Malik v. State

• Decision Date: 08 September 2003
• Docket Number: No. 2487,2487
• Citation: 831 A.2d 1101,152 Md. App. 305
• Parties: Tariq MALIK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

831 A.2d 1101

152 Md. App. 305

Tariq MALIK v. STATE of Maryland.

No. 2487, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 8, 2003.

Michael R. Malloy, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before SONNER, KENNEY and RAYMOND G. THIEME, JR. (Retired, specially assigned), JJ.

SONNER, J.

A jury in the Circuit Court for Baltimore City convicted appellant, Tariq Malik, of murdering five women in December, 1999. The circuit court sentenced Malik to what amounted to six consecutive life sentences, eight consecutive twenty-year sentences, and a consecutive thirty-year sentence. Malik presents five questions for our review.

I. Did the lower court err by denying Malik's motion to dismiss for violations of his right to a speedy trial?

II. Did the lower court err by granting the State's motion to exclude evidence tending to implicate Ronald McNeil in the murders and McNeil's statements implicating persons other than Malik?

III. Did the lower court err by denying Malik's motions for mistrial because of emotional outbursts by prosecution witnesses against Malik?

IV. Did the lower court err by refusing to instruct the jury on a theory of second degree murder?

V. Did the lower court err by allowing more than one conspiracy conviction?

We hold that Malik's first three challenges are without merit and affirm on those points. The court, however, erred in failing to instruct the jury on second degree murder and erred in failing to merge Malik's various conspiracy convictions. Consequently, we vacate Malik's convictions for first degree premeditated murder and the sentences attached to those convictions. We also vacate Malik's conviction for conspiracy to commit murder, and leave his remaining conspiracy convictions for appropriate action by the circuit court.

Factual Background¹

On the evening of December 5, 1999, Alvin Thomas arrived at the residence of his business partner, Adrian "Pie" Jones. Thomas and Jones operated a dinner business out of Jones's house in Baltimore City. As Thomas got out of his Nissan Maxima, Ismail Wilson and Robert Bryant grabbed him and took him into the basement. Travon McCoy and appellant, Malik, were also in the basement, and all four men were armed.

McCoy, Malik, Wilson, and Bryant demanded that Thomas give them drugs and money, while the four took his jewelry, jacket, cell phone, and pager. The four men next forced Thomas to call another business associate, Darnell Collins, because the four hoped to lure him to a nearby McDonald's restaurant and take his drugs and money as well. Before ambushing Collins, however, the four decided to go to the home of Mary McNeil Matthews ("Lo"), Thomas's sister, a person they knew to be a drug dealer, because they had conducted several drug transactions at her house. They believed large quantities of drugs and money were there for the taking.

At gunpoint, the four forced Thomas back into his Maxima, and the five drove to his sister's house at 3535 Elmley Avenue in Baltimore City. In order to get into the house, the four propped Thomas up at the door and rang the doorbell. Makisha Jenkins², Thomas's niece and Lo's daughter, opened the door and all five men entered the house. According to the trial testimony, once inside, the four men began assaulting Thomas's half-brother, Ronald McNeil. Also in the house at this time was Levanna Spearman, who was the girlfriend of Thomas's nephew.³ After the four discovered that Lo was not there, they forced Thomas to call her and have her come home. About twenty minutes later, Lo arrived with Mary Collein, who was Thomas's mother, and Trennell Alston, the girlfriend of Ronald McNeil's son.

Bryant demanded that Lo give him drugs and took her upstairs. When they returned, Bryant was shoving money into his pockets. Ronald, Collein, Lo, Jenkins, Spearman, and Alston were then gathered in the basement. Bryant and Wilson forced Thomas out of the house, and Wilson remained with Thomas in his Maxima, while Bryant returned to the house. Just after Bryant returned, Thomas heard gunshots and then saw Bryant, Malik, and McCoy leave the house and return to the Maxima.

The four men and Thomas then drove to the McDonald's to meet Collins and, on the way, Bryant asked, "Who capped Lo?," and McCoy responded that he had. Collins arrived at the McDonald's a few minutes after Thomas and his abductors. Upon seeing Thomas with Wilson, Collins ran into the McDonald's. Wilson got a gun from Bryant and chased Collins. Working his second job, providing security at the restaurant, was off-duty police officer Warren Brooks. When he saw Bryant chasing Collins with the gun, he fired a shot at Wilson, which, although it missed, caused Wilson to flee from the scene and drop the gun.

Meanwhile, Thomas, at the behest of Bryant, was searching Collins's car for drugs and money. Thomas found an article of clothing, which he threw in Bryant's face and escaped by running into a nearby bar, the Dejavue Lounge, where he told an employee that someone had tried to rob him and was chasing him. Someone in the lounge called 911, and when police arrived, they took Thomas away.

The police investigation began at the residence where Thomas heard the gunshots; there they found all five women shot to death. Collein's body was in the kitchen and the other four women were in the basement. When police arrived, Ronald was at the house and was extremely emotional. After speaking with the officers, he began to scream that they were not doing enough. Because of his combative behavior, police handcuffed him and took him to the station, where they conducted a gunshot residue test, which came back positive. Police recovered ammunition, including spent cartridge cases, expended bullets, and live cartridges for a shotgun. Subsequent autopsies showed that some of the women had been shot with a shotgun and some with a handgun.

Police also conducted a search of Jones's home, the place were the events of December 5th began. In a room that Malik had occupied, officers found two boxes of different ammunition, and paperwork in the name of Malik, Bryant, and Wilson. James Waxter, a firearms identification expert, testified that some of the bullets fired at the house came from the gun discarded by Wilson at the McDonald's, and the spent shotgun shells matched those seized from Malik's room at Jones's house. Charles Peters, an F.B.I. agent, testified that metallurgical analysis of the bullets at the scene indicated that they either came from the ammunition boxes seized from Malik or from boxes manufactured at the same time.

Police arrested Malik on December 6th, when he arrived at a house that police were searching. The house was occupied by Rochelle Dorsey, who had helped Malik and Bryant get rooms at a Pulaski Highway motel on the night of December 5th. Police found a bag of jewelry at Dorsey's house and seized a ring from Dorsey that Bryant had given her, which they later determined to have been stolen during the murders.

Discussion

I.

Malik's first contention is that the circuit court erred in not dismissing his case for violation of his right to a speedy trial, as protected by the Sixth Amendment. This right does not entitle a defendant to an immediate trial, because the law permits reasonable time for normal preparation of the prosecution and the orderly processing of a case. Fuget v. State, 70 Md.App. 643, 649-50, 522 A.2d 1371 (1987). When a pretrial delay is "presumptively prejudicial," however, we employ a balancing test to determine whether the right of the defendant to a speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors employed in the balancing test are: (1) the length of the delay; (2) the reasons for the delay; (3) the time when the defendant asserted the right to a speedy trial; and (4) the prejudice to the defendant. Id.; see also State v. Henson, 335 Md. 326, 332, 643 A.2d 432 (1994). "Because whether a period is presumptively prejudicial, or not, depends upon the length of a pre-trial delay, the first factor `is to some extent a triggering mechanism.' "Henson, 335 Md. at 332-33,643 A.2d 432 (citation omitted).

A. Presumptively Prejudicial Delay

Malik was arrested on December 6, 1999, and his trial finally began on November 8, 2001. This was a delay of twenty-three months, because we measure the length of delay from the date of arrest to the date of trial. State v. Gee, 298 Md. 565, 568, 471 A.2d 712 (1984); see also Henson, 335 Md. at 333-40, 643 A.2d 432 (discussing how a delay should be calculated when a prosecution has been instituted, terminated, and than reinstated). As the complexity of a case increases, so does the tolerable delay before a presumptive prejudice finding. See Barker, 407 U.S. at 530-31, 92 S.Ct. 2182; see generally Dalton v. State, 87 Md.App. 673, 686, 591 A.2d 531 (1991). Even with the complexity of issues present in this case, we believe that a delay of twenty-three months was presumptively prejudicial, triggering the Barker balancing test. See Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (holding that an eight-and-one-half year lag between indictment and arrest clearly triggered the Barker analysis); State v. Ruben, 127 Md.App. 430, 440, 732 A.2d 1004, cert. denied, 356 Md. 496, 740 A.2d 613 (1999) (finding a delay of eleven months "barely" of constitutional dimension, but nonetheless sufficient to trigger the Barker analysis).

B. Reasons for Delay

"Closely related to the length of delay are the reasons for delay." Dalton, 87 Md.App. at 686, 591 A.2d 531. As the Supreme Court stated in Barker:

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral

...