Marks v. Criminal Injuries Comp. Bd..

• Decision Date: 29 October 2010
• Docket Number: No. 0921, Sept. Term, 2009.,0921, Sept. Term, 2009.
• Citation: 7 A.3d 665,196 Md.App. 37
• Parties: Malcolm J. MARKS v. CRIMINAL INJURIES COMPENSATION BOARD.
• Court: Court of Special Appeals of Maryland

7 A.3d 665

196 Md.App. 37

Malcolm J. MARKS

v.CRIMINAL INJURIES COMPENSATION BOARD.

No. 0921, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Oct. 29, 2010.

Russell P. Butler (Lauren B. Tabackman, MD Crime Victims' Resource Center, Inc., on the brief), Upper Marlboro, MD, for appellant.

Steven G. Hildenbrand (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: MEREDITH, GRAEFF and RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

RAYMOND G. THIEME, JR., J. (Retired, Specially Assigned).

This is a petition for judicial review by Malcolm J. Marks, appellant,¹ from the decision by the Circuit Court for Baltimore City affirming the denial of victim's compensation benefits issued by the Criminal Injuries Compensation Board. Although appellant presents a variety of questions for our consideration, at issue is whether the Board's decision is supported by substantial evidence based on the record as a whole, is not arbitrary and capricious, and whether it accords with applicable law.²

For the reasons set forth below, we shall affirm.

Procedural and Factual Background

This matter involves a claim by Malcolm Marks for victim's benefits under the Maryland Criminal Injuries Compensation Act ("Act"). Md.Code (2001 & 2008 Repl.Vol.), §§ 11-801 et seq. of the Criminal Procedure Article ("Crim.Proc.").³

Procedural History

On September 17, 2006, appellant was in Northeast Baltimore checking on his mother's property in the 1100 block of East 20th Street. At about 2:00 a.m., while he was leaving the unoccupied house, appellant was shot several times by CoreyHarrison. Appellant claimed that the assailant approached him and demanded money. Appellant suffered grievous injuries as a result and was hospitalized. He continues to experience the effects of the assault, claiming that his injuries require physical therapy.

On December 17, 2006, appellant filed a claim for victim's benefits with the Criminal Injuries Compensation Board ("Board"). On June 5, and June 26, 2007, the Board issued a "Tentative Decision" denying benefits. The decision was affirmed on July 12, 2007, by the Secretary, Department of Public Safety and Correctional Services ("Secretary").

Appellant filed a petition for judicial review in the Circuit Court for Baltimore City. A hearing was conducted on February 5, 2008, after which the circuit court issued an Order vacating the Board's decision and remanding for further proceedings. The circuit court directed the Board to "determine whether there exists enough credible and probative evidence to generate the issue that [appellant] engaged in conduct that contributed to the injuries he sustained on the occasion at issue." The circuit court added that, should the Board "conclude that this issue has been generated, the Board must afford Petitioner a full and fair opportunity at a hearing to prove that he did not contribute to the infliction of his injuries."

This hearing was conducted on September 24, 2008, and the Board issued a tentative decision on October 24 denying the claim. This denial was affirmed by the Secretary on November 17, 2008. Appellant again sought judicial review of the Board's decision, and on June 12, 2009, the circuit court upheld the Board's decision. This petition for judicial review followed.

Facts

Appellant testified at the hearing on behalf of his claim, and he also presented thesupporting testimony of Karen Marks, Lemuel Watson, and Anthony Ivory. The Board's witnesseswere Detective Frank Miller and Board Investigator Anita McKoy.

Appellant recounted that he would visit the neighborhood about two or three times per month to look after his mother's house. Because his mother mainly resides in New York, appellant would check on her property to "secure the dwelling," meet with the occasional tenant, and collect rent. On September 17, 2006, at about 9:00 or 10:00 p.m., appellant was at the house to "make sure all the doors were locked ... [and] all the windows were down." After going through the house, appellant was preparing to leave. He recounted what next occurred:

As I went to the front door, I opened the door, she has a security screen door. I locked the front door. And as I was securing the security gate and locking the security gate, it was kind of odd because everybody was yelling. So as I turn around, I see a guy coming across the street. [He] was black, had a red mask on.

* * *

At that point when he was coming closer to me, I didn't recognize him at that time.

Okay. As he approached me, I acted like I was trying to get back in the house. He says, "Do you know what time it is? Lay down, get on the ground."

So I turned around and looked at him, and I told him, "I'm not getting on the ground."

At that time, I lunged off the step but he had a gun. He had a gun in his hand. At that time I lunged up the step. And as I came down off the step, he was on the sidewalk, he shot me in my chin. And me collapsing on him, I grabbed him in a bear hug and secured the gun under my left, left arm. And as I proceeded to slam him on the ground, he-we both fall to the ground. I gets up. I runs up the steps to try to get back in the house because he had already shot me in the face. He shoots me in the buttocks.

And then I turned back around because I can't get in the house at this time. I grabs his armpits and we weretussling the whole time. The whole time we're tussling[.] ... He kept shooting just rapidly.

As we were tussling, I pulls the mask that he had, the bandanna that he had on his face completely off, and, like, I sees him. I said-so he keeps on shooting.

* * *

When I took the mask off, I said, I recognized his face.

The assailant finished shooting and ran off, while appellant returned to the house and "laid on the bed because I was in shock that I got shot." A neighbor arrived and appellant was eventually hospitalized.⁴

Appellant had recognized his assailant after he pulled off the mask, and recalled that his name was Corey Harrison. Appellant had known Harrison "through the neighborhood," and cited an incident in the past involving dirt bikes:

I used to drive-I used to have dirt bikes in my mother's yard. That's my mother's home. And I used to take the kids out Sunday, little kids in the neighborhood on Sunday and take them dirt bike riding.

And one particular incident, the dirt bike come up missing. They broke inthe yard and took the dirt bikes. And he said that he did-his name-they called him Seed or something, Corey Harrison.

Appellant denied having any other dealings with Harrison, and had not spoken with him in months. He insisted that there was no "drug dispute with Corey Harrison[:]"

[APPELLANT'S COUNSEL]:

Q So I just want to get this straight. So you're telling us there was no drug dispute with Corey Harrison, the man who shot you?

A Absolutely not.

Q Nothing related to him at all?

A Absolutely not.

Q Okay. You had just seen him with the dirt bikes and you had seen him around, but there was no dispute over territory?

A Absolutely not. Absolutely not.

The Board then examined Investigator Anita McKoy. McKoy interviewed appellant, and also accessed appellant's records in the Criminal Justice Information System. She testified without objection:

As part of my investigation, I had went to Criminal Justice Information System. On Mr. Marks' application he had listed that he was robbed and shot and he had listed the offender of Corey Harrison, so I did a CJIS check on both individuals.... Mr. Marks was also listed on CJIS as a drug kingpin and there were multiple distribution charges of handgun and selling around school.

Also, a look at Mr. Harrison's record, he was known to sell in the area, the vicinity where the shooting of the victim, took place.

A review of the police report indicates the incident as a[n] assault, but according to Mr. Marks' application in his brief description said, "I was robbed and shot." And also in my interview with him, he said he had over $1,000 in his wallet. So I think that would have been pertinent information to pass on to the police.

* * *

[COMMISSIONER ROBERTS:] The designation of drug kingpin, where did that come from?

A That came from Harford County. I think it was in 1993. He was convicted ... 1/15/93, Harford County, CDS. It was listed as-charged with drug kingpin and distribution, et cetera, firearm. And transporting a deadly weapon.

Appellant's counsel argued that these records were not accurate:

[APPELLANT'S COUNSEL]: If I may interrupt. Can I-I want Mr. Marks to talk about his criminal history,because he doesn't have multiple convictions. That's not correct.

After the Board assured counsel that she could examine appellant about the accuracy of his records, the examination returned to the investigator. McKoy then elaborated on discussions with a detective that underscored her suspicions:

On 3/30/07 I had a telephone interview with Detective Miller, and Detective Miller had conveyed that Corey-just want to back up for a minute. Malcolm Marks was shot on 9/17/06 and Corey Harrison was shot six days later, 9/23/06, and he was shot and killed.

The conversation with Detective Miller advised us that this was over drug territory, territory [in] the area of Robb Street and 20th Street.

* * *

And that Malcolm Marks has the majority of the neighborhood, most of the territory, and Corey Harrison had a smaller part of that area.

Appellant was examined further by his attorney about his criminal record:

Q You were, as you told me, ... had a drug-related conviction, so just tell us about that.

A 1993 I had a drug conviction.

* * *

Distribution of CDS. The kingpin charge was dropped, and it was dropped. They charged me with a kingpin charge and they dropped it. They ended up giving me distribution with intent in '9[3].

* * *

Wearing and carry[ing] a handgun, that was all in the same case....

* * *

1999, I got locked up also for simple possession. I got a simple possession charge.

Appellant was also asked about the $1,000 that had been in his possession on the night of the...