Howard v. State, 1909

Decision Date12 October 2016
Docket NumberNo. 1909,1909
PartiesCURTIS HOWARD v. STATE OF MARYLAND
CourtCourt of Special Appeals of Maryland

UNREPORTED

Graeff, Arthur, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Thieme, 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.

Tried by a jury in the Circuit Court for Anne Arundel County, appellant, Curtis Howard, was convicted of attempted second-degree murder, reckless endangerment, carrying a weapon openly with the intent to injure, and conspiracy to commit first-degree assault.1 The trial court sentenced appellant to a total of 18 years in prison, with five years of supervised probation (with conditions) upon his release. Appellant timely noted this appeal, in which he presents the following questions for our consideration:

1) Did the motions court err in denying Appellant's motion to suppress physical evidence?
2) Did the trial court commit plain error by delegating its duty to determine prospective juror bias, when it asked a compound voir dire question about whether prospective jurors' connection to law enforcement "causes you some concern about your ability to fairly and impartially assess the evidence in a criminal case?"
3) Did the trial court err by refusing to admit the prior inconsistent statement of a State's witness, where the defense satisfied all of the foundational requirements for its admission?
4) Is the evidence sufficient to sustain Appellant's convictions for attempted murder and conspiracy?
5) Did the trial court impose an illegal condition of probation, when it banned Mr. Howard from returning home upon his release from prison?

For the reasons that follow, we conclude that the trial court imposed an illegal condition of probation upon appellant, and we therefore remand to that court with an order to correct appellant's probation order and commitment record. Otherwise, we shall affirm the judgments of the trial court.

FACTS AND LEGAL PROCEEDINGS

In August 2014, Jason Russell lived on Pioneer Drive, Anne Arundel County, with his wife, father-in-law, and two children. Appellant and his brother, Gary Howard, lived with their mother and other siblings, three houses down the street from the Russells'.2 Russell and Gary had been involved in a previous disagreement over a matter pertaining to Russell's family members and had engaged in verbal altercations on several occasions.

At approximately 10:00 p.m. on the evening of August 29, 2014, the Russell family returned home from an outing to find that their assigned parking space was occupied by a car Russell believed to belong to Gary's girlfriend. Russell knocked on Gary's door and asked Gary to move the car; Gary said he would and closed the door.

Russell returned to his house, drank six or seven alcoholic beverages, and watched his daughter as she played outside. After three or four hours, no one had removed the offending car from Russell's parking space, so he again knocked on Gary's door and advised Gary that if someone did not move the car, he would have it towed.

Russell walked back to his house, and as he stood outside, he saw Gary, Gary's girlfriend, and appellant approaching. Russell felt threatened by their demeanor and told his daughter to go into the house.

Russell asked Gary why it was taking so long to move the car, and Gary responded by punching him in the face. Russell "may have thrown a punch back or two" and noticedthat appellant had moved behind him. Although he did not see appellant do anything, he felt a "sharp pain" in his back and fell to the ground, where he was punched and kicked. The last thing he remembered before losing consciousness was Gary "stomping" on his face. He awoke at University of Maryland Medical Center, Shock Trauma, in Baltimore.

Anne Arundel County Police Detective Jeff Golas interviewed Russell at Shock Trauma the following day. Russell told the detective that it was appellant and Gary who had attacked him, and he immediately identified them as his assailants from photographs Golas showed him. Golas observed trauma to Russell's face, including a visible shoe print.3

Jason Russell's wife, Timica Russell, testified that she was alerted to the altercation involving her husband when their young daughter came into the house yelling that "Gary was stabbing daddy" and "daddy was hurt." Timica Russell looked out the window of their house to find her husband on the ground with Gary and appellant "right there with him, and. . .over him." Gary was kicking, beating, and stomping on Jason with something sharp and shiny—maybe a knife—in his hand. Timica called 911 and ran outside where she also saw "[s]omething shiny" and sharp in appellant's hand. She heard Gary say to Jason, "I bet you won't say nothing else," before he and appellant ran to the Howard home down the street. Shortly thereafter, appellant, Gary, and Gary's girlfriend left the neighborhood in the girlfriend's car.

When the police arrived, Timica Russell identified appellant and Gary, and perhaps two other unidentified men, as her husband's attackers. A broken beer bottle was recovered from the scene of the fight, but no weapon was found on the street or at the Howard house upon the execution of a search warrant later that morning.

After interviewing Jason and Timica Russell, Detective Golas obtained arrest warrants for appellant and Gary. Further police investigation yielded the name of a possible girlfriend for Gary, Cheryse Jackson, along with her address.

On September 1, 2014, Golas and other officers responded to Jackson's apartment in Baltimore County. When Jackson answered the door, Golas saw Gary, wearing only a pair of shorts or boxers. After being commanded to get on the ground, Gary complied, and Golas called out for appellant, who eventually joined his brother, also wearing shorts or boxers and a tank top. A Baltimore County officer placed the men under arrest, and they were removed from the apartment in handcuffs.

Golas asked Jackson if she had appropriate clothes and shoes for the men to put on. Jackson directed him to a duffel bag next to the dining room table and to two pairs of sneakers, which Jackson said appellant and Gary had been wearing, by the front door.

Golas, a collector of Nike sneakers, was aware that the sneakers, Nike Foamposites, had a unique sole pattern that matched the injury he had observed on Russell's face. He took the shoes to the Anne Arundel police precinct with the intent of giving appellant and Gary the shoes to wear; once at the precinct, however, he observed "reddish-brown spots" on the soles of the shoes. He photographed the shoes and turned them over to the evidencecollection unit.4,5 Through Golas, the State also introduced photographs taken of appellant and Gary at the police precinct, which showed a cut on appellant's forearm and numerous cuts on Gary's hand.

Danshawn Stukes, appellant's pretrial cellmate at the Anne Arundel County Detention Center, testified that appellant, while talking to Stukes about "random things," said he was "stressed" because his brother was angry at him for stabbing a neighbor during a fight. Appellant also told Stukes that he had fled the scene of the fight because he thought the victim was dead.6

At the close of the State's case-in-chief, appellant moved for judgment of acquittal, arguing that the State had adduced no evidence of any intent to commit murder. In response to the court's comment that there did not appear to be evidence of "a whole lot more than first degree assault," the prosecutor pointed out that Russell had been stabbed nine times on his torso and stomped on his head while lying defenseless on the ground, a clear indication of an intent to commit murder. In addition, Stukes had testified that appellantthought he had killed Russell, which showed his intention to kill and the belief that he had carried out that intention. The court ruled that, as the law says one intends the natural consequences of his actions, proof of multiple stab wounds to the body was sufficient evidence to require a denial of the motion on that ground.

Appellant further argued that there had been no evidence presented of any agreement between the brothers, verbal or non-verbal, to support the conspiracy charges. The court, ruling that the fact that one brother attacked Russell from the front and one from the back simultaneously supported an inference of concerted effort and conspiracy, denied the motion on that ground, as well.

In appellant's defense, his mother, Nancy Peterson, testified that on the night of the attack, she observed appellant trying to pull Gary off Jason Russell during a fight. She also saw several other people at the scene of the fight.

Upon cross-examination, Peterson conceded that she did not call 911 to report the fight. In fact, she had denied a request by the State's Attorney's office to speak with its police investigator because "he worked for the other side."

At the close of all the evidence, appellant renewed his motion for judgment of acquittal, incorporating all of the arguments he had previously made. The court again denied the motion.

DISCUSSION
I.

Appellant first contends that the suppression court erred in denying his motion to suppress physical evidence. He avers that the Nike shoes linking him to the attack onRussell were seized unconstitutionally during a warrantless search of the apartment belonging to Gary's girlfriend, Cheryse Jackson.7

Jason Russell testified at the suppression hearing that when Detective Golas visited him in the hospital the day after the stabbing to present him with photographs of potential suspects, he immediately identified appellant and Gary as his attackers. He also relayed to the detective that Gary had "stomped" on his face before he blacked out.

Cheryse Jackson testified that on ...

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