Kelly v. State
Decision Date | 08 May 2006 |
Docket Number | No. 49, September Term, 2005.,49, September Term, 2005. |
Citation | 392 Md. 511,898 A.2d 419 |
Parties | Francesco A. KELLY v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Nancy S. Forster, Public Defender, Baltimore, for petitioner.
Gregory D'Alesandro, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Baltimore), on brief, for respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
Francesco Alexjandre Kelly, petitioner, was convicted by a jury in the Circuit Court for Montgomery County on May 22, 2003, of two counts each of attempted first degree murder,1 attempted second degree murder,2 first degree assault,3 and use of a handgun in the commission of a felony or a crime of violence.4 He was sentenced to twenty-five years for the first count of attempted first degree murder, a consecutive ten years for the second count of attempted first degree murder, and a consecutive five years for the first count of use of a handgun in the commission of a felony or a crime of violence (to run concurrently with five years for the second count of use of a handgun in the commission of a felony or a crime of violence), for a total of forty years imprisonment.5
The Court of Special Appeals affirmed the convictions. Kelly v. State, 162 Md. App. 122, 873 A.2d 434 (2005). Petitioner filed a petition for writ of certiorari on June 15, 2005. We granted certiorari on August 10, 2005. Kelly v. State, 388 Md. 404, 879 A.2d 1086 (2005). The following questions are presented for our review:
We hold that the trial court abused its discretion when it refused to allow the petitioner to present his witnesses. Because the answer to the second question requires that petitioner be granted a new trial, we shall not address the first question presented.
The Court of Special Appeals provided the following account of the events that led to these proceedings:
Kelly, 162 Md.App. at 127-29, 873 A.2d at 436-37. During trial, the State presented, without the court requiring a prior proffer of each witness's testimony, testimony from twelve witnesses, one of whom testified through a videotaped deposition. At the close of the State's case, the court sent the jury on a fifteen minute recess. Petitioner then moved for judgment of acquittal and the court denied the motion. The court asked whether petitioner's witnesses were ready. Petitioner's counsel stated that she planned to call two witnesses. The first witness she had planned to call was Officer Patel, who had been subpoenaed and was somewhere in the building ready to be paged when needed. The second witness was Officer Wells, whom petitioner's counsel had unsuccessfully attempted to serve with a subpoena.
The State initially objected to Officer Patel as a witness only because the petitioner's counsel had not included the officer on the witness list presented to the jury. The court stated that the witness list issue could be resolved after it was determined where the witnesses were. At that time, petitioner's counsel and the court discussed Officer Wells's testimony:
"[Petitioner's counsel]: . . . I really want to call Officer Wells and I want to call Officer Patel, but those are my two primary witnesses that I want to call for very specific reasons.
. . .
THE COURT: Do you know anything about Wells, whether he is or —
[State]: No.
[State]: — direct bearing.
THE COURT: — proffer to me what his . . .
[Petitioner's counsel]: He responded to the scene of the crime and did a number of interviews with other eyewitnesses.
THE COURT: Who have testified?
[State]: No.
[Petitioner's counsel]: — I don't have witness statements signed by them. I have notes from his part of the investigation, saying who he talked to and what they said.
THE COURT: But how would that be admissible unless those persons are also available, because what they said would be hearsay wouldn't it?
[Petitioner's counsel]: Well, it would be hearsay, just like the description of my client is hearsay and came in all through the trial.
THE COURT: But does it recognize the exception —
[State]: That's right.
THE COURT: — as we have discussed with that?
[Petitioner's counsel]: Right, because they actually arrested him, but I think I am entitled to show that they had other information that they didn't follow up on, particularly since some of it would refute the validity of the description given that led to my client.
THE COURT: But, one, that would assume that Wells did or didn't follow up on it; and two, it would assume that Wells didn't give the information to anybody else and that nobody else followed up on it and that Wells would know whether or not somebody else did or didn't follow up on it. He is not the lead investigator.
[Petitioner's counsel]: No, and the lead investigator said he didn't follow up on anything. So we know that.
[State]: That is not true.
[Petitioner's counsel]: He said he didn't follow up on any other witness information, is what he said."
The court then gave petitioner's counsel the remainder of the recess to determine the status of the witnesses.7 When the court reconvened, Officer Patel was present and was told to wait outside of the courtroom to be called. Petitioner waived his right to testify and prepared to call Officer Patel. Before the jury was called back into the courtroom,...
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