Fontaine v. State

• Decision Date: 28 September 2000
• Docket Number: No. 1604,1604
• Citation: 759 A.2d 1136,134 Md. App. 275
• Parties: James Mckinley FONTAINE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

759 A.2d 1136

134 Md. App. 275

James Mckinley FONTAINE v. STATE of Maryland.

No. 1604, Sept. Term, 1999.

Court of Special Appeals of Maryland.

September 28, 2000.

Bradford C. Peabody, Asst. Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Devy Patterson Russell, Asst. Atty. General (J. Joseph Curran, Jr., Atty. General, Baltimore and David R. Ruark, State's Atty., for Wicomico County of Salisbury, on the brief), for appellee.

Submitted before MOYLAN, KENNEY, ROBERT F. FISCHER (Ret'd, specially assigned), JJ. KENNEY, Judge.

Appellant, James McKinley Fontaine, was convicted by a jury in the Circuit Court for Wicomico County of second degree murder. He was sentenced to a twenty-five year term, to run consecutive to the five-year term imposed for a handgun conviction at his previous trial.¹ Appellant presents one question, which we have separated into two:

I. Did the trial court err in refusing to allow defense counsel to admit extrinsic evidence of a prior inconsistent statement by a State's witness who had been excused the previous day?

II. Did the trial court err in refusing to grant a continuance to allow defense counsel to subpoena the witness to testify again?

Perceiving no error, we affirm the judgment of the circuit court.

FACTS

On the night of April 18, 1994, appellant and his stepson, Keith Long, got into an argument over telephone calls made by Long on appellant's telephone. The argument ended in the fatal shooting of Long.

At the time of the shooting, appellant was married to Patricia Winder. She and her daughter (Long's sister), Keisha Long Mitchell, lived with appellant at 1117 West Road in Salisbury. Long was Winder's son from a previous marriage, and, while he did not live with Winder and appellant on a permanent basis, he stayed with them off and on. At the time of his death, Long had no fixed address.

When Long came to the Fontaine home that night, his sister was taking a bath, appellant was in the living room watching television, and his mother was in a bedroom. Long entered the house, went into the bedroom, and asked Winder whether he had received any telephone calls. She advised him that he had not because appellant had disconnected the telephone. Long took some of his clothes from the house and put them into his car. When he returned to the house, he told his mother that he would see her at some point in the future and that he was going to talk to appellant about the telephone before he left.

According to Winder and Mitchell, Long walked into the living room where appellant was sitting on the couch and asked him why he disconnected the telephone. Long then told appellant to stop blaming his mother and sister for something that he had done. Appellant responded that Long could "blame his mammy for hiding the telephone bill." Long responded that he had a "mom" and not a "mammy." Appellant then came around the couch, grabbed Long around the neck, and the two men "tussled."

Long pinned appellant to the floor and asked: "Why did you grab me, all I wanted to do was talk to you." Long then got up and went into the kitchen while appellant got up off the floor and headed to the bedroom. Winder told Long to leave because she knew appellant was going to get the gun that he kept in the bedroom. Mitchell then ran outside to a neighbor's to call 911.

Lemont Antonio Whittington testified that, at the time of the argument, he was next door visiting his mother. He heard arguing and went outside to determine what was going on.

Winder, Mitchell, and Whittington testified generally that they saw appellant come down the steps and shoot Long several times. Appellant then pulled Long out of the car, kicked him, and shot him once more. Both Winder and Mitchell heard appellant say something along the lines of "don't be beating me up in my own house." Appellant then pointed the gun at Winder and threatened to kill her. Whittington also heard these threats.

According to appellant, Long walked into the living room, stood behind him, and told him he was sick and tired of the telephone being turned off and that he would teach appellant not to do it again. Long then attacked appellant, threw him on the ground, began choking him, and threatened to kill him. Appellant yelled for Winder and Mitchell to help him, and Winder finally told Long to stop because appellant had a gun. Long said he did not care because he had a gun in the car.

Appellant went to his bedroom and retrieved his .32 caliber H & R six shot revolver while Long was getting into his car. After he reached the front door, appellant said he saw something in Long's hand, although Winder denied that Long was holding anything. After Long started the car, appellant came onto the front porch and fired a shot that went through the windshield. The car lurched into the bushes.

Appellant admitted that he fired four or five shots at Long. He also admitted to pulling Long out of the car, but he indicated that he merely laid him on the sidewalk. Appellant stated that he was very scared, and that he believed Long to be intoxicated and capable of "doing anything." Appellant said that he did not see Whittington until after the shooting, when Winder went over to Whittington's mother's house and Whittington came out and asked what was wrong.

Keith Long died as a result of the gunshot wounds. An autopsy revealed that he had been shot five times. The autopsy also revealed that Long had alcohol present in his blood, urine, and the vitreous humor of his eye. According to Dr. John Smialek, the Chief Medical Examiner for the State of Maryland, the amount of alcohol in Long's body would have had a depressant effect on him. The autopsy also revealed that cocaine was present in Long's urine but not his blood. According to Dr. Smialek, this signified that the cocaine was "no longer having any chemical intoxicating effect on his body."

The police investigation revealed two bullets entered the windshield of Long's car. One of the bullets had lodged in the dashboard of the car. The driver's side window was shattered. A knife with a three-inch blade was found on the front seat of the car.

Appellant also introduced a stipulation that Dr. Nicholas Scotto, if called as a witness, would testify that he examined appellant on April 27, 1994, and that appellant had contusions on his head and contusions and minor lacerations around his neck and right hand.

The jury found appellant guilty of second degree murder.

DISCUSSION

At the heart of this appeal is the apparent inconsistency between Whittington's testimony at trial and a statement that he gave to Sergeant David Briscoe during the investigation of the shooting. Appellant argues that the trial court erred when it refused to allow him to introduce evidence of Whittington's prior inconsistent statement by either allowing Sergeant Briscoe to "testify that on April 18 th he did interview Whittington and this is what [Whittington] said to him," or by granting a continuance so that Whittington could be located.

At this point we will set out parts of Whittington's statement to Sergeant Briscoe, read into the record as part of appellant's proffer,² and then summarize his testimony at both trials.

Answer: We [Whittington and his mother] were just sitting here. She had just brought me dinner actually and she said she heard, she said what is this? I said it sounds like shots and I really didn't pay much attention to it. I have heard it before.

And approximately ten to fifteen seconds after that a knock at the door, at the back door of the house. I peeked out the blind, a lady standing there banging on the door. So I assumed something had happened since hearing the shots. I just put two and two together, didn't open the door though. Ran into the front of the house, looked through the blinds in the front of the house and seen the commotion was going on.

A few seconds later we decided to open the door in the front of the house and see what exactly was going on about that time. A gentleman about five eight, five nine, probably two fifteen to two twenty, stout heavy set guy walking around with a gun in his hand, probably with about a three maybe four and a half inch barrel on it. From the sounds of the shots, it sounded like it was medium caliber to me, sounded like it was a .32,.38, .22 maybe.

Looked at the car the victim was in, a white car. He was mumbling words, but I couldn't distinguish them because everything was so hectic. I couldn't understand what he was actually trying to say. That I understand that he said something about an argument or a fight had happened. I heard that much.

At this time I came back in and I seen two women they were just running around frantically not knowing what to do whatever, so at that time I just dialed 911 and asked for the police and ambulance. That's when they arrived and that's about all I know.

* * *

Question: I mean does he [the heavy set guy with the gun] live at that house?

Answer: I can't say that he lives there. I seen him there quite a few times but I don't know if he lives there or not, because I don't know the people that well. I don't get out and go over and speak with them or anything, you know. If we see each other we say, hi, how are you doing? So I assumed he lived there.

Question: Okay, did you say he said anything? Did you hear him say anything?

Answer: I heard him say something about a fight. I also heard something about self-defense, that is self-defense or something of that nature, that's all I can recall right now.

Question: Okay. And you said the person was mumbling, was that the person inside the car?

Answer: No, that wasn't the victim.

* * *

Question: Okay. Do you have anything else you want to add to this statement?

Answer: Um, from this point on I never known to ever be a problem between them. I mean, they seemed like the ideal family. I have seen them out working, cleaning the cars, cutting the grass, I've never seen

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