Markham v. State, No. 424, September Term, 2008.

CourtCourt of Special Appeals of Maryland
Writing for the CourtGraeff
Citation984 A.2d 262,189 Md. App. 140
PartiesDavon Nathan MARKHAM v. STATE of Maryland.
Decision Date25 November 2009
Docket NumberNo. 424, September Term, 2008.
984 A.2d 262
189 Md. App. 140
Davon Nathan MARKHAM
v.
STATE of Maryland.
No. 424, September Term, 2008.
Court of Special Appeals of Maryland.
November 25, 2009.

[984 A.2d 264]

Brian L. Zavin (Nancy S. Forster, Public Defender, on brief), for Appellant.

Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: HOLLANDER, GRAEFF, JAMES A. KENNEY, III, (Retired, Specially Assigned), JJ.

GRAEFF, J.


A jury sitting in the Circuit Court for Prince George's County convicted Davon Nathan Markham, appellant, of two counts of first degree murder, one count of attempted murder, and three counts of use of a handgun in the commission of a felony. The court imposed consecutive sentences of life without the possibility of parole for each of the first-degree murder convictions, life for the attempted murder conviction, and 20 years for each of the three convictions for use of handgun in the commission of a felony.

Appellant presents the following four issues on appeal, which we quote:

1. Did the trial court err by granting the State's motion to close the courtroom during the testimony of a witness based on the State's proffer that the witness had been threatened by a member of Appellant's family who was not even present during trial?

2. Did the trial court err by denying Appellant's motion to exclude the testimony of the State's fingerprint expert as a result of a discovery violation or, in the alternative, Appellant's motions to compel discovery and to hold a Frye-Reed hearing?

3. Was Appellant tried in violation of Criminal Procedure Article § 6-103 and Maryland Rule 4-271?

4. Was the evidence sufficient to convict Appellant of the murder of Duane Nichols and the use of a handgun in the commission of that crime?

For the reasons set forth below, we shall reverse the judgments of the circuit court and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On June 28, 2007, appellant was indicted, in the Circuit Court for Prince George's County, for the murder of Michael Lamont Stewart and Duane Edward Nichols, attempted murder of Darryl Fitzgerald, and three counts of use of a handgun in the commission of a felony. Trial was initially scheduled for December 11, 2007. Appellant filed a motion for continuance to allow for an evaluation regarding his competency and his plea of not criminally responsible by reason of insanity. Trial was reset for Monday, January 28, 2008.

On January 25, 2008, the State was advised, and then informed appellant, that

984 A.2d 265

fingerprints on the vehicle in which Michael Stewart was shot had been identified as appellant's fingerprints. Appellant promptly moved to exclude the recently-obtained fingerprint evidence. The court denied the motion. Appellant then moved to continue the trial. Counsel for appellant explained that, due to the late disclosure of the fingerprint evidence, he was not prepared to proceed with trial on the following Monday. He requested that the trial be moved to February 4, 2008, and he informed the judge that he could be ready to try the case on that day.

On January 30, 2008, appellant filed three motions. First, appellant "renewed" his motion to exclude the "last-minute fingerprint evidence," arguing that "[t]he continuance of the trial by a single week is an inadequate remedy for the extraordinarily late revelation of such important and complex evidence in a case involving first degree murder allegations as well as a charge of attempted first degree murder." Second, in the event that the court again denied the motion to exclude the evidence, appellant filed a motion requesting a Frye-Reed hearing, arguing that there "is no scientific basis for fingerprint examiners to opine as to `individualization' or `matches.'" Third, appellant filed a Motion to Produce Records Regarding Fingerprint Analysis. On February 1, 2008, appellant filed a Motion to Compel Discovery "in light of the State's belated revelation of fingerprint evidence...."

On February 4, 2008, the trial date, the State filed an opposition to defendant's motion to exclude the testimony of the fingerprint examiner and his request for a Frye-Reed hearing. The court held a hearing on appellant's pretrial motions concerning the newly-discovered fingerprint evidence. With respect to his request for the exclusion of the evidence, appellant argued that the late disclosure prevented him from securing an expert witness and adequately preparing for cross-examination of the fingerprint examiner. He further argued that it forced him to "choose between his right to a speedy trial within [Hicks] and his right to a fair trial...."

The State responded that it had arranged for counsel for appellant and her expert witness to meet with and question the fingerprint examiner, Merina Davis. It further argued that it had consented to all requests for a continuance. With respect to the delay in notifying appellant of the fingerprint evidence, the State advised that it asked for appellant's prints to be examined in August 2007. On December 28, 2007, however, Ms. Davis notified the State that she was never given the known fingerprints of appellant. Thereafter, on January 15, 2008, Corporal Shawn Jones, an employee at the Prince George's County Department of Corrections, captured appellant's finger and palm prints. That same day, Sergeant Ted Jones, an employee of the State's Attorney's Investigative Unit, picked up and delivered the prints to the Fingerprint Examination Unit for Prince George's County. At no point, the State argued, was there any act of intentional deception or of actual negligence.

The court denied the motion to exclude the testimony of the fingerprint examiner and the motion to compel discovery, stating that it was "satisfied that the State has provided the documentation and information in the discovery pursuant to [Maryland Rule 4-263.]" The court noted that appellant "had an opportunity to go and interview and examine the expert." It also found significant that appellant had access to this information, and a similar motive to uncover it, because he was planning on calling the same expert in his case-in-chief.1

984 A.2d 266

Appellant then asked the court to "grant leave for a Frye-Reed hearing," arguing that this hearing was necessary to "force the State to meet it's [sic] burden to show that the methodology used by this latent print examiner in this case ... is the methodology generally accepted in the community." The State responded that the ACE-V method2 "clearly is generally accepted within the field," and "[t]herefore, it would literally be a waste of the Court's time [ ] to hold a Frye-Reed hearing...." The court denied appellant's motion for a Frye-Reed hearing, finding that the ACE-V methodology "is a generally accepted method of fingerprint analysis that is in the scientific community."

After the court ruled on the pre-trial motions, the court conducted voir dire and the jury was chosen. The next day, February 5, 2008, before opening statements, appellant moved to dismiss the proceedings for a violation of Hicks,3 arguing that the Hicks deadline had expired the day before. Appellant maintained that the Hicks date is the swearing in of the jury or the first submission of evidence. He argued that, because the proceedings the previous day ended before the jury was sworn, and there had been no attempt by the State to seek or obtain a good cause postponement by which the Hicks date could be exceeded, his charges must be dismissed. The court denied the motion to dismiss.

Darryl Fitzgerald was called as a witness for the State. He testified that, on the evening of April 29, 2007, he and his brother, Jeremiah, were driving around the Fairmont Heights Section of Capitol Heights, Maryland, looking for their crack-addicted uncle. The men stopped at a house, 1307 Early Oaks Lane, a known "drug area" where his uncle previously had "hung out."

While Jeremiah knocked on the door, Mr. Fitzgerald walked across the street to say hello to Michael Stewart, a man whom Mr. Fitzgerald had "dealings with," but did not know by name, who was sitting in his Black Cadillac. Mr. Fitzgerald then walked back toward his car and leaned on the hood of his trunk. Jeremiah walked over to Mr. Fitzgerald, handed Mr. Fitzgerald a cell phone, and said that their cousin was calling.

While on the phone with his cousin, Mr. Fitzgerald heard "about five or more" gunshots from behind him, and he turned around to see a person firing into Mr. Stewart's car. Mr. Fitzgerald was shot once in the back of his head and three times in his left arm. Despite his injuries, Mr. Fitzgerald drove himself to the hospital.

At the time of the trial, Mr. Fitzgerald could not recollect if the police had visited him while he was at the hospital. He did recall that he spoke to a police officer on May 3, 2007, the day he was released from the hospital, and he signed a written statement that the police transcribed for him.4 At that time, he told the police that "a guy by the name of Fat Man shot me." He also identified a photograph of "Fat Man" as the person who shot him, and he identified a photograph of appellant's twin

984 A.2d 267

brother, who Mr. Fitzgerald described as a friend. At trial, Mr. Fitzgerald identified appellant, "Fat Man," as the person who shot him and Mr. Stewart.

Officer Robert Turner, a 15-year-member of the Prince George's County Police Department and the lead investigator on the case, testified that he met with Mr. Fitzgerald on April 30, 2007, at the hospital, and on May 3, 2007, after Mr. Fitzgerald was released from the hospital. On the second occasion, Officer Turner showed Mr. Fitzgerald a picture of appellant's twin brother, Dawon Markham, who Mr. Fitzgerald identified as "the guy who pushed the brother who was shooting." Officer Turner also showed Mr. Fitzgerald a photograph of appellant. Mr. Fitzgerald stated: "That's who shot me and he shot the guy in the car." Officer Turner wrote Mr....

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29 practice notes
  • Jones v. State, No. 1106
    • United States
    • Court of Special Appeals of Maryland
    • 27 Junio 2014
    ...“vouches” for (or against) the credibility of a witness.’ ” (quoting Spain, 386 Md. at 153–54, 872 A.2d 25)). 9.See Markham v. State, 189 Md.App. 140, 168–69, 984 A.2d 262 (2009) (noting that despite the reversal of the appellant's convictions, we had to address his contention relating to t......
  • People v. Morris, Docket No. 1–11–1251.
    • United States
    • United States Appellate Court of Illinois
    • 1 Noviembre 2013
    ...argument that latent print analysis was not a generally accepted methodology within the scientific community. Markham v. State, 189 Md.App. 140, 984 A.2d 262, 274n.7 (Md.Ct. Spec. App. 2009). Accordingly, there is no authority in Illinois, or in any other state, to support the claim that it......
  • People v. Luna, Docket No. 1–07–2253.
    • United States
    • United States Appellate Court of Illinois
    • 25 Abril 2013
    ...Commonwealth v. Gambora, 457 Mass. 715, 933 N.E.2d 50, 55–61 (2010) (reaffirming its earlier decision in Patterson );Markham v. State, 189 Md.App. 140, 984 A.2d 262 (2009) (taking judicial notice of general acceptance of latent fingerprint analysis in case involving a palm print); Barber v.......
  • Hicks v. State, No. 2591, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • 25 Noviembre 2009
    ...the purpose for which it was originally designed."); United States v. York, 830 F.2d 885, 891 (8th Cir.1987) (concluding, where gun was 984 A.2d 262 missing its firing pin and where its cylinder did not line up with gun barrel, that gun remained "`designed to ... expel a projectile by the a......
  • Request a trial to view additional results
29 cases
  • Jones v. State, No. 1106
    • United States
    • Court of Special Appeals of Maryland
    • 27 Junio 2014
    ...“vouches” for (or against) the credibility of a witness.’ ” (quoting Spain, 386 Md. at 153–54, 872 A.2d 25)). 9.See Markham v. State, 189 Md.App. 140, 168–69, 984 A.2d 262 (2009) (noting that despite the reversal of the appellant's convictions, we had to address his contention relating to t......
  • People v. Morris, Docket No. 1–11–1251.
    • United States
    • United States Appellate Court of Illinois
    • 1 Noviembre 2013
    ...argument that latent print analysis was not a generally accepted methodology within the scientific community. Markham v. State, 189 Md.App. 140, 984 A.2d 262, 274n.7 (Md.Ct. Spec. App. 2009). Accordingly, there is no authority in Illinois, or in any other state, to support the claim that it......
  • People v. Luna, Docket No. 1–07–2253.
    • United States
    • United States Appellate Court of Illinois
    • 25 Abril 2013
    ...Commonwealth v. Gambora, 457 Mass. 715, 933 N.E.2d 50, 55–61 (2010) (reaffirming its earlier decision in Patterson );Markham v. State, 189 Md.App. 140, 984 A.2d 262 (2009) (taking judicial notice of general acceptance of latent fingerprint analysis in case involving a palm print); Barber v.......
  • Hicks v. State, No. 2591, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • 25 Noviembre 2009
    ...the purpose for which it was originally designed."); United States v. York, 830 F.2d 885, 891 (8th Cir.1987) (concluding, where gun was 984 A.2d 262 missing its firing pin and where its cylinder did not line up with gun barrel, that gun remained "`designed to ... expel a projectile by the a......
  • Request a trial to view additional results

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