Mayhew v. State, 0475

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Wright, J.
Docket NumberNo. 0475,0475
Decision Date19 August 2015


No. 0475


September Term, 2014
August 19, 2015


Wright, Reed, Alpert, Paul E. (Retired, Specially Assigned), JJ.

Opinion by Wright, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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A jury in the Circuit Court for Prince George's County convicted Brian Mayhew, appellant, on two counts of first and second degree murder, use of a handgun in the commission of a crime of violence, and related offenses. Appellant appeals as of right and challenges two evidentiary decisions by the trial court. He first contests the trial court's allowance of the expert testimony of the State's fingerprint expert, and then asserts that the trial court erred in admitting recorded telephone conversations without authentication.1

For the reasons that follow, we shall affirm.


Because appellant does not challenge the sufficiency of the State's evidence, a full recitation of the evidence is unnecessary to address the issues before us. See Hill v. State, 418 Md. 62, 66 (2011); Westray v. State, 217 Md. App. 429, 434 n.2, cert. granted on other grounds, 440 Md. 225 (2014); Washington v. State, 180 Md. App. 458, 461-62 n.2 (2008) ("recitation of trial evidence unnecessary to address issue on appeal") (citation omitted); Whitney v. State, 158 Md. App. 519, 524 (2004); Pearlstein v. State, 76 Md. App. 507, 520 (1988) (unnecessary to recapitulate all evidence presented at trial).

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This case involves the murders of Anthony McKelvin and Sean Ellis on May 30, 2011. The two men were shot while seated in a Lexus automobile at London Woods. Appellant, along with a second individual, was implicated in the murders.2

The key testimony for the State came from Nicoh Mayhew's testimony before the grand jury.3 Nicoh was appellant's uncle, Kenan Myers was a "cousin through marriage," and Nicoh had also known McKelvin and Ellis. Because Nicoh was murdered before trial, his testimony was introduced instead, and read to the jury by Detective Tariq Hall.4 On the afternoon of the shootings, Nicoh saw the four men at Booker Terrace playground in Seat Pleasant. Appellant and Myers arrived at Booker Terrace on foot; Ellis and McKelvin drove there in Ellis's Lexus.

Nicoh was solicited to be involved in the events of this case when Myers called him to ask whether Nicoh could obtain some bleach and gasoline. Nicoh was not particularly concerned about getting these materials right away, and so he visited with his girlfriend's family and "went about his business." Later, Myers called Nicoh again, and

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asked whether he had obtained the bleach and gasoline. Myers urged Nicoh to get these items and meet him at London Woods, which Nicoh described as a "back little road."

Nicoh bought the bleach at a convenience store, five dollars worth of gasoline at a nearby filling station, and proceeded towards the rendezvous point with Myers. He was unsure how to find the London Woods location but saw the silver Lexus as that car was backing up "into like a cut." Nicoh was driving forward when he heard four or five gunshots.

After hearing the gunfire, Nicoh pulled up, jumped out of his car, and demanded to know what was "going on." The others cautioned him to "be quiet." Myers and appellant hurried to remove items from the Lexus and place them in Nicoh's automobile. Myers and appellant then poured the bleach and gasoline in and on the Lexus.

Nicoh approached the Lexus and saw that Ellis and McKelvin were "out;" that they had been killed. Appellant and Myers asked Nicoh whether he had any matches. After Nicoh replied that he did not, the three men then drove to Nicoh's cousin's house on J Street. Appellant and Myers stored the boxes of items that had been taken from the Lexus in the back yard. In the meantime, Nicoh refused their request to return them to the Lexus to set the car aflame.

Myers and appellant left for the site of the shooting and returned after about twenty minutes. In the meantime, Nicoh went inside his cousin's house and called his brother, Gillie Mayhew. When Myers and appellant returned, they said that the police had already

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arrived at the scene by the time they reached the Lexus. The two men told Gillie Mayhew, who had arrived at the house in the interim, that Ellis and McKelvin were "done." Myers and appellant counted money that had been in a grocery bag. After this, the two parted and left. Before leaving, they asked Nicoh whether he was "all right," and the latter complained that they were "all wrong to even bring [him] in on this."5

Nicoh saw Myers and appellant over the next two days and assured them that he was "good," because he did not want them to suspect that he was concerned about the events of that night; that he was "telling." In truth, Nicoh was afraid and was bothered by what had happened. He was also concerned that he would be implicated in the shootings because he had purchased the gasoline and bleach. Early the following morning, at about 1 a.m., Nicoh went to see his girlfriend, Shawntia Sams. She testified that Nicoh "was bothered." Concerned about the shootings and the fact that family members had brought him into these events, Nicoh decided to go to the police.

The State presented testimony that suggested that appellant and Myers sought to intimidate Nicoh. On November 27, 2012, Nicoh visited his brother, Joseph Crockett, at the Detention Center in Upper Marlboro. According to a corrections officer, Mr. Fowler, it was during this jail visit that appellant and Myers also appeared in the inmate portion of the visitor room and, for a brief period, joined Crockett during Nicoh's visit. Sams

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testified that, after this jail visit, Nicoh appeared to be "paranoid." Cynthia Mayhew, the mother of Joseph Crockett, Nicoh Mayhew, and Gillie Mayhew, recalled that Nicoh had intended to testify against appellant and Myers, but that he "seemed like he got scared" after November 27, 2012.

Nicoh's fears were justified. Mrs. Mayhew saw him every day in December, 2012. He would regularly show up between 8:30 and 9:30 a.m. at her house on Seat Pleasant Drive. Nicoh kept to this routine on December 19, 2012, when he was murdered outside her front door.

Gillie Mayhew testified that Nicoh Mayhew was his brother and that appellant was his nephew. Gillie was also acquainted with Sean Ellis. Gillie was a reluctant witness whose story changed from his version of events as stated before the grand jury and to police, and his testimony at trial.6 He denied getting a call from Nicoh on the night of the shootings, and stated that he did not see Nicoh, Myers, or appellant at the J Street address.

Because Gillie sought to distance himself from his grand jury testimony, the State introduced his prior statement to officers and the grand jury testimony. In his testimony before the grand jury, Gillie acknowledged that Nicoh called him on May 30, 2011, that he went to the J Street house, and that, once there, he saw Nicoh, appellant, and Myers. Gillie had told the grand jury that appellant said "they done," referring to "Sean and

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Tony." He confirmed that those two were the men who had been shot and killed. In the earlier statement, Gillie said Myers talked about pouring gas over a car, and Gillie also said he saw appellant and Myers counting money from a grocery bag.

On cross-examination, Gillie claimed that his earlier statements and grand jury testimony were not true. Gillie explained that he spoke with Nicoh at the station, because they were in adjoining interrogation rooms, and that Nicoh told him to give the statements to police. Gillie insisted that he had lied in earlier statements and testimony in order to protect his brother. Instead, he met with Nicoh "around Seat Pleasant." He insisted that appellant was not responsible for the shootings.

Officer Chad Miller responded to the scene of the shooting and observed the Lexus. He recalled that the Lexus appeared to have been doused with gasoline or bleach. As he drew closer to the car, Officer Miller saw two people, later identified as McKelvin and Ellis, sitting in the front and rear passenger seats. They had been shot.

Jerel Wright is an evidence technician with the Prince George's County Evidence Unit. He examined the Lexus and recovered three shell casings from the rear driver's side, a bullet from the rear passenger side, and a bullet fragment from the car's front passenger door. Wright also found a bottle of Clorox in the driver's seat and a gasoline container in the car's trunk.

Detective Felipe Ordono was the lead investigator on this case. When he arrived at the scene of the shooting on the evening of May 30, 2011, he saw two bodies in the

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Lexus as well as a bleach bottle from 7-Eleven. Detective Ordono would later view surveillance videos that showed Nicoh, on the night of the shootings, purchasing a bottle of bleach from a local 7-Eleven at 10:44 p.m. and five dollars worth of gasoline from a local filling station at 10:35 p.m.

After viewing the videos, Detective Ordono sent officers to...

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