Gray v. State

• Citation: 769 A.2d 192,137 Md. App. 460
• Decision Date: 28 March 2001
• Docket Number: No. 5750,5750
• Parties: James Melvin GRAY, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

769 A.2d 192

137 Md. App. 460

James Melvin GRAY, v. STATE of Maryland.

No. 5750, Sept. Term, 1998.

Court of Special Appeals of Maryland.

March 28, 2001.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Leonard Collins, Jr., State's Atty. for Charles County, LaPlata, on the brief.)

Submitted before DEBORAH S. EYLER, RAYMOND G. THIEME, Jr. (Ret'd, Specially Assigned), and WILLIAM W. WENNER (Ret'd, Specially Assigned), JJ. DEBORAH S. EYLER, Judge.

On November 30, 1995, James Melvin Gray reported his wife, Bonnie Gray, missing.¹ A week later, on December 6, 1995, Bonnie's nude body was found in the trunk of her car, on a construction site under development by Gray's brother. She had sustained ten cuts to the head, three gunshot wounds to the head, and a stab wound to the left chest penetrating her heart. In addition, five of her fingers had been cut off.

Gray was charged with first degree murder in the killing of his wife. His main theory of defense was that the murder had been committed by a man named Brian Gatton. To support this theory, Gray sought to introduce evidence connecting Gatton and Bonnie. His star witness for that purpose was a woman named Evelyn Johnson.

At the conclusion of a multi-week trial, a jury in the Circuit Court for Charles County convicted Gray of first degree murder. The court sentenced Gray to life imprisonment. On appeal, Gray presents a number of issues for review, which we have combined and reordered:

I. Did the trial court err in ruling inadmissible 1) statements by Brian Gatton to the effect that he had killed Bonnie; 2) evidence that Brian Gatton had raped Evelyn Johnson; and 3) evidence that Brian Gatton had committed an armed carjacking? II. Did the trial court err in ruling admissible 1) out-of-court statements by Bonnie about her intentions to tell Gray that she was leaving him and wanted a divorce; and 2) out-of-court statements by Gray that he would kill Bonnie if she left him or took their house and their six-year-old child, Becky, in a divorce proceeding?

III. Did the trial court err in denying Gray's requests to have Brian Gatton and another witness, George Wathen, invoke their Fifth Amendment privilege against self-incrimination in the presence of the jury, or, alternatively, in refusing to instruct the jury about the right of a witness to invoke that privilege?

IV. Did the trial court err in sustaining the State's objections to certain questions posed by Gray to State rebuttal witnesses?

For the following reasons, we conclude that the trial court did not err in its rulings. Accordingly, we shall affirm the judgment.

FACTS AND PROCEEDINGS

The State's main witness against Gray was George Wathen, a convicted felon who at one point shared a cell with Gray in the Charles County Detention Center. According to Wathen, in November 1997, Gray admitted killing Bonnie and confided many details of the murder to him. On cross-examination, Gray attempted to impeach Wathen's testimony that Gray was the source of his information about the details of the murder by showing that Wathen had had access to Gray's legal documents containing much of the information that Wathen claimed Gray had told him.

Another witness called by the State, Twain Harrod, Sr., testified that on the night of November 29-30, 1995, after smoking crack, he picked up a hitchhiker near the access road to the construction site where Bonnie's body later was discovered. He dropped the hitchhiker off at a road near Gray's residence. After Bonnie's body was found, the police showed Harrod a photographic array containing Gray's picture. At first, Harrod said he did not see the hitchhiker. He later identified Gray's picture as that of the hitchhiker.

Charles Raley, Jr., a friend of Gray's, testified that three or four months before Bonnie's death, Gray had visited him and had begun reading aloud a letter by Bonnie in which she complained about Gray not spending enough time with her. Gray stopped reading the letter midway through, pointed at Raley, and said: "If the bitch leaves me, I will kill her."

In early spring 1996, several months after Bonnie's death, Gray and a man named Jeffrey Davis were at Raley's house. Davis testified for the State and said that he heard Gray say, "the bitch wasn't getting my house" and "that's why I cut the bitch's fingers off, to get my wedding bands."

Frank Fertitta, a subcontractor who worked for Gray's brother, also testified for the State. In April or May 1993, Gray and Fertitta had several discussions about Gray's marriage to Bonnie, whom Gray referred to as "bitch." One day, Gray was extremely irate. He told Fertitta that "he would kill that bitch if she ever tried taking the house or kid."

The State also presented evidence tending to show that Gray was not upset upon learning that Bonnie was missing; that Gray made statements to police officers that were inculpatory; and that, the night before she disappeared, Bonnie told people that she wanted to end her marriage and was going to tell Gray that.

The defense adduced evidence that Gray was emotionally devastated upon learning of Bonnie's disappearance; that Bonnie had engaged in conduct inconsistent with an intent to end the marriage; that Wathen had access to documents that would have given him all of the information that he supposedly learned from Gray; and that Gatton, not Gray, was involved in the murder.

Additional facts will be recited as pertinent to our discussion of the issues.

DISCUSSION

I.

Gray first contends that the trial court erred in three rulings respecting alleged statements and conduct of Brian Gatton. The trial court ruled inadmissible the following evidence: 1) testimony by Evelyn Johnson about statements Gatton made to her to the effect that he had killed Bonnie Gray; 2) evidence that Gatton had raped Evelyn; and 3) evidence that Gatton had committed an armed carjacking. We will address these rulings separately.

(1)

The State moved in limine to exclude from evidence statements Gatton allegedly made to Evelyn Johnson to the effect that he had killed Bonnie Gray. In order to rule on the evidentiary question, the trial court held a hearing and took testimony from Evelyn Johnson, out of the presence of the jury.

Evelyn stated that in 1995, her husband, Ron Johnson, and Ron's cousin, Twain Harrod, Sr., were drug dealers. Brian Gatton, whom Evelyn had known since high school, was a crack cocaine user and one of Ron's customers. Gatton and Ron were friends and had spent some time in prison together. According to Evelyn, when Gatton was under the influence of crack cocaine, he became extremely hostile. In addition, Gatton had a habit of carrying knives with him.

In late 1995, Gatton began coming by Evelyn and Ron's house to buy crack cocaine from Ron. On some of his visits, he brought Bonnie Gray with him and referred to her as his girlfriend. Evelyn's testimony was inconsistent and unclear with respect to how many of these visits occurred and when they occurred. She testified that on at least one visit, Becky Gray accompanied Gatton and Bonnie.

One time when Bonnie and Gatton were at her house, Gatton and Bonnie argued, and Evelyn heard Gatton call Bonnie a "bitch." Gatton became very hostile. When Bonnie left, Gatton said, "if he couldn't have her no [one] else would."

Evelyn went on to testify that on an unspecified day after the news of Bonnie's disappearance, but before her body was found, Gatton came to her house looking for Ron's "stash." Ron was not home. Gatton, who was "high and drunk," asked Evelyn where the "stash" was. When she said she did not know, Gatton raped her. The next day, or the day after, Gatton returned. Once again, Evelyn was by herself and Gatton was "high and drunk." Gatton told Evelyn, "I took care of her," meaning Bonnie. He then asked whether Evelyn had told anyone about the rape. When she said no, he told her that if she did tell anyone about it, he would "take care of her like he took care of Bonnie." As Gatton was speaking those words, he was brandishing a hunting knife and a handgun, which he had pulled out of his boot.

Until "about a week" before the hearing on the motion in limine, Evelyn told no one, including her husband, about the rape and what Gatton had said. According to Evelyn, when defense investigators questioned her about Bonnie's death, drug dealers in her neighborhood suspected that she was a "snitch" and began intimidating her. Evelyn told the defense investigators that she would reveal what she knew about Bonnie's death in exchange for "protection." The defense investigators then rented a moving truck, moved Evelyn into an apartment in Prince George's County, and arranged for her to live there rent-free. It was then—two years after Bonnie's death—that Evelyn first mentioned the rape and Gatton's remarks.

After Evelyn finished testifying, Gray argued that Gatton's out-of-court statements, "I took care of her" and "I'll take care of you like I took care of Bonnie," were admissible to prove the truth of the matter asserted (that Gatton had killed Bonnie) because they were declarations against penal interest, under Md. Rule 5-804(b)(3). The State argued that the statements did not qualify as declarations against penal interest and lacked sufficient trustworthiness to be admissible under that exception to the rule against hearsay. The trial court ruled from the bench that the statements would not be admitted. It later issued a written opinion detailing its findings and reasoning.

Md. Rule 5-804(b)(3) provides, in relevant part:

Statement against interest. A statement which ... at the time of its making... so tended to subject the declarant to civil or criminal liability .... that a reasonable person in the declarant's position would not have made the statement unless the person

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