Height v. State

• Decision Date: 06 May 2009
• Docket Number: No. 1021, September Term, 2007.,1021, September Term, 2007.
• Citation: 185 Md. App. 317,970 A.2d 921
• Parties: Andrew HEIGHT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

970 A.2d 921

185 Md. App. 317

Andrew HEIGHT v. STATE of Maryland.

No. 1021, September Term, 2007.

Court of Special Appeals of Maryland.

May 6, 2009.

Michael R. Malloy (Nancy S. Forster, Public Defender on the brief), Baltimore, for appellant.

Susannah E. Prucka (Douglas F. Gansler, Attorney General on the brief), Baltimore, for appellee.

Panel: DEBORAH S. EYLER, MATRICCIANI and CHARLES E. MOYLAN, JR. (Ret'd, Specially Assigned), JJ.

DEBORAH S. EYLER, J.

A jury in the Circuit Court for Baltimore City convicted Andrew Height, the appellant, of first-degree assault, use of a handgun in commission of a felony or crime of violence, wearing, carrying, or transporting a handgun, and possession of a regulated firearm after having been previously convicted of a disqualifying crime.¹ The court sentenced the appellant to 18 years' incarceration for first-degree assault, a concurrent ten years for use of a handgun in commission of a felony or crime of violence, a concurrent three years for wearing, carrying, or transporting a handgun, and a concurrent five years without the possibility of parole for possession of a firearm after having been previously convicted of a disqualifying crime.

The appellant presents four questions for review, which we have rephrased slightly:

I. Did the trial judge err when, in conducting voir dire, he posed questions to the venire collectively without obtaining answers, and then questioned each venire member individually at the bench?

II. Did the trial court err by overruling the appellant's objection to a portion of the prosecutor's opening statement that suggested a State's witness was reluctant to testify because of the "law of the street"?

III. Did the trial court err by refusing to permit the cross-examination of a detective about whether he was suspended from the police force?

IV. Did the trial court err by not merging the appellant's sentences for use of a handgun in a crime of violence and wearing, carrying or transporting the same handgun?

For the following reasons, we shall vacate the appellant's sentence for wearing, carrying, or transporting a handgun, and otherwise affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

On March 15, 2005, at approximately 9:45 p.m., the victim in this case, Bernard Holmstead Cure, was found near 1605 East Eager Street in Baltimore City. He had sustained a gunshot wound to the chest. Cure told Officer Andre Robinson, of the Baltimore City Police Department, that he had been shot near East Eager Street and North Madeira Street. Cure was transported to The Johns Hopkins Hospital emergency room where he repeated that information to Detective Kevin Turner.²

The next day, Detective Turner received a telephone call from an unnamed source suggesting that the shooting actually had occurred at the High Hat Lounge, a bar then located at 967 North Wolfe Street.³ The High Hat Lounge was about three blocks east of where Cure was found. The intersection of East Eager and North Madeira Streets, where Cure claimed to have been shot, was about three blocks farther east of the High Hat Lounge.⁴

Detective Turner's investigation led him to speak with three witnesses: Harold Sessoms, Antoinette Calhoun, and Bernard Pratt. At trial, Detective Turner and these three witnesses testified for the State.

Harold Sessoms worked at the High Hat Lounge handling carry-out and tending bar. On March 15, 2005, he witnessed a fight between two men at the bar. In particular, he saw the appellant hit another man with a handgun. Sessoms turned away and about "three to five minutes later" heard gunshots and saw everyone run out of the bar. He did not see who was shot. When he went outside afterward, no one was there, so he did not call for an ambulance or the police. He closed up and locked the bar, but did not clean it because he was "not the clean up man." He did not see the police or anyone from the Crime Lab photographing the bar, taking fingerprints, or recovering any bullets or shell casings from the bar. Sessoms's first contact with the police about the incident was the next day, March 16, when he spoke to Detective Turner.

On March 25, 2005, ten days after the shooting, Sessoms gave a statement to the police and identified a photograph of the appellant. At trial, Detective Turner initially testified that Sessoms identified the appellant as the person who shot the victim in the bar; he clarified on cross-examination that Sessoms told him he did not see the actual shooting.

Antoinette Calhoun, an admitted drug user at the time of the shooting, was present in the small bar area of the High Hat Lounge on March 15, 2005, at around 7:00 p.m. Several people were in the bar at that time, including Cure, the shooter, the bartender, and others. Calhoun was standing near the side of the bar, next to Cure. The appellant was sitting next to Cure, and a woman named "Usa" was standing nearby. Calhoun heard Cure and the appellant arguing, and then saw the appellant rise up and hit Cure, apparently more than once. (Sessoms confirmed that Cure was sitting and the appellant was standing during this portion of the incident.) She then saw the appellant raise his hand, in which he was holding what appeared to be a silver gun, and heard gunshots. The fight was in progress "[l]ike a couple of seconds" before the shots were fired.

Neither Sessoms nor Calhoun testified that they actually saw the shooting. Although Sessoms heard three gunshots, he did not see who was shot. When asked whether she saw the appellant shoot the victim, Calhoun initially testified, "Let me think about that. It couldn't have been nothing else." In clarifying her response, Calhoun said, "I just seen him hit him." On cross-examination, she testified she did not see the gun being fired. When asked how many shots she heard, she replied she did not know, but that she "heard enough to leave," and that she had run out of the bar and to a friend's house.

Some days later, on March 23, 2005, after being taken into custody on drug possession charges, Calhoun gave a statement to the police. She also chose from a photographic array a picture of a person she knew as "Drew," and identified him as the man who shot Cure at the High Hat Lounge. Calhoun did not look at the photographic array for long because she "looked right at it and knew it." She handwrote on the back of the appellant's photograph, "Drew hit him and then he shot him." Detective Turner confirmed that Calhoun identified the appellant's photograph within seconds of being shown the array.

Bernard Pratt testified that he was familiar with the High Hat Lounge and had known the appellant for a few years from the neighborhood. Although he knew several people who frequented the High Hat Lounge, including Sessoms and one Ingrid Lessane, a/k/a "Usa," he did not know a person named "Bernard Cure."

After the March 15, 2005 shooting, the police spoke with Pratt, who was near the scene. At trial, Pratt testified that he did not remember telling the police he had seen a shooting at the High Hat Lounge or that he had seen the appellant with a gun. He also did not remember seeing a photographic array in this case and denied that he was shown the array identified as State's Exhibit 3. When the prosecutor attempted to refresh Pratt's recollection with a transcript of a prior recorded statement he had made to the police, Pratt denied ever having made such a statement. The prosecutor played part of the audiotape of the recorded statement, but Pratt denied it was his voice on the recording.

According to Pratt, he was outside the High Hat Lounge on the night the shooting took place. He did not see the shooting. He did not tell the police that he saw the appellant shoot anyone or that he saw the appellant with a gun in his hand. He did not identify in court the appellant in the photographic array.

In Detective Turner's testimony, he gave an entirely different version of Pratt's police interview. The interview took place on March 23, 2005, in the Eastern District station house interview room. Detective Turner identified a transcript of the recorded statement Pratt gave that day and a copy of the photographic array shown to Pratt that day. (State's Exhibit 3.) He explained that Pratt was not mentioned by name in the statement because "he [Pratt] didn't want to give his name cause he's known in the area to a lot of the drug dealers, and the citizens, and he didn't want to be known as a snitch."

Detective Turner testified that Pratt identified a photograph of the appellant in the array and, although he did not sign the array, he wrote on the back of it, "This is Drew. He shot the boy in the bar." Detective Turner identified the audiotape of the recorded statement given by Pratt. The tape, which was the subject of a motion in limine outside the presence of the jury, was admitted into evidence as a prior inconsistent statement. On it, Pratt is heard to say that he had spoken with Cure inside the bar and, as they were leaving, he heard gunshots. He did not see the shooting, but he saw the appellant holding a gun in his hand afterward. On the audiotape, Pratt also said that he had identified the appellant's photograph in the array and had written, "This is Drew. He shot the boy in the bar."

Finally, as to the State's evidence, Detective Turner confirmed that no fingerprints, bullets, shell casings, or guns were recovered in connection with this case. The parties stipulated that the appellant previously had been convicted of a crime for which he was prohibited from possessing a regulated firearm.

The defense called one witness, Ingrid Lessane, nicknamed "Usa." She testified that she knew both the appellant and Bernard Cure and that she and Cure, but not the appellant, were inside the High Hat Lounge on the evening of March 15, 2005. She was speaking with Cure when a man she did not know entered the bar, pistol-whipped Cure, and then shot him. Lessane hid behind the...