Garner v. State
Decision Date | 02 January 2002 |
Docket Number | No. 2590,2590 |
Citation | 788 A.2d 219,142 Md. App. 94 |
Parties | Matthew Leo GARNER, v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Flynn M. Owens (Jack B. Rubin, P.A., on the brief), Baltimore, for appellant.
Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, for appellee.
Argued before MURPHY C.J., and DAVIS and JOHN J. BISHOP, Jr. (Retired, specially assigned), JJ.
In the Circuit Court for Baltimore City, a jury convicted Matthew Leo Garner, appellant, of attempted first-degree murder, first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, and unlawful possession of a handgun. The conflicting evidence presented to the jury was sufficient to establish that he committed each of those offenses. Appellant argues, however, that he was unfairly prejudiced by a violation of his Fifth Amendment rights, and presents a single question for our review:
I. Did the prosecutor's misconduct in violating the rule of Doyle v. Ohio [426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) ] so infect appellant's trial with unfairness as to make the resulting conviction a denial of due process?
For the reasons that follow, we shall reverse the judgment of the circuit court, and remand the case for a new trial.
In the early morning hours of September 23, 1998, at 4513 Shamrock Avenue in Baltimore City, appellant shot Omar Ford after Ford punched him.1 Candace Baxter, who witnessed the shooting, gave testimony that was consistent with the testimony of Mr. Ford.2 She also testified that, after the shooting, she and appellant became romantically involved, and that appellant told her that he was going to testify that he was not in possession of a gun when Ford punched him. About five days after the shooting, Baxter gave a written statement to appellant's counsel in which she stated that appellant was not in possession of a gun on the occasion at issue. Baxter testified that she gave this statement because she both liked appellant and was scared of him.
Appellant testified to the following facts.3 He was with Candace Baxter when Mr. Ford confronted the two of them, and asked Baxter "what the fuck was going on." Appellant tried to leave, but Baxter appeared to be afraid and appellant feared for her safety. Ford asked appellant if he liked Baxter, and appellant replied yes. Ford then struck appellant on the left side of his face with enough force to knock appellant to his knees. While he was struggling with Ford, he heard a gunshot and stumbled into a shed in the back yard. The gunshot was fired by Ford. Appellant did not have a gun with him when this incident occurred. After he stumbled into the shed, appellant noticed that the gun was on the ground. Appellant grabbed the gun and, out of fear that Ford was going to harm Baxter, fired one shot in Ford's direction.
The following transpired at this point in appellant's direct examination:
The following transpired at the conclusion of appellant's cross-examination:
(Counsel approached the bench and the following ensued.)
(Counsel returned to trial tables and the following ensued.)
At this point, appellant's counsel renewed his motion and the following transpired:
The circuit court denied appellant's motion and the jury ultimately convicted appellant of attempted first-degree murder, first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, and unlawful possession of a handgun.
Two of the circuit court's rulings are before us: (1) the refusal to grant appellant's motion for mistrial, and (2) the overruling of appellant's objection to the prosecutor's final question. We need not reach the issue of whether the circuit court abused its discretion in denying the motion for mistrial,4 because we are persuaded that it erred in overruling the objection to the question, "Did you ever tell the police... ?"
Appellant's trial counsel argued to the circuit court that the question at issue was improper under Dupree v. State, 352 Md. 314, 722 A.2d 52 (1998), and has argued to us that this question was improper under Doyle v. Ohio, supra. Those cases, however, involve "post-arrest, post-Miranda " silence.5
In Doyle, the defendants, after being arrested for selling marijuana, received their Miranda warnings and chose to remain silent. 426 U.S. at 611-12, 96 S.Ct. at 2242. During their trials, they testified that they had not sold marijuana, but had been "framed." 426 U.S. at 612-13, 96 S.Ct. at 2242. To impeach the defendants, the prosecutors asked them why they had not relayed this version of events at the time of their arrest. Doyle, 426 U.S. at 613, 96 S.Ct. at 2243. The United States Supreme Court held that the prosecution may not impeach a defendant with his post-Miranda silence because those warnings carry an implicit "assurance that silence will carry no penalty." 426 U.S. at 618, 96 S.Ct. at 2245.
In Dupree v. State, 352 Md. 314, 722 A.2d 52 (1998), the Court of Appeals stated that 352 Md. at 324,722 A.2d at 57 (citing Doyle v. Ohio, supra, 426 U.S. at...
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