French v. Bishop
| Decision Date | 27 March 2020 |
| Docket Number | Civil Action No. RDB-18-879 |
| Parties | MARK FRENCH Petitioner v. FRANK B. BISHOP, JR. and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents |
| Court | U.S. District Court — District of Maryland |
Petitioner Mark French filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for attempted first degree murder, robbery, and two counts of use of a handgun in a felony from the Circuit Court for Baltimore County, Maryland. ECF 1 at 1. Respondents filed an Answer asserting that the one claim raised by French does not merit federal habeas relief because the claim concerns a matter of State law only and any constitutional claim implied by the petition has been waived. ECF 4 at 29. French filed a Reply disputing Respondents' assertion. ECF 20.
No hearing is necessary to resolve the matters pending before this Court. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F. 3d 438, 455 (4th Cir. 2000) (). For the reasons stated below, the Petition for Writ of Habeas Corpus shall be denied and a certificate of appealability shall not issue.
French was tried by a jury in the Circuit Court for Baltimore County in connection with the October 31, 19931 armed robbery of Brian Sherry and the shooting of police officer James Beck. Evidence produced at trial through the testimony of Brian Sherry established that he was robbed after a woman in a pick-up truck that was following him down Pulaski Highway pointed a gun out of the window and demanded he turn down Chesaco Avenue. ECF 4-2 at 167. When Mr. Sherry stopped his car in a church parking lot the woman, who he later identified as Heather Kendall, came up to his car and demanded his wallet, but Mr. Sherry refused. Id. at 169-70. Another car pulled in behind them and the other driver ran to the side of Mr. Sherry's car, stuck a black automatic pistol through the window and demanded that Mr. Sherry do what Ms. Kendall told him to do. Id. at 170-71. Mr. Sherry gave Ms. Kendall his wallet which contained $43; Ms. Kendall took the money, returned the wallet, and fled the scene along with her accomplice. Id. at 172. Mr. Sherry described the pick-up truck that Ms. Kendall and her accomplice drove and explained he later saw the same truck at a Royal Farm store. Id. at 174.
Baltimore County Police Officer James Beck was shot later that same evening. Officer Beck was in a patrol car in the area of Pulaski Highway and was accompanied by a ride-along student, Sandra Lowery, who witnessed the shooting and testified for the State. ECF 4-2 at 181-201. Ms. Lowery explained that there was a call on the radio to be on the lookout for a brown Ford truck with wooden racks. Id. at 184. Ms. Lowery and Officer Beck saw a truck fitting thatdescription during their travel on Pulaski Highway and saw two people inside the truck. Id. at 185-6. Officer Beck followed the truck, turned on the overhead lights, and the truck pulled over immediately. The driver of the truck, later identified as Mark French, rolled down his window and the passenger, Heather Kendall, did not move. Id. at 186. Beck approached the truck with his right hand on his gun; when he got slightly ahead of the front of his car, the driver of the truck spun his right arm and part of his head out of the window and began firing the gun. Id. 187; 205.
Officer Beck testified that he saw the muzzle flash from the first shot and felt pain in his left shoulder, causing him to stagger backward. ECF 4-2 at 205. He felt a second pain in his chest area and began to try to get between the two vehicles. Id. He could not recall the third shot, but said he later found out it hit him in the chest and caused him to fall to the ground between the two vehicles. Id. Officer Beck recalled hearing the tires squealing as the pick-up truck raced off; hearing voices around him reassuring him; and the sound of a helicopter landing, but could not remember anything else until a month and a half later. Id. at 207. He testified that he was hospitalized in Shock Trauma for two and a half months and then hospitalized at "Good Sam" for therapy to treat nerve damage to his arm and legs which he stated is permanent.2 Id. at 208. Officer Beck also testified that the medications he received in the hospital worked on his central nervous system which caused the messages relayed from his ears to his brain to no longer work, leaving him with progressive hearing loss. Id.
Detective Michael Peregoy investigated the armed robbery of Mr. Sherry as well as the shooting of Officer Beck and testified for the State at trial. ECF 4-3 at 3-34. Detective Peregoy recovered 9 mm spent cartridges from the scene as well as bullet fragments recovered from Officer Beck's body that were provided to him by a nurse at Shock Trauma. Id. at 14; 16-18. The police department elicited help from the public in identifying and locating the suspects involved in the shooting. Id. at 14. To assist in identifying the perpetrators, a forensic sketch artist worked with Brian Sherry to draw a composite sketch of the female who robbed him. Id. The Ford truck was recovered from the backyard of Lisa Morton's home. Id. at 19. Business cards with Mark French's name on them were found inside the truck. Id. at 23. After defense counsel cross-examined Detective Peregoy regarding the number of trucks that were called in matching that description and suggesting that not enough was done to develop more suspects (id. at 27-33), Detective Peregoy explained that all trucks reported as fitting the description and possible persons responsible were ruled out. Id. at 33-34.
Lisa Morton testified that Mark French came to her house on October 31, 1993, the day after the shooting at approximately 11 a.m., and told her he had taken $1600 for a roofing job he had not done and came across the guy who paid him which resulted in a shoot-out. ECF 4-3 at 57. She further testified that French had three guns with him: a .9mm Glock, a .38, and a .22. Id. at 59. French was holding the .9mm Glock in his hand and told Ms. Morton that it was dirty because he used it in the shoot-out. Id. at 60. Later in the evening, the news came on with a story about the shooting featuring the composite sketch and describing a white male involved in a police shooting; French was in the kitchen and came into living room to hear the news, he asked them to turn up the volume. Id. at 62. French said the sketch looked like Heather; Ms. Morton responded: "don't tell me that you shot the police." French told Ms. Morton that "it was either me or him."Id. at 63. French then told Ms. Morton about going to Pulaski Highway for Heather to pick up a "John" so they could rob him. Id. French said the "John" called the police and before they could get away, the police had come up to the truck and French shot the police officer with the .9 mm Glock. Id. at 64. The following morning, Ms. Morton went to University Hospital and spoke with the police officers3 who were with Officer Beck to report what French had told her and to tell them his truck was in her backyard. Id. at 67-68.
A tactical response team from the Baltimore City Police performed a raid on Lisa Morton's house on November 1, 1993, with the objective of locating the alleged suspect in Officer Beck's shooting and arresting him. ECF 4-3 at 98-108. The tactical team entered the house with a battering ram and found a white male, later identified as Mark French, in the kitchen. Id. at 99-100. French was taken to the floor, handcuffed, and taken into custody. Id. at 101. In addition, Heather Kendall was found in the same house. Id. at 108. After French was handcuffed, he was searched and .9 mm bullets were found in his left front pocket. Id. at 111-12. In addition, a black .9 mm Glock was recovered from a dish drainer on the side of the kitchen sink. Id, at 116.
Additional evidence connecting Mark French to the crime was introduced through the testimony of Detective Walter Clipper of the Baltimore County Police; Jonathan Murphy for whom French worked; and William ("Bill") Martin, French's coworker. A burglary had occurred at the home of Jonathan and Dawn Murphy one-day prior to the robbery of Mr. Sherry and the shooting of Officer Beck.4 In addition to investigating the burglary, Detective Clipper was also a part ofthe search and arrest team that went to Lisa Morton's house because he had information that evidence pertaining to the break-in was inside that house. ECF 4-3 at 126. The property stolen mainly consisted of rifles, shotguns, a couple of handguns, and cash. Id. When Ms. Morton's house was searched, approximately ten firearms, handcuffs, and magazines for rifles were located in the basement. Id. at 126-7. Also recovered from the residence was a 35 mm camera with the name "Dawn" on it believed to belong to Dawn Murphy. Id. at 127-8. The magazines recovered were determined to belong to Jonathan Murphy. Id. at 128. Under cross-examination Detective Clipper admitted that Dawn Murphy's initial report to police was that she thought French or his brother broke into their house because they were doing work on the house along with other people including Bill Martin. Id. at 139. Detective Clipper never spoke to Bill Martin, did not observe the handgun in the kitchen, and did not ask the Murphy's if the Glock belonged to them. Id. at 140, 143-45.
Jonathan Murphy testified that he had hired French to put siding, gutters, and a new roof on his home. ECF 4-3 at 152. The week before October 31, 1993, the work was near completion and Mr. Murphy struck up a conversation with French about his gun collection which he showed to French. Id. at 153-54. Mr. Murphy told French and Kendall that he and his wife were going to a Halloween party on Saturday October 30, 1993....
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