Lomax v. State, 22
| Decision Date | 26 January 2018 |
| Docket Number | No. 22,No. 208,22,208 |
| Parties | MARLO LOMAX v. STATE OF MARYLAND GARY WARD v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City
Case Nos. 115236041, 115236042, 115236043, and 115236044
UNREPORTED
Opinion by Arthur, 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.
Appellants, Marlo Lomax and Gary Ward, were charged with a variety of offenses arising out of the shooting of Ebron Richmond and Unique Muhammad in Baltimore City. Lomax and Ward were tried together.
A jury found Lomax guilty of the attempted first-degree murder of Richmond, conspiracy to murder Richmond, use of a handgun in the commission of a crime of violence against Richmond, first-degree assault against Muhammad, and use of a handgun in the commission of a crime of violence against Muhammad. The jury found Ward guilty of conspiracy to murder Richmond, first-degree assault against Muhammad, use of a handgun in the commission of a crime of violence against Muhammad, and possession of a firearm after being convicted of a felony.
The court sentenced Lomax and Ward to aggregate, unsuspended sentences of 60 years and 55 years respectively. They appealed. Finding no error, we affirm.
At around 9:22 p.m. on July 21, 2015, Richmond was waiting for Muhammad at a bus stop in the 5200 block of York Road in Baltimore. As Muhammad was approaching the bus stop, two men, one dressed in black and the other in gray, came from across the street and opened fire.
Muhammad was shot once, in her leg. Richmond was shot five times - once in the face, once in his hand as he attempted to shield his face, once in the back of the head, and twice in his arm. As a result of the shooting, he lost a finger and suffered damage to his vision and his cognitive faculties.
After Richmond was shot, he attempted to flee, but abandoned his attempt after a few feet, believing that it was futile. Despite his wounds, Richmond remained conscious and observed the assailants get in a "silver . . . or champagne colored four-door car" and drive off. He later testified that he had had "some words" with the defendants about Muhammad, "the girl [he] was with," and believed that this was the motivation for the shooting.
On the evening of the shooting, while Richmond was in the hospital, Detective Hawk showed him some still photos that the detective had pulled from the video-surveillance footage of businesses in the vicinity of the crime. The photos were of two men, one in a black hoodie, the other in gray. Richmond identified them as the shooters, but was unable to give the detective their names.
On July 28, 2015, seven days after the shooting, Detective Hawk and Detective Grubb visited Richmond in the hospital. Outside the presence of Detective Hawk, Detective Grubb showed Richmond a photo array, using a double-blind procedure: Detective Grubb himself had not created the array, did not know the identity of the suspect, and did not know the position of the suspect's photo in the array. Richmond identified Lomax as one of the shooters. Upon seeing Lomax's photo, Richmond stated:
Finally, on August 12, 2015, Detective Hawk and his partner, Detective Nickles, went to Richmond's home to show him another photo array, again employing a double-blind procedure. This time, Richmond identified Ward as one of the shooters. BelowWard's photo, he wrote:
Both men were subsequently arrested and charged.
On direct examination, Richmond unequivocally testified that Lomax shot him in the face from approximately 10 feet away and that Ward also "took a shot" at him. As the State showed Richmond the video-surveillance footage, he identified Lomax as the man wearing a black shirt and Ward as the man wearing the gray hoodie. He testified that he had picked out both of the defendants from the photo arrays, and he identified both of them in the courtroom. He reiterated his earlier statement that Lomax was the "son of a bitch" who shot him, and he testified that he had clearly seen Ward's face and that Ward had shot at him and Muhammad.
In cross-examination, however, defense counsel exposed a number of flaws and deficiencies in Richmond's testimony. Richmond was unable to remember many of the statements he made to Detective Hawk at the hospital on the night of the shooting, nor did he remember being shown a photo array while at the hospital. In addition, Richmond could not recall initially telling the police that Lomax had a black revolver, as opposed to the silver gun that he described at trial. In Richmond's initial account, he claimed that he had grabbed Muhammad in an attempt to shield her from the attack, but that account was inconsistent with his trial testimony that she was five feet away from him when the shooting began. He believed that he had been in the hospital for more than two months after the shooting, but later conceded that he had been discharged after eight days. Healso believed that he had been shown one photo array when he was home, but later conceded (based on the date) that he had seen it when he was in the hospital. He had told the police that he managed to take a photograph of the shooters with his phone as they walked away, but was unable to find the phone when he awoke in the hospital. The defense stressed that these inconsistencies in Richmond's testimony made his identifications of the defendants unreliable.
The State called an FBI agent to analyze the cell phone data from Lomax's phone. The agent testified that Lomax's phone was in the vicinity of 5200 York Road before the shooting occurred. From approximately 9:00 p.m. to 9:30 p.m., the same cell phone was "either shut off or not in an area where there's service." However, at 9:48 p.m., Lomax's phone was either on again, or it had regained cell phone service. At that point, the phone was in the area of the shooting.
For reasons that are unexplained in the record, Muhammad did not testify at trial. The State did introduce photographs of her injuries, as well as her medical records.
Ultimately, the jury found Lomax guilty of the attempted first-degree murder of Richmond, first-degree assault on Muhammad, and several lesser charges. The jury acquitted Ward of attempted murder, but convicted him of conspiracy to murder Richmond, first-degree assault on Muhammad, and other lesser offenses.
We shall discuss additional facts as they become relevant to the issues on appeal.
In this consolidated appeal, Lomax and Ward present four issues, which we have rephrased as follows:
We conclude that Lomax has waived his challenge to the State's use of peremptory strikes. On the other issues, we find no error. Therefore, we affirm.
During voir dire, the State used six of its first seven peremptory challenges to remove African-American women from the jury. Lomax objected on the grounds that these strikes were unconstitutionally based on race and gender, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The circuit court overruled the objection, finding that Lomax had not established a prima facie case of discrimination. Later, when the clerk asked Lomax whether the panel was acceptable, he did not renew his Batson objection, but instead answered in the affirmative.
As Lomax concedes, "a defendant's claim of error in the inclusion or exclusion of a prospective juror or jurors 'is ordinarily abandoned when the defendant or his counsel indicates satisfaction with the jury at the conclusion of the jury selection process." Gilchrist v. State, 340 Md. 606, 617 (1995) (quoting Mills v. State, 310 Md. 33, 40 (1987), vacated on other grounds, 486 U.S. 367 (1988)). "When a party complains aboutthe exclusion of someone from or the inclusion of someone in a particular jury, and thereafter states without qualification that the same jury as ultimately chosen is satisfactory or acceptable, the party is clearly waiving or abandoning the earlier complaint about that jury." Id. at 618. It would appear, therefore, that Lomax has waived his Batson challenge.
Lomax counters that his counsel substantially complied with the obligation to preserve an objection. Alternatively, he argues that if counsel waived the Batson issue, he received ineffective assistance of counsel. We find neither argument persuasive.
Lomax has cited no case holding that a criminal defendant can "substantially comply" with the obligation to preserve a Batson objection by objecting to the State's use of peremptory strikes during jury selection, but accepting the jury panel after it has been selected. He borrows the concept of "substantial compliance" from the rules pertaining to objections to jury instructions.
Under Rule 4-325(e), "[n]o party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection." Nonetheless, "when the objection is clearly made before instructions are given, and restating the objection after the...
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