Lopez v. State
| Decision Date | 29 December 2022 |
| Docket Number | 1790-2021 |
| Parties | ULISES LOPEZ v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
ULISES LOPEZ
v.
STATE OF MARYLAND
No. 1790-2021
Court of Special Appeals of Maryland[**]
December 29, 2022
Circuit Court for Baltimore City Case No. 120167041
Leahy, Reed, Tang, JJ.
OPINION[*]
TANG, J.
On March 16, 2020, Sergio Jones was shot and killed in a residential area in Baltimore City. After a jury trial, Ulises Lopez, appellant, was convicted of second-degree murder, use of a firearm in the commission of a crime of violence, loaded firearm on a person, transportation of a firearm in a vehicle, and possession of a regulated firearm after a disqualifying conviction.
On appeal, appellant raises three questions which we have rephrased slightly:[1]
1. Where the prosecutor belatedly provided a recorded proffer session with a codefendant, did the trial court err in admitting the testimony of that witness
2. Did the trial court err in requiring appellant to wear jail-issued shoes at trial? 3. Did the trial court err in admitting marijuana-related testimony
For the reasons explained below, we shall answer each question in the negative and affirm the judgment of the circuit court.
BACKGROUND
On March 16, 2020, Baltimore City police officers responded to a shooting on the 400 block of South Lehigh Street. They located Sergio Jones, the victim, with multiple
gunshot wounds to his body. Mr. Jones died from his injuries. Certain residents of the area variously testified to hearing gunshots, observing Mr. Jones falling or laying on the ground thereafter, and/or seeing the shooter. One resident described the shooter as "tall, 165 height, dark hair, light skin" with a black t-shirt. This witness also testified to seeing a small, "silver looking" gun being used. The witness further observed that, after the shooting, the shooter entered a car with tinted windows, then later "noticed that the car . . . was no longer there. It had gone." Another resident did not see the shooter but saw someone running "back towards the alley after the shooting." Yet another resident, who did not witness the shooting, provided to the police security camera footage of the "incident they were canvassing for." The gunshots were audible on the footage, but the shooting itself was not visible.
The car observed by the witness was found a few minutes after the initial 911 call. A search of the vehicle, a 2010 Toyota Yaris, revealed a pill bottle in the glove compartment with appellant's fingerprints. While eight gun cartridge cases were recovered at the scene, no latent prints were recovered from them for comparison.
Appellant's co-defendant, Jerry Cruz, the driver of the vehicle, took a plea deal and then testified against appellant at trial. Mr. Cruz testified that, on the day of the shooting, he and appellant had "chilled" at appellant's house and "smoked a little bit of weed." Mr. Cruz then drove his father's Toyota, with appellant as a passenger, to a store on Eastern Avenue. After leaving the store, they drove back to appellant's house. On the way, Mr. Cruz stopped at a stop sign on Lehigh Street, and appellant said, "There's Sergio."
Appellant asked Mr. Cruz to "swing back around[.]" Mr. Cruz parked the car and appellant exited the vehicle. Mr. Cruz testified, "Next thing, I know, all I hear is gunshots, about seven gunshots." Appellant then ran back to the car with a silver gun in hand. As Mr. Cruz drove away, appellant said, "oh, he was a rat." Mr. Cruz then dropped appellant off at appellant's house and abandoned the car behind a school.
The following day, Mr. Cruz called the police and reported that his car had been taken in a carjacking at gunpoint. During an interview with detectives, Mr. Cruz admitted to lying about the carjacking, and identified appellant as the individual who killed Mr. Jones. Mr. Cruz was charged with first-degree murder, which carries a potential penalty of life imprisonment, but he pleaded guilty to accessory after the fact of first-degree murder, with a maximum ten-year sentence, in exchange for testifying at trial.
Additional facts will be supplied in the discussion as necessary.
DISCUSSION
I.
Appellant argues that the court erred in allowing Mr. Cruz's testimony at trial because the State violated the discovery rules by failing to timely disclose a proffer session recording with Mr. Cruz and that he would be testifying against appellant at trial.
Appellant and Mr. Cruz were scheduled to be tried jointly beginning on October 7, 2021. Prior to jury selection, with appellant's counsel present, the prosecutor informed the court that Mr. Cruz had taken the State's plea offer to plead guilty to one count of accessory after the fact, in exchange for his testimony at appellant's trial.
Appellant's counsel objected to Mr. Cruz testifying, stating:
. . . I would object to Mr. Cruz testifying in [appellant]'s trial because we are here today for specially set trial. We found - we, meaning, myself and [cocounsel], found out about this deal literally five minutes ago. We were handed this five minutes ago, which apparently is recorded proffer session between the State of Maryland and Mr. Cruz, so we haven't seen it obviously.
So this needed to [] have been disclosed two months ago when it happened. Also, any discussions between the State of Maryland and Mr. Cruz with his counsel needed to be disclosed prior to five minutes ago, we're here ready to trial.
The State explained that it had not previously disclosed the recording because "at least at the time, it was just the proffer session[,]" "there hadn't been any agreement made yet[,]" and it "took a very long time" to secure in-office approval of the agreement.
Defense counsel claimed that the belated disclosure amounted to "trial by surprise" and Mr. Cruz's anticipated testimony for the State "change[d] the posture of the [d]efense case." Defense counsel requested that the court strike Mr. Cruz's testimony because of the State's "late notice." The court denied that request, explaining, "if you're looking for a postponement, I think that would be the remedy. I don't see where you can . . . object to his testimony." Defense counsel stated that he was "not going to ask for a postponement," which he confirmed with appellant on the record:
[DEFENSE COUNSEL]: The judge has said that [Mr. Cruz is] going to be allowed to testify but [the judge] will entertain a postponement request if you think that more time is needed to sort of analyze this new piece of the case before we have a trial. Myself and [co-counsel], I think, we're ready to roll but ultimately, it's your call, it's your case. If you want to - if you think that we need more time to analyze this new piece of evidence before your trial, then I'll ask the[c]ourt for a postponement. And if not, then, then not, so what -
[APPELLANT]: I'm ready.
[DEFENSE COUNSEL]: You're ready to roll?
[APPELLANT]: Yeah.
[DEFENSE COUNSEL]: You don't want a postponement?
[APPELLANT]: (No audible response.)
[DEFENSE COUNSEL]: Okay. Then that's it.
THE COURT: Okay. All right. Obviously, we are ready to go. Let's call for a panel, please.
(Emphasis added).
Days later, just before Mr. Cruz testified, defense counsel renewed the objection and again moved to exclude Mr. Cruz's testimony:
[DEFENSE COUNSEL]: We've had an opportunity, obviously, since we've received the disk from the State to review it. Mr. Cruz did a what was described as a proffer session on August the 17th. Present was Mr. Cruz, Mr. Cruz's counsel . . . [the prosecutor] as well as [the detective] were there. Even though it was described as a proffer session, Mr. Cruz signed acknowledging that yes, in fact, he was participating as a witness for the State in this. He was going to answer their questions, et cetera. And that happened on August 17th.
So my objection is that should have been disclosed to me on August 18th or certainly well before trial[.] I think I recall [the prosecutor] saying in my initial objection that . . . the delay was because of some form of approval needed or something like that. But I don't agree - if approval was needed to effectuate the plea deal, which Mr. Cruz actually did before Your Honor, that's separate. The disclosure of this witness testimony, or this witness statement is . . . mandatory under the rules. I don't even have to ask for it. And we certainly didn't get it. And I don't think I would argue that getting it the morning of trial is not getting it before trial, certainly when the evidence or the statement was had two months prior to trial. And it was recorded and everything.
The State responded that it had previously disclosed another statement by Mr. Cruz that contained essentially the same statement he made at the proffer session:
[THE STATE]: [O]n March the 17th, 2020, Mr. Cruz was down at homicide and gave a recorded statement. In his recorded statement, he indicated that it was [appellant] who he had picked up in his car, driven to the 400 block of South Lehigh and that he committed the murder of Sergio Jones. And that statement was turned over to [defense counsel] long ago. And that is the essence of what is in the statement that he made during the proffer session of finding out - just solidifying what happened.
And so, [defense counsel] has had the information that Mr. Cruz has identified [appellant] as the shooter of Sergio Jones for more than a year. And so it - there is no surprise to what Mr. Cruz is going to testify to.
The court stated that the proffer "does qualify, though, as a witness statement" and had "to be disclosed without the necessity of a request." When asked why the State did not disclose it earlier, the prosecutor cited Mr. Cruz's safety. The court again overruled appellant's objection, explaining that "the proper remedy . . . was a postponement. [The court] offered [appellant] that...
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