Higgs v. State
| Decision Date | 26 July 2021 |
| Docket Number | 856-2020 |
| Parties | BRANDON TROY HIGGS v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Circuit Court for Baltimore County Case No. 3-K-19-000218
OPINION [*]
On December 20, 2018, appellant, Brandon Troy Higgs, got into a physical altercation with the victims, Elvis Smith and Robert Peete, which resulted in appellant shooting Mr. Smith in the leg. Appellant subsequently was tried in the Circuit Court for Baltimore County on multiple counts, and a jury convicted him of two counts of attempted voluntary manslaughter, two counts of first-degree assault, four counts of violating Maryland's hate crime statute, Md. Code Ann., Crim. Law ("CR") § 10-304 (2018 Supp.), as well as firearm related offenses. The court sentenced appellant to 45 years' incarceration, all but 25 years suspended.
On appeal, appellant presents the following questions for this Court's review, which we have combined, renumbered, and rephrased slightly as follows:
On December 20, 2018, Wendell Jones, Mr. Smith, and Mr. Peete were finishing concrete work at a home in Reisterstown Maryland. On the last day of their job, when they were close to finishing the concrete that had been poured earlier that morning, a dog ran through the concrete, leaving pawprints behind it.
Appellant the dog's owner, approached the worksite and a verbal altercation between him, Mr. Smith, and Mr. Peete ensued. As explained in more detail, infra, the altercation escalated and ended with appellant shooting Mr. Smith in the leg.
On January 27, 2020, a three-day trial began. Mr. Jones testified that he arrived at the worksite at approximately 8:30 a.m. He had been hired to complete concrete work at a home, and he and Mr. Peete had spent the last several days framing and preparing the worksite for the concrete, which was poured the morning of the shooting. Mr. Smith joined them on the day of the shooting to help them finish their work. Approximately two hours before they would have finished the work, a Pit Bull ran through the "middle part of the concrete." The dog "messed the concrete up" and "left prints in the concrete," which Mr. Smith and Mr. Jones then needed to correct. Appellant and Mr. Smith "had some words." Mr. Jones could not "recollect everything that [appellant] said at that particular point." Appellant was not wearing a shirt or shoes during this first encounter.
Appellant went up the street to retrieve his dog, but he returned once more and "some words was said again." Appellant was still shirtless, and Mr. Jones estimated that only two to four minutes had elapsed between the two encounters. Mr. Jones could not remember the substance of the words exchanged, but he stated that there was a "strong dislike" between Mr. Smith and appellant. Mr. Jones testified that, after appellant left a second time, he and Mr. Smith went back to work trying to repair the pawprints in the concrete.
Approximately five to seven minutes later, appellant appeared again, this time wearing a hoodie and shoes, and he entered the worksite. Appellant called Mr. Smith some names, and Mr. Smith told appellant to "get off the property." A fight broke out, and Mr. Jones went across the street to his van and called the police. While he was calling the police, Mr. Jones heard Mr. Smith yell that appellant had a gun. At this point, appellant and Mr. Smith were fighting down the street, and Mr. Peete joined the fight in an attempt to take the gun. As soon as Mr. Smith yelled that appellant had a gun, the firearm discharged. Both appellant and Mr. Smith were touching the gun.
Mr. Peete also testified to his recollection of the events. He arrived at the worksite at approximately 6:30 a.m. When they were close to finishing their work, he went to Mr. Jones' van to retrieve some rags so he could clean up some concrete that had spilled on the front door of the home. He heard a yell, turned around, and saw a dog, at which point he also saw appellant, shirtless, coming up the street. Mr. Smith yelled, Appellant responded, "if the dog, um, bite you, just kick him," to which Mr. Smith replied, "if that dog bite me, I'm going to kill him." Appellant asked if Mr. Smith thought he was tough, and he then left to retrieve the dog.
Following this exchange, Mr. Peete began wiping the concrete off the door, but appellant returned with his dog. He gave Mr. Smith his address, noting that, if Mr. Smith had anything to say to him, he knew where to find him. Mr. Smith replied: "[M]an, go ahead and get your dog and keep him in the house."
Several minutes later, appellant returned to the sidewalk adjacent to the worksite, wearing shoes and a hoodie. He Appellant kept his hand in his pockets, and Mr. Peete was staring at appellant because he "wanted to know what [appellant's] intention was." As appellant turned to walk away, he told the group that they needed to "go back to Africa," and he told Mr. Smith to tell his "boy," i.e., Mr. Peete, to "stop staring." When Mr. Smith replied that Mr. Peete was a grown man, and if appellant had something to say to Mr. Peete, he should say it directly to him, appellant approached Mr. Smith, told him "you can't tell me anything," and shoved him with both hands.
In response to being pushed, Mr. Smith "mushed" appellant, i.e., he "[t]ook his hand and pushed [appellant's] face." Appellant then pushed Mr. Smith again, and Mr. Smith pushed back. At that point, appellant "went to reach into his pocket." Mr. Peete was trying to figure out "what was going on," stating that it did not "feel right." Mr. Smith then took a Come Along and, using the handle as a bat, struck appellant in the head.[1] Mr. Peete's initial reaction was to laugh, "[b]ecause every time [Mr. Smith] was hitting [appellant] in the head with the Come Along it sounded like, uh, softball bat hitting a softball. . . . it was funny." Appellant then started running, but Mr. Smith pursued him and kept swinging the Come Along. After Mr. Smith struck appellant's head several times, Mr. Peete started to walk toward them to stop Mr. Smith "before he kill this boy with the Come Along."
As Mr. Peete walked toward Mr. Smith and appellant, Mr. Smith and appellant "crashed into a car," which was parked in a driveway two houses down. At that point, Mr. Peete noticed something in appellant's hand. He could not see what was in appellant's hand, but Mr. Smith yelled out that appellant had a gun, and Mr. Peete "took off running." When he reached Mr. Smith and appellant, they were already on the ground. Mr. Smith had a hold of appellant's right sleeve, and Mr. Peete pressed his knee down on appellant's right arm. As Mr. Peete looked down, he saw the barrel of the gun pointing directly at his face, and, although appellant's hand was not on the handle of the gun, Mr. Peete observed appellant's finger "pop up like he was about to go to the trigger." Mr. Peete grabbed the barrel of the gun and pressed it to the ground, following which he "gave [appellant] everything that [he] had," punching appellant in the face. Mr. Peete told appellant to "just let the gun go," but appellant refused, saying "oh, no, y'all going to kill me."
Appellant was able to push himself off the ground and pull the gun back toward his chest, but Mr. Peete was able to pin appellant back to the ground. Approximately two minutes later, however, appellant once more pushed himself off the ground, and Mr. Peete's "whole body went forward." Appellant got up on one knee, and he pointed the gun at Mr. Smith. Mr. Peete grabbed appellant's hand "a little bit further up than [appellant's] wrist," but the gun went off, and Mr. Smith was struck in his leg.
The struggle for the gun continued after the shooting. Mr. Peete struck appellant in the temple, and Mr. Smith was able to gain control of the gun. Mr. Smith handed the gun to Mr. Peete, who struck appellant's head with the gun. Shortly thereafter, the police arrived and arrested appellant.[2]
Mr. Smith also testified regarding his recollection of the events. He testified that, when appellant returned for the final time, appellant told him, Mr. Smith responded: "[M]y man, you invading my space." After appellant pushed him in his chest, Mr. Smith took the Come Along and struck appellant in the head a single time. He did not know that appellant was armed with a handgun at the time he struck appellant with the Come Along, but he did notice that appellant kept his hands inside his hoodie.
After Mr. Smith struck appellant with the Come Along, appellant backed up and pulled out the handgun concealed in the pocket of his hoodie. Mr. Smith yelled "gun," and he and Mr. Peete fought appellant for control of the weapon. Approximately three or four minutes elapsed between the time the initial fight broke out and when Mr. Peete...
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