Finch v. State

• Decision Date: 06 February 2023
• Docket Number: 1291-2021
• Parties: DAOIN FINCH v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

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DAOIN FINCH v. STATE OF MARYLAND

No. 1291-2021

Court of Special Appeals of Maryland ^[**]

February 6, 2023

Circuit Court for Baltimore City Case Nos. 119228002 119246020

Arthur, Reed, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

REED J.

This appeal involves allegations of attempted murder and conspiracy between three individuals-Antwain Partlow ("Partlow"), Matthew Talley ("Talley"), and Daoin Finch, appellant- that spanned two adjacent jurisdictions, Baltimore County and Baltimore City, and which resulted in criminal charges being filed in both jurisdictions. Appellant was charged, in the Circuit Court for Baltimore County, with two counts of conspiracy to commit first-degree murder and two counts of conspiracy to commit first-degree assault. A jury in the Circuit Court for Baltimore County acquitted him of those charges.

Thereafter, Finch was charged, in the Circuit Court for Baltimore City, with two counts of attempted first-degree murder, two counts of attempted second-degree murder, two counts of first-degree assault, and various handgun violations. He moved to dismiss on the ground of double jeopardy and collateral estoppel, relying upon the acquittals in Baltimore County. The Circuit Court for Baltimore City denied that motion in relevant part,^[1] and this interlocutory appeal ensued.^[2] For the reasons that follow, we affirm and remand for further proceedings.

BACKGROUND

The Alleged Crimes

Clarence Fossett and Devin Ennis worked as security guards at a McDonald's restaurant near the intersection of McClean Boulevard and Perring Parkway, in Baltimore County, just outside Baltimore City. According to Fossett, he and Ennis regularly^[3] had problems with persons who loitered in the parking lot, selling drugs and creating "a lot of commotion[.]" "[W]henever they were told to move," they simply went across the street to a nearby Exxon station and resumed their activities. Nor did it help to notify the police; according to Fossett, when he did so "[s]ometimes" the police "would run them off and then 20 minutes later, they would come back."

On March 29, 2018, Ennis gave Fossett a ride to work, and the pair arrived "around like 4:12-ish."^[4] When they arrived, they observed Antwain Partlow (whom they knew as a regular among the loiterers who sold drugs near the McDonald's "and about five or six other people gathered around the back of the McDonald's." As Ennis and Fossett "pulled up, Devin [Ennis] said something to Timmy."^[5] According to Fossett, Ennis declared, "these bitch ass n-----s are out here right now. Why are they still here?" Partlow, apparently, either overheard the comment or read Ennis's lips, but, in any event, he "approached" Ennis's car, stating, according to Fossett, "What did you say to us?"

By then, Fossett had stepped out of Ennis's car and began "ushering" the loiterers away, stating, "It's time to go." According to Fossett, Partlow replied with a threat: "When you come back to pick up your partner, we are going to be here waiting for you[.]" At that time, Partlow's threat seemed unremarkable to Fossett, who noted that "they always threaten[ed] us" and thus, he and Ennis regarded Partlow's threat as "a normal every day thing."

When Fossett and Ennis finished their shift, shortly after 10:00 p.m. that evening, they prepared to leave in Ennis's car. As Fossett walked towards Ennis's waiting car, he noticed a white Honda, with a black bumper, driven by a man he "believe[d]" was Finch,^[6]just behind Ennis's car. At that moment, Partlow (a passenger in Finch's car) stepped out and approached Fossett, asking, "Where your partner at?" Ennis overheard Partlow, lowered the window of his car, and asked him, "What are y'all here for? Are y'all ready to fight?" Partlow replied, "no, we are not here to fight," and, at the same time, Finch stepped out of his car and appeared to Fossett to have a concealed handgun in the right pocket of the hoodie he was wearing.

Fossett drew his weapon and ordered Finch to "take his hand out of his hoodie." At first, Finch refused to comply, but after Fossett "chambered a round," Finch "stopped." Everyone returned to their vehicles, and Ennis and Fossett drove off, followed by Finch and another, "newer" Honda, which Fossett previously had not observed.

Ennis stopped near the intersection of McClean Boulevard and Perring Parkway^[7]when he noticed that he was being followed. After Ennis stopped his car, the other two Hondas drove approximately "50 yards up the road" and "blocked" it. As Ennis attempted to drive past them, the occupants "start[ed] jumping out of the cars." The only person Fossett could identify for certain as stepping out of either car was Partlow.

As soon as Ennis drove past them, according to Fossett, "they started opening fire on [Ennis's] car." As soon as Fossett "heard their gunfire," he "reached out of the window and returned fire." In total, Fossett estimated that Ennis's car was fired upon "[p]robably 8 to 13" times.

Ennis drove south on Perring Parkway into Baltimore City, followed by the two white Hondas, exchanging gunfire with them as they drove. Fossett sustained a gunshot wound in his left arm, and he then began firing his weapon through the back window of Ennis's car, "[s]hooting at the headlights at the other cars chasing" them and "clear[ing] the rest of the magazine," that is, firing seven additional shots. Although Fossett was unsure whether he struck either vehicle with his gunfire, he surmised that he may have, "because they pulled over right before Maravia."^[8]

Ennis and Fossett then "proceeded to go to the nearest police station and tell them what happened."^[9] Fossett informed the police that he was armed, and he surrendered his weapon to them. He was treated at Johns Hopkins Bayview Hospital for a "through and through" gunshot wound to his left arm. During a subsequent interview with a police detective, Fossett identified Finch, Partlow, and a man he knew as "Ant" from photographic arrays. A police detective later identified "Ant" as Anthony Ferguson, who Fossett believed was driving the newer white Honda.^[10]

Baltimore City police further determined that the first volley of gunfire took place "approximately 425 feet into Baltimore City." According to a police detective, the "second grouping of shell casings were located approximately 191 feet away from that first grouping of shell casings also into Baltimore City."

Finch was arrested, and a search warrant was issued for his home. When the arrest warrant was executed, Partlow was with Finch. The search of Finch's home yielded "[c]ell phones and numerous jars of CDS," which was determined to be cannabis. Data extracted from Finch's iPhone included photographs depicting him, Partlow, and Talley, several of which were taken in front of the McDonald's.

Charges in Baltimore County

In April 2018, a seventeen-count indictment was returned, by the Grand Jury for Baltimore County, charging Finch with multiple counts of attempted first-degree murder, first-degree assault, conspiracy to commit both of those offenses, and related weapons charges. Similar, albeit not identical indictments were returned against Talley and Partlow. The State moved for a joint trial, and the Circuit Court for Baltimore County granted that motion. Shortly before trial, two of the defendants filed motions alleging improper venue as to all charges except conspiracy. On the first day of trial, prior to voir dire, the State conceded on that issue, and all the indictments were amended to just four counts as to each defendant: conspiracy to commit first-degree murder of Fossett, conspiracy to commit first-degree murder of Ennis, conspiracy to commit first-degree assault of Fossett, and conspiracy to commit first-degree assault of Ennis.^[11] The matter proceeded to a jury trial on just the conspiracy charges.

In her opening statement, the prosecutor addressed the jury:

You are going to hear about a terrifying night. You are going to hear from Clarence Fossett, 27 years old. March 29th of 2018, he worked on security at the McDonald's on McClean Boulevard. Directly across the street from that McDonald's is an Exxon on McClean Boulevard.

Mr. Fossett is going to tell you that while he worked there there was a persistent and constant problem with individuals at the Exxon and the McDonald's selling drugs and late loitering. And it was for that purpose that he was there at the Exxon armed security.

He worked with a friend Devin Ennis. They were both security. They switched off different locations of McDonald's where they worked, but they often car pooled together.

Mr. Fossett is going to tell you that he had multiple confrontations and run-ins with the Defendants Finch and Partlow. He's going to tell you that when he and Devin Ennis arrived at work on the 29th, it was between 4:12, 4:15 in the afternoon.

They pull up in Mr. Ennis' gray Honda Toyota -- Honda. Gray Honda. Sorry. Mr. Fossett is going to tell you that when Mr. Ennis saw a group of between five, six, seven individuals, particularly Mr. Partlow, that they had run-ins with, Mr. Ennis said something like, oh, these raggedy -- and I'm sorry -- [n-----s] are here again.^[12]

He said it just to Mr. Fossett. He didn't say it in a loud voice that it's believed that Partlow overheard it. At this point, Partlow approaches them. He's angry. A confrontation begins with words and words only at this point.

Mr. Fossett is going to tell you that he said, This is over. Leave. We are coming on shift, leave. And that Mr. Partlow said, we will be back. Mr. Ennis leaves. He goes and works at his location. Mr. Fossett stays. He works the entire rest of his shift until 10.

Mr. Ennis returns to pick him up. Mr. Fossett went

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