Kelly v. State, 1444

• Decision Date: 02 May 2005
• Docket Number: No. 1444,1444
• Citation: 162 Md. App. 122,873 A.2d 434
• Parties: Francesco Alexjandre KELLY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

873 A.2d 434

162 Md. App. 122

Francesco Alexjandre KELLY v. STATE of Maryland.

No. 1444, September Term, 2003.

Court of Special Appeals of Maryland.

May 2, 2005.

Michael P. Lytle (Byron L. Warnken, on the brief), Baltimore, for appellant.

Devy Patterson Russell (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Panel: SALMON, BARBERA and LAWRENCE F. RODOWSKY (Retired, specially assigned), JJ.

BARBERA, J.

On May 22, 2003, a jury in the Circuit Court for Montgomery County convicted appellant, Francesco Alexjandre Kelly, of two counts each of attempted first degree murder, attempted second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. The court merged the first degree assault conviction into the attempted first degree murder conviction and sentenced appellant to a total of 40 years' imprisonment on the remaining convictions.¹

Appellant seeks reversal of his convictions on several grounds. Principal among them is the claim that he was denied the right to be present at every stage of the trial. Finding no cause to disturb the judgments, we affirm.

FACTUAL BACKGROUND

The tragic events of this case began to unfold around 11:00 p.m. on October 31, 2002. At that time, Ibrahim Sidibe, his fiancee, Melissa Wainwright, and Sidibe's best friend, Nicholas Watson, were riding together on a public transit bus. They were on their way home from City Place Mall, in Silver Spring, Maryland, where Sidibe had been performing as the character Spiderman at a children's Halloween party.

During the bus ride, Wainwright noticed appellant seated across from them, wearing headphones and "bobbing his head up and down," evidently in time with the music. Wainwright made a remark about appellant that caused Watson and others on the bus to laugh. Appellant responded with a derogatory comment about Wainwright, precipitating an angry exchange between Watson and appellant. The episode ended within a minute and a half, without further trouble at that time.

Shortly thereafter, Sidibe, Wainwright, and Watson got off the bus at the stop in front of a 7-Eleven Store in the White Oak area of Silver Spring. Appellant remained on the bus, but he and Watson made "eye contact" as Watson left the bus.

The three friends went into the 7-Eleven to get something to eat and drink, then returned to the bus stop to await the arrival of the next bus. Sidibe was wearing his headphones and stood about 12 to 15 feet away from Watson and Wainwright. After ten minutes or so, Wainwright and Watson heard a gun shot.

Wainwright, who was six months pregnant at the time, turned and recognized the shooter as the person about whom she had made the comment on the bus. She took off running in the direction of the 7-Eleven, hearing additional gun shots as she ran. Wainwright fell twice in her efforts to get to the store, but was able to reach it and get inside without being injured.

Watson did not immediately flee upon hearing the gun shot. Instead, he turned in the direction of Sidibe in time to see him fall to the ground. Watson saw a "shadowy figure" standing above Sidibe and pointing a gun directly at Sidibe. The figure lifted his head and pointed the weapon at Watson. Watson saw that it was "the kid from the bus," i.e., appellant.

Watson took off running toward the 7-Eleven. Appellant fired at Watson as he ran, shooting him six times, once each in the arm, the back of his head, the right buttock, the right middle finger, the shoulder, and the chest. Watson was able to reach the store, and urged the store clerk to call the police or an ambulance. The police and emergency medical personnel arrived shortly thereafter.

Watson and Wainwright described the shooter to the police. The description was broadcasted to officers in the area. Shortly thereafter, the police stopped appellant at a location about a mile from the scene of the shooting. The police transported Wainwright to that location for a show-up. Wainwright identified appellant as the shooter. Appellant was then arrested and taken to the police station.

At the hospital several hours after the shooting and after emerging from surgery, Watson was shown a photographic array that included a photograph of appellant taken earlier that night at the police station. Watson selected appellant's photograph as depicting the shooter.

Sidibe, who was paralyzed as a result of the shooting, was able to testify about the events on the bus and before the shooting, but was unable to describe the shooter or testify in detail about the shooting itself. He did testify, however, that he had been shot in the forehead, and injured his neck when he fell to the ground.

Both Watson and Wainwright identified appellant at trial as the person who had been on the bus with them and later shot Watson and Sidibe.

Following conviction and sentencing, appellant noted a timely appeal, raising four issues:

1. Whether the court committed reversible error when it refused to permit appellant to be present at a bench conference to discuss an alleged discovery violation.

2. Whether the court committed reversible error when it refused to permit the defense to call two witnesses who were present and available to testify.

3. Whether the court committed reversible error when it refused the defense request to poll the jury and, instead, required the jury to re-deliberate, after the foreperson twice announced a "not guilty" verdict on attempted second degree murder.

4. Whether the court committed reversible error when it accepted "guilty" verdicts on a greater offense after the jury rendered "not guilty" verdicts on lesser included offenses.

We shall add facts as they pertain to our discussion of each issue.

DISCUSSION

I.

Appellant's first argument implicates the right of a criminal defendant under the Sixth and Fourteenth Amendments to the United States Constitution, Maryland's common law, its Declaration of Rights, and its Rules of Procedure, to be present at every stage of the trial. Appellant contends that the trial court denied him this right when it refused his counsel's request that he be present for a conference concerning whether the State had committed a discovery violation. We conclude that the court correctly ruled that appellant was not entitled to be present at that conference.

A. Setting the stage

Defense counsel brought the alleged discovery violation to the attention of the trial court, the Honorable Michael D. Mason, during a break in proceedings after the jury was selected but before it was sworn. In the presence of appellant, defense counsel informed the court that the State had included one Christian Phillips on its witness list. Counsel reported that she had asked the prosecutors about Phillips's identity and was told that he was a "jailhouse snitch" who had come to the State's attention two weeks before trial. The prosecutors told defense counsel that Phillips was prepared to testify that appellant confessed to Phillips his involvement in the shootings. Defense counsel denied receiving any information about Phillips before trial and objected to the State's calling him as a witness.²

The prosecutors in turn explained that they had learned of appellant's statement to Phillips through Phillips's counsel. After interviewing Phillips, they informed defense counsel by letter that he might be called as a witness. Defense counsel denied receiving the letter. Before the matter was resolved, the prosecutors said that they had not yet decided whether they would be calling Phillips to testify. The court therefore tabled further discussion until such time as the State decided that it wanted Phillips to testify.

The jury was sworn soon thereafter and trial began. On the evening of the second day of trial, after the jury had been excused for the day, the prosecutors notified the court that the State wanted Phillips to testify. The defense again objected. As the court prepared to take up the issue, defense counsel asked that appellant, who was then still in the courtroom, be permitted to be present for the discussion. The court denied the request, reasoning that no testimony would be taken; the question for decision was simply whether, based on the State's proffer of what Phillips might say, the State would be permitted to call him; and, if Phillips were permitted to testify, appellant would have his right of cross-examination. The court then told the sheriffs that they could "take [the defendant] because it is close to 6:00."

The discussion turned to whether and when the State had informed the defense that Phillips might be a State's witness. While explaining how Phillips had come to the State's attention, the prosecutors proffered what he would say if permitted to testify.

The defense again disputed the State's assertion that it had informed the defense promptly upon learning that Phillips might be a State's witness. Defense counsel argued that it was "patently unfair" to allow the State to call Phillips, pointing out that the defense had been given no opportunity to interview him.

The court ruled that Phillips could testify, but only after the defense had a chance to speak with him. The court and counsel then discussed the extent to which Phillips could be impeached with prior convictions. When that issue was resolved, the conference ended. The defense interviewed Phillips before he testified on the following day.

B. The Constitutional and Common Law Principles Involved

The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." The right of confrontation is made applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and encompasses the right of the criminal defendant "to be present in the courtroom at every stage of his trial,"...