Jenkins v. State
| Decision Date | 04 September 2002 |
| Docket Number | No. 1121, No. 1122 |
| Citation | 146 Md. App. 83,806 A.2d 682 |
| Parties | Marvin JENKINS v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Sherrie B. Glasser, Assistant Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.
Zoe Gillen White, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Douglas Gansler, State's Attorney for Montgomery County, Rockville, on the brief) for appellee.
SONNER, DEBORAH S. EYLER, and SHARER, JJ.
A jury in the Circuit Court for Montgomery County convicted Marvin Jenkins, the appellant, of second degree murder and use of a handgun in the commission of a crime of violence in the shooting death of Steven Dorsey, Jr. The appellant also was convicted of attempted first degree murder, attempted second degree murder, and first degree assault on Michael Clark, who was with Dorsey when he was shot.
The court sentenced the appellant to a term of thirty years imprisonment for second degree murder; a consecutive ten-year term for use of a handgun in the commission of a crime of violence; a consecutive twenty-year term for attempted first degree murder; and a concurrent twenty-year term for first degree assault. The court merged the attempted second degree murder conviction.
On appeal, the appellant presents five questions for review, which we have rephrased:
I. Did the trial court err in denying the appellant's motion for new trial filed, inter alia, on the ground of an improper contact between a State's witness and a juror during the trial?
II. Did the trial court err in admitting into evidence certain statements made in the presence of witness Alfred Smith?
III. Did the motion court err in denying the appellant's motion to suppress evidence?
IV. Did the sentencing court err by not merging the conviction for assault with the conviction for attempted first degree murder?
V. Was the evidence sufficient to sustain the appellant's convictions?
For the following reasons, we shall affirm the judgments of the circuit court, except that we shall vacate the appellant's sentence for first degree assault.
Steven Dorsey, Jr., and Michael Clark spent most of the day and evening of April 13, 2000, together, smoking PCP and marijuana. By late that night, they were on Spring Street, near its intersection with Douglas Street, in the Lincoln Park area of Montgomery County. Clark saw two men walking toward them. He did not know or recognize either man. One of the men, later identified as David Barnett, addressed Dorsey, saying, "Just the nigger I'm looking for." Dorsey responded, "I still got that for you." According to Clark, one man walked over to a car while the other man, a "dark skinned guy[,] ... just started shooting."
Clark fled. Dorsey started running in the other direction. As Clark was running, he heard five or six shots, and realized that Dorsey was no longer running. Clark ran to a nearby home and banged on the door. When no one answered, he returned to the scene of the shooting and found Dorsey lying on the ground. The police arrived a few minutes later.
The appellant and Barnett were charged with numerous crimes arising out of the shooting incident. They were tried separately. At the appellant's trial, Clark testified for the State, and identified the appellant as the man who had walked over to the car, while the other man started shooting. Clark further testified that the appellant did not say anything during the encounter.
Additional facts will be recited as pertinent to our discussion of the issues.
The appellant's trial started on March 19, 2001, and concluded on March 30, 2001.
Jury selection took place all of March 19 and part of March 20. After the State and the defense had chosen jurors and indicated satisfaction with the panel, but before the jurors were sworn, the court told the jurors, inter alia:
The jurors were sworn and the court then gave them detailed general instructions to follow during the trial. Those instructions included the following:
On March 21, the State called Detective Patricia Pikulski as a witness. Pikulski, who is assigned to the homicide unit of the Montgomery County Police Department, was one of the officers who responded to the scene of the shooting. She testified that she arrived at the scene at about 12:20 a.m. About ten minutes later, she interviewed Clark, who was sitting in the back seat of a police cruiser. The interview lasted about 45 minutes. During the interview, Clark described the two men involved in the shooting. Pikulski testified about the descriptions Clark gave her of the two men.
During her interview of Clark, Pikulski took notes. On cross-examination, her notes were marked as a defense exhibit, and she was questioned about them. On re-direct examination, Pikulski read her notes into evidence.
At the conclusion of Pikulski's testimony, the court reminded her that she was under subpoena. The court stated,
On April 4, 2001, five days after the jury returned its verdict, Pikulski went to the State's Attorney's Office on an unrelated matter. She saw Deborah Armstrong, Esq., the prosecutor in the appellant's case, and walked over to say hello. In the course of their conversation, Pikulski commented to Armstrong that while the trial had been in progress, she had had an inadvertent encounter with one of the jurors, Bruce McDonald, at a religious retreat held in Virginia.
Upon learning this information, Armstrong immediately contacted the court and defense counsel and requested an emergency hearing. The emergency hearing was held the next day, April 5, 2001. At the hearing, Armstrong disclosed what Pikulski had told her, and asked the court to summons McDonald to court so he could be questioned about his contact with Pikulski during the trial. After conferring with counsel, the court scheduled an evidentiary hearing for April 19, 2001.
On April 9, 2001, the appellant filed a ten-day motion for new trial, under Md. Rule 4-331(a). He asserted as one basis for the motion that there had been an improper contact between Pikulski and McDonald during the trial that had prejudiced him and deprived him of his Sixth Amendment right to a fair trial. Specifically, the appellant argued that the contact had enhanced the credibility of the police in McDonald's eyes, when the defense was challenging police credibility with assertions that the police had conducted a sloppy investigation and had ignored key evidence favorable to the appellant. The appellant also argued that Pikulski and McDonald had deprived him of his right to know about the contact during the trial, by not bringing it to the court's attention during trial, in contravention of the court's instructions.
At the April 19, 2001 hearing, Pikulski testified as an adverse witness, called by the appellant. McDonald was called and examined by the court.
Pikulski stated that on Friday and Saturday, March 23 and 24, 2001, she attended a religious retreat in Virginia. The topic of the retreat was "Contemplation, Silence, Beauty and the Holy." She arrived at the retreat location at about 6:50 p.m. on March 23. About ten other people were present. Shortly after arriving, she started talking to a man named Bruce McDonald. She did not recognize him as someone she knew or ever had had contact with. After several minutes, McDonald walked away.
About ten minutes later, McDonald returned to where Pikulski was standing and said either that he "was" or "is" "on the jury." Thinking he had used the word "was," Pikulski responded, "Oh, you're one of the ones that convicted him?" McDonald replied, "I can't talk about it." Pikulski thought that was odd, and then asked whether McDonald was on the jury in the trial that was "right now?" McDonald responded, "Yes." Pikulski then said,
The people attending the retreat went home Friday night and returned Saturday morning. The retreat was supposed to last until 7:00 p.m. on Saturday, but concluded early, at 1:30 p.m. McDonald and Pikulski had a brief discussion, and McDonald suggested they have lunch together. She agreed and the two walked to a restaurant a few doors down from where the retreat had been held.
At lunch, Pikulski and McDonald talked about their families and discussed other personal topics. Pikulski learned that McDonald was a volunteer at the soup kitchen where she attends Sunday school. They did not talk about the appellant's case and Pikulski did not discuss her work or the police force in general. Pikulski and McDonald paid for their own meals. Pikulski then drove McDonald to his car. She was driving her own personal car, not a police car.
On Monday, March 26, 2001, Pikulski told Detective Kenneth Penrod, her superior, about her encounter with McDonald at the retreat. She did not contact the State's Attorney's Office because ...
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