Marlin v. State

• Decision Date: 30 April 2010
• Citation: 192 Md. App. 134,993 A.2d 1141
• Parties: Andre MARLIN a/k/a Kendrick Martin v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

993 A.2d 1141

192 Md. App. 134

Andre MARLIN a/k/a Kendrick Martin v. STATE of Maryland.

No. 1032 September Term, 2008.

Court of Special Appeals of Maryland.

April 30, 2010.

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George E. Burns, Jr. (Elizabeth L. Julian, Acting Public Defender, on the brief), Baltimore, MD, for Appellant.

Jessica V. Carter (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: HOLLANDER, WOODWARD and KEHOE, JJ.

HOLLANDER, Judge.

Andre Marlin, a/k/a Kendrick Martin, appellant, appeared in the Circuit Court for Baltimore City on charges of attempted first degree murder and related offenses. Following a bench trial, the court found appellant guilty of first degree assault; use of a handgun in the commission of a crime of violence; reckless endangerment, and related offenses.¹ The court sentenced appellant to 10 years' incarceration for first degree assault; a concurrent sentence of 5 years in prison, without the possibility of parole, for the handgun conviction; and a concurrent term of 5 years for reckless endangerment. The remaining convictions were merged for sentencing.

On appeal, appellant presents the following questions for our review:

I. Was appellant improperly convicted on the basis of unsworn statements?

II. Did the trial court err in not merging reckless endangerment with first degree assault?

For the reasons set forth below, we shall vacate the sentence for reckless endangerment, but otherwise affirm the judgments.

FACTUAL BACKGROUND

This case arises from events that occurred on January 4, 2006, when Derrick Williams was shot in the back. Detectives Ryan Guinn and Shawn Reichenberg were among the police officers who responded to the scene of the shooting. Williams was transported to the hospital by ambulance. Later that evening, after Williams was released, he was brought to the police station to make a statement. Because Williams was "incoherent from the medication," however, Detective Guinn sent him home.

Williams contacted Detective Guinn on January 5, 2006, and provided a statement that day. He told Detectives Guinn and Reichenberg that appellant was the person who shot him. Thereafter, Williams was shown a photographic array containing photos of six men, including appellant. According to the officers, Williams immediately identified appellant as the shooter. On the back of the sheet of photographs, Williams wrote: "This is the guy who shot me. However, I am not going to Court, and if I do I am not going to said sic nothing."

Williams also provided a recorded statement, in which he again identified appellant as the shooter. But, Williams also stated: "If I go to court, if you all was to arrest Mr. Martin, I'm going to say that he ain't do it and I don't know nothing."

Detective Guinn conceded that, apart from Williams's statements implicating appellant, no other evidence led to appellant as the shooter. The following colloquy occurred on cross-examination:

DEFENSE ATTORNEY: So, you really don't know exactly who shot this gentleman, Derrick Williams, do you?

DETECTIVE GUINN: No.

Williams testified that at about 7:45 p.m. on January 4, 2006, while he was trying to buy drugs, he was shot in the back. But, Williams claimed that he did not "remember" who shot him. He also testified that he did not "know" appellant, although he might have seen him in "passing." Williams identified his signature and handwriting on the back of the photo array, but he had no recollection of making any statements to the police. Williams explained that, at the time he was shot and when he spoke to the detectives, he was "strung out, real strung out" on cocaine, heroin, and alcohol, and was "out of it."

The following colloquy occurred on cross-examination:

DEFENSE ATTORNEY: So, under oath here today, sir, did Kendrick Martin shoot you?

WILLIAMS: I don't remember.

DEFENSE ATTORNEY: Okay.

WILLIAMS: I don't remember who shot me.

DEFENSE ATTORNEY: So, you—so you can't say it was Kendrick Martin.

WILLIAMS: I was—I was—

DEFENSE ATTORNEY: Is that fair to say?

WILLIAMS: I think it's fair to say. I was so high at that time I couldn't even see my own hand in front of my face.

Detective Reichenberg testified after Williams. In addition to the evidence discussed earlier, he claimed that Williams said he had been drinking, "but he didn't say he was high," despite having been asked that question. Moreover, the detective denied that Williams said he was shot while trying to buy drugs. Nevertheless, Detective Reichenberg conceded Williams's pretrial statements were the only evidence against Mr. Martin.

Williams's medical records were admitted by stipulation. They established that he suffered a gunshot wound on the date in question. The defense did not call any witnesses.

In closing argument, the prosecutor stated, in part:

The State does feel that this is a first degree assault case, at a minimum, due to the injuries of the victim.

* * *

Your Honor, he made it very clear that Kendrick Martin is the man who shot him....

* * *

So, I think, Your Honor, that it is a first degree assault. He does identify him. He picks him out in a photo array and says: "This is the guy who shot me." Given the nature of his injuries, he was shot in the back area, which could have paralyzed him, quite honestly....

In response, the defense attorney said, in part: "I do not think that they've met their burden in any counts." Further, he argued:

The police don't ask Williams why he was out there. They don't even ask him why there would be any motivation for this young man to shoot him, whatsoever. They don't have any other witnesses whatsoever to point to Kendrick Martin. The only thing they have, Your Honor, is a witness who states very clearly that he was high both, at the time he was shot, and at the time in which he gave a statement.

In rendering judgment, the trial judge said, in part:

Here's the problem for me, from the— looking at the defense side of this case, is I generally tend to believe what a person says the first time is the truth. All the other nonsense that they come up with at a later date is for some ulterior motive.

Here we have a guy who actually tells us in advance what he's going to do on the stand. And, then, true to his word he comes in here and does it. I believe the first version. I find the defendant guilty beyond a reasonable doubt of first degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence.

Having said that, I also feel some sympathy for the defendant, because I get the sense there's more going on between these two guys. There's something else happening here which nobody is telling me, right? And, I wouldn't be amazed at all if he didn't—he had no reason to shoot this guy, it was in the context of something else going on, and this guy may have been the poor fool standing there at the moment.

The court proceeded to sentencing.² The defense attorney did not ask the court to merge any of the offenses for sentencing purposes.

Additional facts will be provided as necessary to the discussion of the issues.

DISCUSSION

I.

Appellant contends that he "was improperly convicted on the basis of unsworn statements." However, he does not directly challenge the admission of Williams's pretrial statements as substantive evidence.

The State casts its response in terms of sufficiency of the evidence and relies on the admissibility of Williams's prior inconsistent statements as substantive evidence. It asserts: "The evidence was sufficient to sustain Marlin's convictions where the trial court admitted, without any objection from defense counsel, the victim's prior inconsistent statement identifying Marlin as the person who shot him on January 4, 2006."

According to the State, appellant has waived his complaint, because he failed to object to the admission of Williams's pretrial statements, which were offered as substantive evidence. Alternatively, even if preserved, the State maintains that Williams's statements were properly admitted to prove appellant's criminal agency.

Preliminarily, with respect to any underlying challenge to the admission of Williams's pretrial statements, we agree with the State's waiver contention, because appellant failed to object to the admission of the statements as substantive evidence. To the contrary, appellant's counsel affirmatively noted that he had no objection. See Md. Rule 4-323(a) (stating that objections to evidence must be made as soon as the challenged evidence is offered or as soon as the grounds for objection become apparent); Md. Rule 8-131(a) (providing that the appellate court will not ordinarily address issues not raised in or decided by the trial court).

Alternatively, the statements were properly admitted as prior inconsistent statements, in accordance with the landmark case of Nance v. State, 331 Md. 549, 560-61, 629 A.2d 633 (1993) and Maryland Rule 5-802.1. We explain.

In Nance, the Court of Appeals "carved out an important exception to the general rule against the admissibility of prior inconsistent statements as substantive evidence." Stewart v. State, 342 Md. 230, 237, 674 A.2d 944 (1996) (explaining Nance). Departing from the longstanding prohibition against use of a witness's prior inconsistent statement as substantive evidence, the Court opted for a limited version of the "modern rule," permitting prior inconsistent statements signed or adopted by the declarant to be admitted as probative evidence so long as the declarant is available for cross-examination at trial. Nance, 331 Md. at 565, 569, 629 A.2d 633. The Nance Court held, inter alia, that the factual portion of a witness's prior signed statement is admissible at trial as substantive evidence when inconsistent with the witness's in-court testimony, so long as the witness is subject to cross-examination concerning the statement. Id. at 570-71, 629 A.2d 633; see Tyler v. State, 342 Md. 766, 775, 679...