Gibson v. State, No. 3428

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Wells, J.
Decision Date20 August 2020
Docket NumberNo. 3428


No. 3428


September Term, 2018
August 20, 2020

Circuit Court for Baltimore City
Case No. 1171213014


Meredith, Wells, Wright, (Senior Judge, Specially Assigned) JJ.

Opinion by Wells, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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A jury in the Circuit Court for Baltimore City convicted Terrell Gibson, appellant, of first-degree murder and use of firearm in the commission of a crime of violence. The court sentenced Gibson to life plus 15 years' imprisonment, with all but 65 years suspended. On appeal, Gibson presents the following questions for our consideration, which we reproduce verbatim:

1. Did the trial court abuse its discretion in giving a flight instruction where the sole contested issue was the identity of the person who committed the crime and fled the scene?

2. Did the trial court abuse its discretion in denying the defense's request for mistrial after the lead detective identified Mr. Gibson from inconclusive surveillance footage?

3. Was the evidence legally sufficient to support Mr. Gibson's convictions?

Concluding the court committed no reversable errors, we affirm.


On July 2, 2017, Dionay Smith was shot and killed in his first-floor apartment at 1401 Argyle Avenue in Baltimore City. Smith sustained a gunshot wound to his right cheek that left a residue of "soot seared edges," indicating that the muzzle of a shotgun had been pressed against his skin at the time the gun was fired. The shotgun had dispersed pellets throughout Smith's brain, transecting his brain stem and causing a "rapidly fatal" injury. On the day of Smith's murder, home security video captured an individual running down the hallway of the building, stuffing a gun into his waistband. The State charged Gibson with Smith's murder and the use of a handgun in the commission of that crime.

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Dexter Richardson, who lived in a room across the hall from Smith, described the building as a three-level house, split into different sections "like apartments" or "rooms." On the morning of July 2, 2017, Richardson had helped Smith move his belongings to a room on the second floor of the building. Later that day, when Richardson believed that Smith was at work, Richardson noticed that something had been left on in Smith's first-floor apartment. Richardson approached the room and saw that the door was ajar. Inside the room, Richardson saw a pool of dried blood on the floor.

Soon thereafter, according to Richardson, he heard knocking on Smith's window and went to the front door and let Gibson in the building. Richardson told Gibson that he thought that Smith was dead. Richardson said that Gibson asked him "does anyone else know?" Richardson stated that initially Gibson seemed "remorseful" but then he "flipped" and told Richardson to go back to his room. Richardson stated that, at that point, he was scared and "felt like [Gibson] was going to kill [him]," so rather than go to his room, he ran upstairs to his mother's apartment and told her that he thought Smith was dead. Richardson stated that he had seen Gibson with Smith in the building before, but he had not previously spoken to Gibson.

On the following day, Richardson was interviewed at the police station, where he identified Gibson from a photo array. He acknowledged at trial that when he was first shown the photos, he told the detective that the person he identified "slightly look[ed] familiar" but that he was not "really sure." Richardson was shown the photos again and told the detective that he was about "twenty-five percent sure" that he recognized the person he had identified in the photo. While at the police station, Richardson spoke to his

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mother on the phone and told her that he identified Gibson by the photo array, but he also told her that he was unsure. Richardson testified that he had said that he was only twenty-five percent sure of his photo identification because he was scared and "didn't know what to think."

A security camera linked to a Comcast home security account recorded footage of the first-floor hallway of 1401 Argyle Street, 24 hours per day, 7 days per week. Richardson reviewed the security video from July 2, 2017 and identified himself on the video entering the building at 2:27 p.m. He identified Smith in the first-floor hallway at approximately 6:00 p.m., and he identified himself speaking to Gibson, who was wearing a gray t-shirt, in the hallway at approximately 7:30 p.m. Richardson testified that he had no doubt that Gibson was the person he had let in to the building.

Willie Lee Ebron lived on the third floor of the building at 1401 Argyle Avenue. He recalled seeing Gibson on July 2, 2017, talking to another individual in the hallway of the building, between 10:00 a.m. and 2:00 p.m. Ebron estimated that he had seen Gibson in the building with Smith four or five times previously but stated that he had never spoken to Gibson. Ebron viewed the surveillance video from July 2, 2017 and identified himself passing two men in the hallway at approximately 4:36 p.m. Ebron identified Gibson in the video as the individual wearing a "[b]aseball hat and a tank top T-shirt."

On July 3, 2017, Ebron identified Gibson from a photo array as a person "who looks like the guy who comes around to see [Smith]." Ebron recalled that he had told police that he was not "a hundred percent sure" that he recognized the person he had identified. He was unsure whether the police had shown him the photo array before or after he had

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watched the surveillance video. At trial, Ebron testified there was no question that Gibson was the person he had seen in the hallway on July 2, 2017.

Baltimore City Police Detective Michael Moran, the lead homicide detective assigned to the case, responded to 1401 Argyle Avenue on July 2, 2017 and observed Smith, in the first-floor front room, deceased, with a gunshot wound to the face. Detective Moran testified that no firearms or ballistics evidence was obtained from Smith's room. Detective Moran subsequently collected "wadding and pellets from a 410 shotgun" from the medical examiner's post-mortem examination of Smith. The firearm used in the homicide was not recovered.

As part of his investigation, the detective obtained video recordings from the first-floor hallway of the building for July 2, 2017. He viewed the video and observed an individual wearing "a white tank top, jeans, and white and black tennis shoes, kind of a muscular build," with a "chisel[ed] face" who "walked with a bow leg" remove a "pistol grip shotgun" from an "Eastern baseball bag" and walk around the hallway with it "for quite a while." Additional video footage recorded at 6:30 p.m. showed the individual, wearing a white tank top and jeans, running down the hallway while shoving a gun into his waistband before exiting through the front door of the building. On July 6, 2017, Gibson was brought to the police station for questioning.

Daniel Lamont, a firearms examiner for the Baltimore City Police Department Crime lab, described the gun held by the suspect in the security video as a shotgun, rather than a revolver, with what appeared to be a pistol grip. The parties stipulated that a DNA analysis of swabs taken from Smith's front pockets yielded a DNA profile consistent with

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DNA from Smith and at least two minor contributors. Gibson was excluded as a DNA contributor.

At the close of the State's evidence, Gibson moved for judgment of acquittal, which the trial court denied. The jury convicted Gibson of first-degree murder and use of a firearm in the commission of a crime of violence. The court sentenced Gibson to life plus 15 years' imprisonment, with all but 65 years suspended. He noted a timely appeal.


I. The Trial Court Instructing the Jury on Flight Was Not Error

Gibson argues that the trial court abused its discretion in giving the flight instruction because the instruction was not applicable under the facts of this case. Gibson contends that where, as here, the sole issue at trial was the identity of the shooter, and there is no dispute that the person who fled the scene was the shooter, the instruction was irrelevant and improperly suggested to the jury that evidence of flight was evidence of Gibson's guilt.

The State contends that the flight instruction was generated by the evidence in this case, even though the identity of the perpetrator was at issue. The State argues that even if the trial court abused its discretion in giving the flight instruction, any error was harmless.

Maryland courts have consistently recognized the admissibility of "consciousness of guilt evidence, including flight from the scene of a crime, or flight from apprehension as a factor that may be considered in determining guilt." Jones v. State, 213 Md. App. 483, 508 (2013) (internal quotation marks and citation omitted). See also Thompson v. State, 393 Md. 291, 304 (2006). "A person's post-crime behavior often is considered relevant to

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the question of guilt because the particular behavior provides clues to the person's state of mind." Thomas v. State, 372 Md. 342, 352 (2002).

The continued validity of flight instructions is questionable in many jurisdictions. In Thompson, 393 Md. at 309-10, the Court of Appeals identified a number of jurisdictions that no longer allow flight instructions:

See Hadden v. State, 42 P.3d 495, 508 (Wyo.2002) (determining that the giving of a flight instruction is reversible error because it impermissibly emphasizes a single piece of circumstantial evidence); Dill v. State, 741 N.E.2d 1230, 1233 (Ind.2001) (concluding that the flight instruction should not be given because it is "confusing, unduly emphasizes specific evidence and is

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