned the copies to McCullough on April 27, 2006. Detective Erazo did not direct Ms. McCullough to preserve either the diary or the copies. She testified that her understanding of the significance of the diary was that it may have been useful if Ms. McCullough had not survived; because she survived, the diary was no longer needed.

The following colloquy is relevant:

[APPELLANT'S COUNSEL]: And in investigations in the Family Crime[s] Division do you sometimes obtain copies of or originals of victim diaries?

[ERAZO]: No.

* * *

[APPELLANT'S COUNSEL]: Are you aware whether there's a standard practice in the Family Crimes Division as to what to do when you do obtain a copy of a victim diary?

[ERAZO]: No. ... We don't ... have that I'm aware of in my unit within the Family Crimes. You've got to understand the Family Crimes has several different sections. And they're all very different crimes.

Erazo testified that she did not discuss the diary with McCullough. Although the diary "came up during one of the meetings that we had within my division with the State's Attorney's Office," no one informed her of its contents. And, as noted, Erazo claimed that she "didn't read it."

On cross-examination, the prosecutor asked Erazo about her "understanding of the significance of the journal." The detective replied: "We thought the victim was going to die and that would've been a good piece of evidence to have." She maintained that the State returned the diary "[b]ecause the victim ... survived." The following exchange is relevant:

[PROSECUTOR]: [Y]ou need to investigate a case with a mind towards the State prosecuting its case if...