Jordan v. State

Decision Date14 July 2020
Docket NumberNo. 0436,0436
PartiesMALCOLM JORDAN v. STATE OF MARYLAND
CourtCourt of Special Appeals of Maryland

MALCOLM JORDAN
v.
STATE OF MARYLAND

No. 0436

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019
July 14, 2020


HEADNOTE:

MURDER AND CONSPIRACY - A RANDOM SHOOTING - WHAT DOES THE APPELLANT CONTEND? - PRECISELY, WHAT IS BEFORE US? -- VIDEOTAPE OF THE POLICE INTERVIEW - HYPOTHETICAL MERITS OF THE NON-CONTENTION - A BRIDGE TOO FAR - THE PRESUMPTION OF INNOCENCE - THE CONTINUING OBJECTION PHENOMENON - FIRST CONTENTION IN A NUTSHELL - DENIAL OF A MOTION FOR MISTRIAL - THE EVIDENCE IN QUESTION - POSSIBLE PREJUDICE - MISTRIAL MOTION - PROOF OF CONSPIRACY - THE PHENOMENON OF CUMULATIVE ERROR

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Circuit Court for Baltimore City
Case No. 117017002

REPORTED

Leahy, Shaw Geter, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Moylan, J.
Concurring Opinion by Leahy, J.

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What is the question? The straightforward task of figuring out what the answer is can frequently be far less of an appellate burden than figuring out what the question is. What precisely does this question ask? Is such a question even relevant? Even if so, has the question been timely preserved for appellate review? Even if so, is the question embraced by the contention actually before us? Again we ask, "What is the question?" The fundamental problem with this appeal is that the answers the appellant argues strenuously in favor of do not match up with the questions the appellant has asked. There is no coherent core to hold everything together.

"Things fall apart; the center cannot hold."1
* * *

The appellant, Malcolm Jordan, was convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge Marcus Z. Shar, of murder in the first degree, conspiracy to murder, the use of a handgun in the commission of a crime of violence, and the possession of a handgun by a prohibited person. On this appeal, he raises the following three contentions:

1. Judge Shar erroneously admitted two items of allegedly prejudicial evidence;

2. Judge Shar erroneously denied the appellant's motion for a mistrial; and

3. The evidence was not legally sufficient to support the conviction for conspiracy.

A Random Shooting

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The only seriously contested issue in this case was the identification of the appellant as the shooter. The circumstances surrounding the shooting were not, and are not, in dispute. The shooting occurred in broad daylight on September 27, 2016, immediately in front of an apartment building at 3505 Woodland Avenue in Baltimore City. The murder victim was Tony Williams, who was shot as he rode by on his bicycle in front of the building. He was shot numerous times in his back and legs. He was taken to the hospital by the police and underwent emergency surgery. He was subsequently released from the hospital but returned to the hospital on October 22, 2016, where he died of septic shock. The Medical Examiner concluded that the septic shock was the result of the gunshot wounds and ruled the death to have been a homicide.

At 3505 Woodland Avenue, the police had discovered that the shooting incident had been vividly recorded by multiple high-definition color surveillance cameras. The surveillance footage showed that shortly before the shooting, a car drove up and parked on a lot just outside the apartment building. Two men emerged from the vehicle and walked to the porch of the apartment. One of the two men, later identified indisputably as Charles McEachin, entered the building. The second man, the ultimate shooter, stayed outside and appeared to have borrowed a cigarette lighter from one Linda Phillips, a resident of the apartment building. Within several minutes, McEachin re-emerged from the building and handed the actual shooter a beer. When Tony Williams, the victim, rode by several minutes later, the shooter stepped out and shot him numerous times in the back and legs. McEachin, who had returned to his parked car immediately before the shooting, drove up to the

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shooting scene. The shooter got into the front passenger seat and the two men sped away. There is no question as to "What happened?" The only question is "Who dunnit?" Who was the shooter?

The State conceded that the identity of the appellant as the shooter could probably not be adequately established by the surveillance tape alone. Two eyewitnesses, however, filled that gap. Charles McEachin, whom Linda Phillips had known for several years, was originally indicted along with the appellant as a co-conspirator. He was tried first in February of 2018. He was convicted of the possession of a firearm by a prohibited person but was acquitted of murder and conspiracy to murder. As a State's witness at the appellant's trial, he identified the appellant as the shooter. He also identified the appellant on the surveillance footage. He testified, moreover, that he had driven to 3505 Woodland Avenue with the appellant, whom he knew previously, and that he subsequently left the scene with the appellant after the shooting. Aside from routine but ineffective efforts to chip away at the weight of his identification, McEachin's establishment of the appellant as the shooter was essentially undamaged.2

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The second, also essentially undamaged, identification of the appellant as the shooter was made by Linda Phillips. She identified the appellant without hesitation on the surveillance footage, in a double-blind pre-trial photographic array, and at the trial. She had not known the appellant before the day of the shooting. That identification by Linda Phillips coincidentally corroborated the identification by Charles McEachin. In its own right, however, it abundantly satisfied the State's burden of production and magnified its burden of persuasion. At all costs, the defense had to disparage the identification made by Linda Phillips. It tried mightily to do so. That trial strategy forms the context for the appellant's first contention.

What Does The Appellant Contend?

What is the question? Presumably it is contained in the first contention, but the first contention is a troubling one. What is exasperatingly challenging is to try to fit the combined question and answer into a logical place within a coherent outline of the entire trial. A meaningful question demands a coherent context, as does a meaningful answer.

In the lengthy trial of the appellant, the key (the only) point of controversy was the credibility of the State's witness Linda Phillips. The defense went to extreme lengths, at times bordering on the bizarre, to impeach the credibility of Linda Phillips. Concomitantly, the State engaged in an arguably more than routine counter-measure to rehabilitate the credibility of Linda Phillips. As the heart of that rehabilitation effort, the Court played

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before the jury a 40-minute-long videotaped interview between the police and Linda Phillips. This entire impeachment-rehabilitation see-saw— including most especially the recorded police interview— was a distinct sub-division of the larger trial. It was, in a sense, a trial within a trial. It is, pertinently, the context for the appellant's first contention.

Precisely, What Is Before Us?

In the language of politics, a good appellate contention should stay on message, and not spin off in centrifugal diffusion. What is before us on this appeal, however, is exasperatingly diffuse. We will focus on three distinct and independent, albeit arguably related, events that were all part of the impeachment-rehabilitation saga. The first is the 40-minute videotaped interview of State's witness Linda Phillips by Detective Jill Beauregard. The second and third are specific, allegedly prejudicial remarks made to Linda Phillips by Detective Beauregard in the course of that 40-minute interview. But what exactly is the contention?

A. The Videotape Of The Police Interview (Not A Contention)

The context for the first contention arose out of the evidentiary ruling by Judge Shar permitting the State to play for the jury the 40-minute videotape of the interview between Linda Phillips and Detective Jill Beauregard. We discuss this ruling simply to set the scene for the contention that follows. The propriety of the ruling, however, is not itself a contention. It could have been a contention. We daresay the appellant would like it to be a contention. But it is most definitely not a contention. It does, however, set the stage for the contention. It is, however, a much larger stage than the contention actually raised. The opening page of the appellant's brief states the two-pronged contention as framed by him:

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I. THE CIRCUIT COURT ALLOWED THE JURY TO HEAR HIGHLY PREJUDICIAL EVIDENCE.

A. A Key Witness's Safety Concerns Improperly Stoked the Jury's Fears

B. Beauregard's Comment That Defendants Normally Plead Guilty Vitiated the Presumption of Innocence.

At the very outset of the appellant's argument in his brief, he reiterated the contention in precisely the same terms.

I. THE CIRCUIT COURT ALLOWED THE JURY TO HEAR HIGHLY PREDUCIAL EVIDENCE.

A. A Key Witness's Safety Concerns Improperly Stoked the Jury's Fears.

B. Beauregard's Comment That Defendants Normally Plead Guilty Vitiated the Presumption of Innocence.

The contention thus framed explicitly refers only to two small snippets of allegedly prejudicial conversation contained within a much larger 40-minute-long segment of the trial. It does not embrace the larger procedural decision to allow the entire videotaped police interview to be played before the jury. The contention does not even refer to that larger and antecedent procedural issue. The very decision to hold a trial, for instance, is not ipso facto tainted by something prejudicial that might occur in the course of the trial. Nor is the decision to hold a significant segment of a trial ipso facto tainted by something prejudicial that might happen in the course of that trial segment. A contention narrowly focusing on a substantive part of the whole is not a contention adequately challenging the whole.

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Albeit formally framing...

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